FAYETTEVILLE – Fayette County Circuit Court Judge John W. Hatcher, Jr. has granted a Charleston anesthesiologist’s motion to dismiss a malpractice claim against him.

On July 8, Hatcher ruled for Dr. Timothy Deer in Deborah Jean Stone’s lawsuit, which was brought on behalf of the estate of her late husband Harold.

On Jan. 30, 2012, Harold died because the Prometra Pump System implanted in him in 2007 by Dr. Deer released toxic levels of morphine during a 2012 MRI on his knee, the complaint says.

When Deborah Stone prepared to file her lawsuit, she served a Notice of Claim and Screening Certificate of Merit on Dr. Deer.

According to Hatcher’s order, the Certificate of Merit was authored by Frank G. Shellock, who is a physiologist. Shellock is not a licensed physician and is not a health care provider, as defined by the Medical Professional Liability Act, Hatcher ruled.

When Dr. Deer’s counsel argued the Certificate of Merit was not valid, Stone’s attorneys disagreed. They filed the lawsuit without correcting the deficiencies, Hatcher ruled.

“The failure to comply with the statutory prerequisites before filing a complaint in a medical professional negligence action renders the complaint invalid and deprives the court of subject matter jurisdiction,” Hatcher wrote.

Also named as defendants are Flowonix Medical, Thomas Health System, Dr. Phillip Surface and a Jane Doe.

Thomas Health System does business as Metro MRI.

Flowonix Medical manufactured the Prometra Pump System and knew it was hazardous for a person who had the pump to undergo an MRI, the complaint says.

Dr. Surface ordered Harold to undergo the MRI at Metro MRI in January 2012, the complaint says.

When Harold called Dr. Deer’s office to discuss, he was told by the Jane Doe defendant to proceed with the MRI, the complaint says.

Flowonix is vicariously liable because it contracted Dr. Deer to recruit patients to have the “experimental” pump placed in their bodies, the complaint says. Dr. Deer had pumps implanted in 16 of his patients, including Harold, the complaint says.

The plaintiffs are represented by Timothy R. Conaway and Benjamin M. Conaway of Conaway & Conaway in Madison and James C. Blankenship III of Fayetteville.

On Sept. 3, Hatcher denied the plaintiffs’ motion for reconsideration of the order granting the motion to dismiss.

However, on Sept. 10, Hatcher denied Flowonix’s motion to dismiss. It argued the plaintiffs must specifically allege that Flowonix violated a Food and Drug Administration-imposed requirement.

Hatcher found that the plaintiffs have met the pleading standard for claims for relief.

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

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