CHARLESTON – Among the cases argued before the state Supreme Court this week was an anticipated one from Mason County challenging the portion of a 2003 medical malpractice reform law requiring a certificate of merit.
On Jan. 22, the justices heard arguments in the case of Westmoreland v. Vaidya. In the case, Dr. Danny R. Westmoreland, a Mason family physician, is challenging the decision of a circuit court judge dismissing his malpractice suit against Point Pleasant urologist Dr. Shrikant K. Vaidya.
Specifically, Westmoreland maintains that the portion of the 2003 amendment to the Medical Professional Liability Act which requires a physician to outline a theory of liability in a malpractice case in order for it go forward creates an undue burden on a plaintiff.
Also, he believes Kanawha Circuit Judge Tod J. Kaufman erred in dismissing the portions of his suit dealing with battery and slander, which are governed by different statutes.
Kaufman was appointed by the Court to hear the case when both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves in October 2005.
Westmoreland's attorney, Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, began his argument by recounting the allegations Westmoreland leveled in his initial complaint and suit, that Vaidya's removal of a stent from Westmoreland's urterer in 2003 resulted in him developing Peyronie's Disease. The procedure, Bright said, was done without anesthesia while one of Vaidya's assistants held Westmoreland down despite his repeated demands that Vaidya stop the stent removal.
Before he could finish recounting the events that lead to Westmoreland's suit, Justice Robin Jean Davis stopped Bright, and asked him to get to the point. Acknowledging that the "facts in this case are horrific," Davis asked Bright to "please address the law."
Bright complied, and began to tell the Court that Westmoreland, who represented himself pro se for most of the case, made a concerted effort to find another urologist who would sign a certificate of merit. However, he said those efforts were to no avail as they either didn't want to help because of their close association with Vaidya, or wanted a fee of upwards of $40,000.
This prompted Justice Larry V. Starcher to chime in and say that though a person of means like Westmoreland could afford such a fee, it creates "a burden that a poor person couldn't meet."
"It seems to me that $40,000 seems a little steep," Starcher said. "I guarantee you that the average person on the street couldn't meet this."
Justice Joseph P. Albright Jr. followed up Starcher's comments asking Bright if Westmoreland checked outside the local market for a urologist. One was found in Pennsylvania who wanted $600 just to view the medical records, and Vaidya's notes, Bright said.
"That's reasonable," Starcher noted.
Nevertheless, Bright said the certificate of merit requirement has created a "cottage industry" for physicians to profit as expert witnesses.
In taking his turn to speak, Vaidya's attorney, Thomas J. Hurney with the Charleston law firm of Jackson Kelly, said that the MPLA has withstood previous challenges, and doesn't see any reason for the Court to strike it down in this case.
Nevertheless, Davis asked Hurney, since prior challenges to the MPLA didn't address allegations of battery, if Westmoreland's malpractice case could still go forward without a certificate of merit. Hurney conceded "it could."
In the course of Bright rebutting Hurney's arguments, Starcher inquired as to why Westmoreland had been "chintzy" in not seeking the assistance of legal counsel until after the case was dismissed.
Much like seeking another physician to sign a certificate of merit, Bright said Westmoreland's search was not for a lack of trying.
"He's had some issues with other attorneys including one who allegedly stole $15,000 from him," Bright said referring to Raymond G. Musgrave, a Point Pleasant attorney Westmoreland initially retained in the case.
Regardless if Westmoreland, or any plaintiff in a malpractice case in that matter, had legal counsel or not, Bright said it's incumbent on the Court to clarify the certificate of merit requirement.
"Section C of the MPLA is confusing enough to attorneys, let alone pro se plaintiffs," Bright said.
West Virginia Supreme Court of Appeals case number 33459