POINT PLEASANT – A Mason County physician is asking the settlement he reached last year with a Point Pleasant urologist be set aside in light a Jackson County man's lawsuit alleging he was instructed to provide false information in the case.

Dr. Danny R. Westmoreland on Jan. 7 filed a motion to vacate the settlement reached a year earlier in his medical malpractice suit against Dr. Shrikant K. Vaidya. As grounds for his motion, Westmoreland cited claims made in the wrongful termination suit Tommy Fouty filed against Vaidya alleging he was fired in retaliation for expressing objections to signing a false affidavit that would absolve Vaidya of the fraud claims Westmoreland raised in his suit.

In November, Fouty, of Millwood, alleged in his suit, Vaidya, in a letter dated Dec. 7, 2009, informed him his services as a lab tech would no longer be needed after Dec. 31. Though he verbally told Fouty his termination was due to both he and clinic not being able to get their medical malpractice insurance renewed, Vaidya never stated that in the letter.

However, Fouty claims his termination stemmed from an incident a month earlier when he refused to sign an affidavit he believed contained "false or misleading information" regarding Vaidya's removal of a stent from Westmoreland's uterer that resulted in the medical malpractice suit. According to his suit, Fouty rejected signing an affidavit that claimed Westmoreland brought with him an IV kit with Valium the day of the stent removal in 2003.

Later, he alleges Vaidya's office manger brought him a revised affidavit to sign claiming he had no knowledge if the IV kit Westmoreland brought with him contained Valium. Despite his objections, Fouty says he signed it out of fear of retaliation when the office manager told him he had no choice but to sign it.

Westmoreland's suit, which was filed in 2005, was dismissed a year later on the grounds he failed to file a certificate of merit as required by the 2003 amendment to the Medical and Professional Liability Act. However, the state Supreme Court in 2008 remanded the case back to Mason Circuit Court with instructions Westmoreland be given time to file one since he previously demonstrated he made a good faith effort.

The Court did not comment on claims Westmoreland made against Vaidya for fraud, slander and battery. In addition to medical malpractice, Westmoreland claimed Vaidya had his assistant restrain him during the stent removal, and asserted prior to it he performed intravenous sedation on himself.

According to the state Board of Medicine, the suit was settled Jan. 6, 2010, with Vaidya's insurance carrier paying Westmoreland $125,000.

However, Westmoreland now wants the settlement held for naught in light of Vaidya "obstruc[ing] witness [Fouty] form [sic] revealing the truth hat was absolutely essential in my case." In the motion he filed pro se, Westmoreland says he is "making the court aware that Mr. Fouty was indeed the assistant that did restrain me against my will, which resulted in permanent body damage from the resultant assault and battery."

In addition to vacation of the settlement, Westmoreland asked that sanctions be placed on all parties involved in "witness intimidation and filing of false affidavits." Also, he noted he would be asking the state Board of Medicine to revisit the complaint he filed against Vaidya "since Fouty has admitted by his filing that justice was denied by the W[est] V[irginia] court system."

As of presstime, Vaidya had not filed an answer to either Fouty's suit or Westmoreland's motion.

Mason Circuit Court case number 05-C-97 (Westmoreland) and 10-C-140 (Fouty)

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