Insurer says $1M its limit in wrongful death claim of estate of 18-year-old

WHEELING – An insurance company is arguing it can’t be held liable for anything more than a $1 million policy limit as its insured fights negligence claims arising from the death of an 18-year-old West Liberty University student.

Medicus Insurance Company filed a complaint in U.S. District Court for the Northern District of West Virginia in Wheeling on Oct. 18. Named as defendants are Robert L. Cross, M.D., Wheeling Surgical Associates and the Estate of David McFadden.

Medicus issued a policy to Wheeling Surgical Associates and Cross on Oct. 1, 2012, that had a policy limit of $1 million per claim.

The complaint seeks “a declaration that Medicus is not required to indemnify Dr. Cross and Associates for anything other than ‘all sums for which the Insured… becomes legally obligated to pay as damages… because of medical incidents.’”

The insurance company is seeking the judgment apparently because the claim might exceed the $1 million limit.

Three weeks after the notice of claim was served, McFadden’s estate offered a settlement of $1 million, but it was rejected. Cross has allegedly told the company it would be responsible for any excess verdict.

McFadden’s estate filed a lawsuit on June 12 in Ohio County Circuit Court.

The complaint alleges Cross saw McFadden for treatment of a condition known as idiopathic thrombocytopenic purpura.

During an office visit in October 2012, Cross allegedly told the McFadden family that he had never performed a laparoscopic splenectomy. Laparoscopic surgery is known as “minimally invasive.”

Instead, Cross told the family he would only perform an open splenectomy on McFadden, the complaint says. The family agreed.

On Dec. 20, Cross attempted a laproscopic splenectomy at Ohio Valley Medical Center even though the family never agreed to it, the complaint says. During the surgery, McFadden’s abdominal aorta was torn, causing his death, the complaint says.

The complaint makes claims of medical negligence, medical battery, lack of informed consent, fraud, tort of outrage, negligent credentialing and punitive damages.

McFadden’s estate is represented by James G. Bordas, Jr. and Geoffrey C. Brown of Bordas & Bordas in Wheeling.

Cross and Wheeling Surgical Associates filed a motion to enforce a settlement in August. It argues that they accepted the $1 million offer before an April 25 deadline.

It says a letter from Bordas to a Medicus representative offering the $1 million was sent to the wrong address.

Bordas says the motion misstates the facts and is “an attempt to create confusion in a situation that is crystal clear.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.