Vaidya
Westmoreland
POINT PLEASANT – Despite the dismissal of one, a Mason County physician finds himself defending against another malpractice suit.
On May 29, Mason Circuit Judge Thomas C. Evans III granted a motion by attorneys for Dr. Shrikant K. Vaidya to dismiss a lawsuit filed against him by Frank Eugene Meadows.
Court records show Meadows, of Henderson, filed suit against Vaidya in July 2000 alleging he failed to properly treat Meadows for Peyronie's Disease, a build-up of plaque in the penis which makes an erection painful, and sex difficult or impossible. However, records show Meadow's suit was not served on Vaidya until almost seven years later on July 18, 2007. It was at that time Meadows retained Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, as new legal counsel.
Meadows' previous attorney, David W. Nibert, had to disqualify himself from the case after he was elected circuit judge in November 2000. In a prior interview with The West Virginia Record, Meadows said Nibert referred him to at least one attorney who tentatively agreed to take the case provided Meadows could find another doctor to testify against Vaidya.
According to Meadows, doctors he approached where unwilling to speak out against Vaidya or found his notes illegible.
Despite that, and the lack of any corroborating documentation in the court file, Evans said seven years is too long a time to effect service or process. Though prior state Supreme Court rulings have upheld service of a lawsuit beyond the 120 days required for service if "good cause" is show, Evans said Meadows' case fails all the tests set forth in the "good cause" exception.
"For seven years, the plaintiffs made no attempts to serve the defendant," Evans said in his ruling. "They claim it was because they were relying on an order leaving the case open until they retained new counsel. No such order was entered."
"There is no real explanation to justify the seven-year delay in obtaining new counsel," Evans added. "The court concludes that Plaintiffs have been less than diligent in prosecuting this civil action."
Despite dismissing the case for insufficiency of service, Evans left open the possibility it could be refiled. In addition to asking the case be dismissed on service of process grounds, Rob J. Aliff and Laurie K. Miller, with the Charleston law firm of Jackson Kelly asked it be dismissed on statute of limitations grounds.
However, Evans noted that since Meadows' alleged injury occurred on July 20, 1998, and his suit was brought on July 19, 2000, "it was not clear that the statute of limitations has expired." Because any dismissal on service of process grounds is done without prejudice, Evans said Aliff and Miller would have to argue the statue of limitations questions should Meadows decide refile his suit within a year.
Similar allegation, different sex
Thirty days after Meadows' case was dismissed, Noell Beth and Donald Stivers of Middleport, Ohio, filed suit against Vaidya in Mason Circuit Court. They, too, filed their suit with Bright's assistance.
According to their complaint and suit, the Stivers allege Beth "sought Vaidya for urological care in the early 2000s." Because both Vaidya and Pleasant Valley Hospital, who is named as a co-defendant in the suit, have "thus far refused to provide Plaintiff's counsel with medical records relevant to these claims ... no specific dates of treatment are available at this time."
However, the Stivers claim that at least on two occasions in 2002, Vaidya treated Beth for urethral dilation. Vaidya's treatment, records show, "not only failed to improve her medical condition, but also caused Stivers to suffer serious and permanent injury to her urological system in the form of permanent incontinence."
In addition to one for malpractice, the Stivers make a claim of battery against Vaidya. Though records are unclear as to when, the Stivers allege that during one of the times Beth was treated, "Vaidya refused to terminate the procedure when the Plaintiff repeatedly demanded that he do so and Defendant Vaidya continued the procedure after the Plaintiff's repeated demands that he terminate the procedure."
Court records show that Beth was not aware of her injuries until she consulted with Mason family physician Dr. Danny R. Westmoreland in December 2006. Along with Westmoreland signing the required certificate of merit, Bright states "a reasonable person would not have know that the malpractice was committed until the Plaintiffs discovered the malpractice through Dr. Westmoreland."
As a result of Vaidya's alleged negligence, Beth Stivers claims she suffers from pain in the past, present and future, humiliation, embarrassment and inconvenience, loss of enjoyment of life and medical expense. Donald claims a loss of consortium with Beth.
The Stivers are asking for unspecified damages from Vaidya and PVH.
The case has been assigned to Nibert.
Mason Circuit Court, Case Nos. 00-C-132 (Meadows) and 08-C-537 (Stivers)