Delores Clonch shows a diagram of how the doctor would remove a portion of and later reattach her colon. (Photo by Lawrence J. Smith)
CHARLESTON – The allegations leveled against a former Mason County doctor in an Illinois wrongful death suit bears a resemblance to the allegations a Gallipolis, Ohio, woman leveled against him in a 2000 malpractice suit.
The allegations in the latter suit were only recently made public because a judge ordered the case sealed due to the nature of "scandalous allegations" raised in it.
Last month, The West Virginia Record reported that Dr. Jack M. Levine was named as a party in a wrongful death suit filed by Penny Shasteen of Shelbyville, Ill. According to the Shelbyville Daily Union, which first reported the story in its Nov. 7 edition, Shasteen alleges that Levine along with Shelby Memorial Hospital, the Shelby Area Ambulance Service and Dr. Arnold V. Agapito, were all in some way responsible for the death of her mother, Dona Ogilvie, on Nov. 10, 2005.
According to her suit filed as the special administrix of her mother's estate, Shasteen alleges Ogilvie suffered complications from a colonoscopy Levine performed on her on Oct. 25, 2005. Though Levine performed the surgery, Shasteen alleges 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 addition to that, Shasteen alleges Agapito, as an agent of 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."
Likewise, SAAS failed "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.
At this point, Levine is named only as a respondent in discovery.
In Illinois, a respondent in discovery is one who the plaintiff believes to have information essential to the determination of defendants who could be named at later date.
Also, a respondent in discovery must reply to all discovery requests in the same manner as a defendant. According to the article, Shasteen is asking for Levine to provide, among other things, information on why a colonoscopy was ordered when X-ray films showed gallstones, why he perforated Ogilvie's colon and why he failed to perceive that he perforated the bowel during the colonoscopy.
Shasteen's suit is not the first time someone has alleged that Levine possibly erred in perforating a bowel during surgery.
Delores Clonch made a similar allegation in the malpractice suit she filed against Levine.
However, before discovery could be conducted, the suit was ordered sealed due to unsubstantiated allegations of substance abuse on Levine's behalf that Clonch says she related to her attorney in order for him to further investigate, and not make in her initial complaint.
In an interview The Recordconducted with Clonch in July, she maintains that in early 1998 she consulted her family physician, Dr. Robert Holley, about abdominal pain and vomiting. After conducting an ultrasound, Holley told Clonch her gall bladder was "dead," and needed to be removed soon.
Holley, Clonch said, recommended Levine to conduct the surgery.
About a week after the surgery, which was conducted at Pleasant Valley Hospital in Point Pleasant, Clonch said she began feeling sick again. For almost the next year, Clonch consulted with Levine on the continual drop in her blood count.
All Levine would do, Clonch says, was prescribe medication.
Eventually, in desperation, Clonch asked that Levine readmit her to the hospital. According to Clonch, he referred her back to Holley, who in turn admitted her to Holzer Medical Center in Gallipolis.
The admitting staff at Holzer was amazed that Clonch was able to function. She remembers them telling her that her blood count was so low, that she should have been in a coma.
After running some tests, Clonch says she was told that three lacerations in her colon might be the source of her illness.
Because of the lacerations, doctors told Clonch it would be necessary to remove a portion of her colon.
She agreed, and says following surgery her blood count returned to normal.
Upon recovering from surgery, Clonch says she began to consult with attorneys about filing a malpractice claim against Levine. She eventually retained Richard M. Lewis of Jackson, Ohio, to handle her case.
Hiring Lewis, Clonch says, was a colossal mistake for two reasons.
First, he mislead her that he was licensed to practice in West Virginia, and, second, his inclusion of substance abuse allegations on Levine's behalf in her original complaint led to the case being dismissed.
Malpractice claims never aired
Though the case file is under seal, Clonch provided The Record with a copy of the complaint Lewis filed on her behalf. It bears the Mason Circuit Clerk's official time-stamp of 4:16 p.m. on Dec. 27, 2000.
In addition to Levine, Lewis named PVH as a defendant in the suit. Specifically, Lewis alleged a "negligent credentialing" claim on PVH's behalf when it "granted and continued staff privileges to Defendant Jack M. Levine, D.O. after such time that Dr. Levine exhibited a pattern of substance abuse of which the hospital should have become aware."
Clonch and her husband, Buster, first became aware of Lewis' decision to make public the allegations of substance abuse in a letter Lewis addressed to them two days after filing the lawsuit.
In his letter, Lewis said the substance abuse allegations, which specifically addressed a "drinking problem" on Levine's behalf, would have to be further substantiated to remain a part of the lawsuit.
"Otherwise, the Court upon a proper motion filed on behalf of the hospital will dismiss that particular claim," Lewis said in his letter.
Instead of PVH moving to dismiss the claim, Levine would be the one to do so. In a copy of a reply which does not bear the circuit clerk's time-stamp, but is dated May 26, 2001, and contains the signature of Levine's attorney Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, Levine not only categorically denied Clonch's allegations of malpractice, but also asked the substance abuse allegations be stricken from the court record.
"…[T]his defendant respectfully moves to strike the allegations relating to him as defamatory, scandalous and without any basis in fact and further respectfully moves that his honorable court order plaintiffs and their counsel to provide a written apology to him fully addressing these outrageous claims," Taylor said in his reply.
In reply to Levine's motion to strike the allegations, Mason Circuit Judge David W. Nibert set a hearing date of June 26, 2001. Clonch says she began to suspect she was "set-up" as she met Charleston attorney Robert Q. Sayre on the courthouse steps prior to the hearing.
According to Clonch, he was assisting in the case since Lewis not only didn't have a license to practice in West Virginia, but also was excused from the hearing due to a scheduling conflict with a divorce case in the Jackson County Court of Common Pleas. Also, Clonch said Sayre told her "'I haven't had time to prepare for this case.'"
The entire hearing centered on the allegations of Levine's substance abuse. What disappointed Clonch was that nothing related to the alleged malpractice was ever discussed."
"I thought we were going to trial on the colon thing," she said.
In addition to siding with Levine that the substance abuse allegations should be stricken from the record, Nibert went a step further and ordered the case sealed. Because the case file is sealed, the exact wording of Nibert's order is unknown.
However, Clonch provided the Record a copy of an initial draft of Nibert's order that Taylor and Sayre sent to each other via fax machine between Aug. 3 and Aug. 6, 2001. In the initial agreement, Clonch was to issue a letter of apology to Levine for raising the allegations.
About a month later, Clonch said Lewis and Sayre made a visit to her home informing she and Buster of Nibert's decision. In addition to a written apology, Clonch said Levine was asking she and Buster pay Taylor's attorney's fees.
They agreed to dismiss the suit, but on the condition that they neither pay Taylor nor write a letter of apology.
"There was no way in Hell I was going to apologize," Delores said.
Apparently, Levine accepted the their terms as the Clonches say they received a copy of letter dated Sep. 11, 2001 Lewis addressed to Taylor saying "Enclosed please find the original Order Granting J. Levine, D.O. Motion to Strike and placing Civil Action Under Seal in the above-referenced case that has been signed by attorney Sayre and myself."
The case was dismissed from the docket on Oct. 19, 2001. The dismissal, records show, came less than a week before Levine obtained his license to practice medicine in Illinois.
Now in Ohio awaiting trial in W.Va.
In its article about the Shasteen suit, the Daily Union reported that SMH "terminated his [Levine's] employment with the hospital in early 2007. It was unclear as to why.
Since then, Levine has joined the staff of Pike Community Hospital in Waverly, Ohio. According to its Web site, Levine practices general surgery/gynecology at PCH.
Currently, Levine also is defending against a malpractice case Ralph A. Barcus of Gallipolis filed against him in Mason Circuit Court in December. The case, in which Barcus alleges Levine failed to totally remove a catheter from his chest in May 2001, is slated for trial next month before Judge Thomas C. Evans III.
Shelby, Illinois Circuit Court, Case No. 2007L27
Mason Circuit Court, Case No. 00-C-216 (under seal)