Former Mason doctor named in Ill. wrongful death suit

By Lawrence Smith | Nov 16, 2007

CHARLESTON – In addition to the one pending against him in West Virginia, a former Mason County physician is now defending himself in a civil suit in Illinois.

According to the Shelbyville (Ill.) Daily Union, Dr. Jack M. Levine is named as one of four defendants in wrongful death lawsuit in Shelby Circuit Court. Along with Levine, the suit names Shelby Memorial Hospital, Shelby Area Ambulance Service and Dr. Arnold V. Agapito.

According to the article, Peggy Shasteen filed the suit in her capacity as special administrix of the estate of her late mother, Dona Ogilvie. Shasteen alleges that SMH, SAAS, Agapito and Levine were all some way negligent in her mother's death.

With the exception of Levine, Shasteen is seeking $300,000 in damages from the defendants. The reason she is not seeking a monetary award from Levine, the article states, is because he has only been named as a respondent in discovery.

In Illinois, a respondent in discovery is someone who must reply to all discovery requests in the same manner as a defendant. Also, a respondent in discovery is one who the plaintiff believes to have information essential to the determination of defendants who could be named at a later date.

Suit alleges death followed surgery

According to the article, Shasteen alleges her mother died in her home on Nov. 10, 2005 following a colonoscopy Levine performed on her Oct. 25, 2005 at SMH. Though Levine performed the surgery, Shasteen alleges that Agapito is the most culpable because he scheduled her for the colonoscopy, rather than gall bladder surgery, and was slow to notify Levine of her post-operative pain.

In her suit, the article states, Shasteen alleges Agapito, as an agent and employee of SMH, among other things, failed to properly prep the bowl before surgery, inform Levine that the bowl was not prepped, failed to discern the bowl was not completely free of fecal material prior to surgery and failed to have the proper medical staff on-hand who could deal with post-surgery complications.

Though the article is not exactly clear, it appears that Ogilvie was transported to Decatur Memorial Hospital following her surgery.

Nevertheless, Shasteen alleges Agapito and SMH "negligently and carelessly delayed the ambulance from leaving SMH for more than an hour after it arrived…upon the determination that repair of the perforated colon could not be made at SMH."

SAAS' negligence comes into play, Shasteen alleges, when they "failed and omitted to deliver (Ogilvie) to the appropriate facility after arriving at Decatur Memorial Hospital." It is not clear as to what, if anything, happened to Ogilvie at DMH, and why and when she was released.

As a respondent in discovery, Shasteen is not alleging any negligence on Levine's behalf at this point. According to the article, however, she is asking he provide, among other things, information on why a colonoscopy was ordered when X-ray films showed gall stones, why he perforated Ogilvie's colon and why he failed to perceive that he perforated the bowel during the colonoscopy.

W.Va. case slated for trial in January

As he prepares to answer those questions, Levine is currently answering questions in the malpractice suit in which he is named as a defendant in Mason Circuit Court. That case, according to court records, is slated for trial on Jan. 29, 2008.

In the suit, Ralph A. Barcus of Gallipolis, Ohio alleges Levine inserted a catheter into his chest in November 1999. Levine later removed the catheter in May 2001.

However, Barcus alleges that Levine failed to remove the entire catheter. According to his suit, another physician in 2004 discovered that an object near Barcus' mid-left lung was a holding disc left from the catheter.

It was not until two years later that the disc was removed, records show.

In his suit filed Dec. 4, 2006, with the assistance of Michael Eachus, with the Gallipolis law firm of Eachus and Finley, Barcus named Levine at Pleasant Valley Hospital in Point Pleasant as defendants. PVH would later be dismissed as a defendant in March since it was determined Levine was not an agent of the hospital, but instead had "staffing privileges" there from 1988 to 2001.

Records show Levine's attorneys Gary A. Matthews Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, replied to Barcus' suit on Jan. 18 denying any wrong-doing on Levine's behalf.

Also, they challenged the fact that Barcus did not accompany the suit with a certificate of merit as required by the Medical and Professional Liability Act of 2003.

Because Levine's negligence was so gross, Eachus maintains, one is not needed. The case should proceed under the principle of res ipsa loquitur, or "the thing speaks for itself."

On May 16, Mason Circuit Judge Thomas C. Evans III set a scheduling order in the case. Records show Matthews and Taylor have voiced no new objections to the case against Levine moving forward without a certificate of merit.

Shelby, Illinois Circuit Court, Case No. 2007L27
Mason Circuit Court, Case No. 06-C-173

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