Justices deny Elkins doctor's request for appeal in $2 million case

By Chris Dickerson | Feb 20, 2008


CHARLESTON – An Elkins doctor has had his request for an appeal of a medical malpractice verdict denied by the state Supreme Court.

The Court on Feb. 14 rejected Dr. Kenneth D'Amato's request for the appeal by a 5-0 vote. Later that day, Randolph Circuit Judge John L. Henning signed an order for payment of judgment of nearly $2.2 million.

In January 2006, a Randolph County jury awarded Melvin Heckel $1.85 million, the highest medical malpractice award ever given in the county. D'Amato operated on Heckel's spine in 2002 at Davis Memorial Hospital in Elkins. After leaving the recovery room Heckel began to complain of sight loss, and he sued the doctor and the hospital. The hospital settled for $350,000.

Henning was awaiting the ruling from the Supreme Court before taking any more action in the case. Last month, Heckel's attorneys -– Kent Carper of Charleston and David Sims of Elkins -- had submitted a breakdown of interest on the verdict to Henning. That breakdown included nearly $350,000 in interest on top of the original award.

"Upon mature consideration of the plaintiff's position in this matter, this Court is of the opinion that the plaintiff's motion for payment of judgment ought to be and is hereby granted, in light of the Supreme Court's order rejecting defendant D'Amato's petition for appeal," Henning wrote Feb. 14. He went on to direct Circuit Clerk Philip D. Riggleman to wire transfer $2,196,402.70 to a trust.

"We were very disappointed in the court's ruling," Huntington lawyer D.C. Offutt Jr., D'Amato's attorney, said. "It's sad that our court won't even look at this case.

"I think this is a perfect example of the crying need for an intermediate appellate court."

D'Amato had requested a new trial at least three times, and each request was turned down. The latest one of those was in October by the state Supreme Court.

In August, Henning denied D'Amato's request to set aside the verdict. The doctor, through Huntington attorney D.C. Offutt Jr., argued that it should have been tossed aside because Heckel had tried to defraud the court by faking blindness.

D'Amato sought that relief last February after sending Henning a videotape apparently showing Heckel working seven days at a construction site. Heckel apparently took out an Elkins city permit for a commercial building on Martin Street. According to Offutt, private investigator Bill Pauer videotaped Heckel at the site for 50 hours on seven days from Dec. 11 to Dec. 19.

In May 2006, four months after the verdict, D'Amato also had a request for a new trial denied. D'Amato, who was represented by attorney Kenneth J. Barton, based that request on several factors.

First, he said the court erred by failing to strike the entire panel of jurors "after one member of the panel advised the court that Dr. D'Amato had operated on her daughter and had a bad outcome or as the defendant states an 'unfavorable result,'" according to the May 2 denial order.

D'Amato also argued that two doctors testified outside of their areas of expertise and that the jury verdict form was prejudice against him by having "so many blank lines and that the jury was led to believe that if it found for the plaintiffs, it should fill in each line item with some damages amount."

Randolph Circuit Court case number: 04-C-163

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