Danny Westmoreland

POINT PLEASANT – A Mason County doctor who alleges his attorney forged his signature on a 2004 settlement check, may receive his day in court if the attorney’s current bankruptcy case is dismissed.

On April 4, Helen M. Morris, the trustee assigned to oversee the bankruptcy filing of Point Pleasant attorney Raymond G. Musgrave and his wife, Twila A. Musgrave, filed a motion that the case be dismissed. In her motion, Morris said the Musgraves are delinquent in their repayment plan.

“This day comes the Trustee and moves the Court to dismiss the above-referenced case for the reason that the Debtors have failed to make payments as required by the Plan,” Morris said in her motion.

“In support of this motion, the Trustee asserts that the Debtors last payment in the amount of $250 was made on February 22, 2006. The Debtors have a deficiency in plan payments in the amount of $750 including the April 2006 payment.”

Through their attorney, Andrew Nason, partner in the Charleston law firm of Pepper, Nason and Hayes, the Musgraves filed a response to Morris’ motion on April 8 disputing the arrearage. The Musgraves, Nason wrote, “have made two payments to the Trustee in the amount of $250.”

So that the Musgraves can cure the additional $500 arrearage, Nason petitioned the court to allow them to “pay an additional $25 per month for twenty months.”

Details of bankruptcy

The Musgraves filed for bankruptcy on Oct. 13, 2005, under Chapter 13 of U.S. Bankruptcy Code. Chapter 13 allows for individuals to reorganize their debts and begin repayment approved by the bankruptcy court.

Under Chapter 13, the debtor keeps his or her property, but makes regular payments to a court-appointed trustee. Repayments take between three to five years with unpaid and eligible debts discharged at the end of the repayment plan.

According to court records, the Musgraves list 39 individuals, firms or governmental agencies as creditors. Among the creditors listed are Washington Mutual, the West Virginia departments of Tax and Revenue and Bureau of Employment Programs, the Internal Revenue Service, City National Bank, BB&T and Danny R. Westmoreland, the Mason County doctor who alleges Musgrave forged his signature on the settlement check.

According to court records, the Musgrave’s debts total to $184,000 to creditors with secured claims and $102,170.25 to creditors with unsecured claims. The Musgraves, according to court records, list their monthly income at $10,500, all coming from Raymond.

The records show Raymond earning $9,000 from his law practice and $1,500 in Social Security payments.

In their motion for repayment filed on Dec. 8, 2005, the Musgraves pledged to repay a total of $25,430.12 over the next 60 months to creditors with unsecured claims. These included the IRS and state Department of Tax and Revenue for back taxes, BEP for unpaid workers’ compensation premiums and the city of Point Pleasant for unpaid health insurance premiums.

To creditors with secured claims, the Musgraves pledged to repay a total of $11, 437.81 over the next 60 months. According to court records, the Musgraves are in arrears to Washington Mutual of Orange, Calif., BB&T of Charlotte, N.C., and One Valley Bank of Gallipolis, Ohio, for real estate payments on their home and office.

Brother to aid in repayment

Furthermore, as part of their reorganization plan, the Musgraves were to pay the bankruptcy trustee $48,816.94. According to court records, repayment was to begin in February with the Musgraves paying $250 per month for the next 60 months.

The balance was to be paid by Raymond Musgrave’s brother John C. Musgrave, director of the West Virginia Lottery and acting secretary of the state Department of Tax and Revenue.

“Debtor’s brother by will inherited property from parents,” a statement in the Musgrave’s reorganization plan reads. “Debtor’s brother will gift $33,816.14 to the debtor to complete the plan.”

It was not immediately clear when John Musgrave, 66, a former Point Pleasant mayor and U.S. Department of Agriculture official – whose current salary is $99,000 according to the state Auditor’s Office – would contribute to repayment of his brother and sister-in-law’s debts as he refused to return repeated telephone calls.

Raymond Musgrave, 70, also declined to comment.

When contacted, Musgrave said “You should look up the name of the person representing me in the records,” referring to Nason, before he abruptly hung up the telephone.

Nason was not immediately available for comment. According to court records, he was paid $2,000 to aid in the Musgrave’s bankruptcy case with $1,500 plus a $194 filing fee paid in advance with the balance of $500 paid over the next year.

Civil suit likely to proceed

The likelihood of Musgrave’s bankruptcy being dismissed leaves open the possibility a pending civil suit Westmoreland has against him may proceed. Early last year, Westmoreland filed criminal and civil charges against Musgrave in an attempt to collect a $15,000 settlement check due him.

In March 2004, Westmoreland, 52, won a lawsuit filed against him by Gallipolis, Ohio contractor Gary Barry over a dispute the two had regarding work Barry was to perform on Westmoreland’s office, which was damaged by a September 2000 fire. Though he asked for $79,000 in damages, Barry agreed to pay Westmoreland $15,000 to settle the case.

Westmoreland maintains he never received the check and alleges Musgrave, who represented Westmoreland in the suit, forged his signature on it when it was produced at Barry’s sentencing on a related criminal charge.

Though he was listed as a creditor, Westmoreland was not one to receive money under Musgrave’s repayment plan. However, according to court records, Nason filed a motion March 17 asking the court to “dismiss his [Musgrave's] claim against Danny R. Westmoreland in exchange for Danny R. Westmoreland dismissing the claim against him.”

“The debtor seeks permission to enter into an order dismissing the claim against him and his counter-claim against Danny R. Westmoreland, which would result in no claim against the estate and no money be received by the debtor on his counter-claim,” Nason said in his motion. “Debtor believes it is in the best interest of his bankruptcy estate to enter into this agreed dismissal order.”

Court records show no ruling made on the motion or a response from Westmoreland. Unless Westmoreland agrees to dismissal of the civil suit, it is scheduled for trial on August 1 in Mason County Circuit Court.

Case numbers: U.S. Bankruptcy Court for the Southern District of West Virginia, Case No. 05-31246, Mason Circuit Court, Case No. 05-C-48

POINT PLEASANT – The special prosecutor appointed to investigate allegations of forgery committed by a Point Pleasant attorney says neither his bankruptcy filing nor his brother’s position in state government has any bearing on her investigation.

Wood County Prosecutor Ginny Conley says she’s yet to determine if sufficient evidence exists to present a case to the grand jury against Raymond G. Musgrave on charges he forged the signature of Mason County physician Danny R. Westmoreland on a settlement check.

Though limited in what she can say publicly, Conley did say she hopes to render a decision soon.

“As special prosecutor, my job is to make sure justice is served and seeking a criminal indictment based only on speculation and conjecture is not serving justice,” Conley said via e-mail. “Right now, the available evidence is not sufficient. The investigation is proceeding and after further analysis of the evidence recently obtained as a result of the grand jury sitting, we will be able to appropriately evaluate whether criminal charges are appropriate.”

Bankruptcy, bother’s position ‘irrelevant’

Conley was appointed special prosecutor in February 2005 shortly after Westmoreland filed criminal charges against Musgrave.

Westmoreland alleges Musgrave forged his signature on a check for $15,000 he was to receive from Gallipolis, Ohio contractor Gary Barry from a civil suit they settled in 2004.

In addition to the criminal charges, Westmoreland also filed civil charges against Musgrave (Mason County Circuit Court, Case No. 05-C-48). Conley, who said she’s spent eight hours over the last 15 months investigating the case, said Musgrave’s bankruptcy would impact Westmoreland’s civil complaint more so than his criminal one.

“The bankruptcy may influence the civil case the victim has filed on these same issues, but not any criminal charges,” Conley said.

Also, Conley said the fact Raymond Musgrave’s brother, John, holds a high-ranking position in state government neither helps nor hinders the investigation. In fact, until asked by a reporter, Conley said she didn’t know who John Musgrave was.

“I am not sure who ‘his brother’ is and regardless it is irrelevant to this case,” Conley said.

Serving in state government since 1997

John C. Musgrave is the director of the West Virginia Lottery and acting secretary for the state Department of Tax and Revenue – one of the creditors in Raymond Musgrave’s bankruptcy. John Musgrave was first appointed Lottery director in 1997 by then Governor Cecil H. Underwood and reappointed by Gov. Bob Wise in 2001.

In November 2004, Gov. Joe Manchin appointed Musgrave acting secretary for the Department of Tax and Revenue. Musgrave continues to hold the position as Lottery director.

His combined salary is $99,000, according to the state Auditor’s Office.

John Musgrave has pledged to pay over $33,000 of the $48,000 owed to the bankruptcy trustee overseeing the reorganization of Raymond and his wife Twila’s debts. It was not immediately clear when John Musgrave would begin making payments as trustee Mary C. Morris filed a motion on April 4 to dismiss the case due to Raymond and Twila’s delinquency in making scheduled payments.

Both John and Raymond Musgrave declined to comment.

Based on what he believes is foot-dragging on her part, Westmoreland earlier this month filed a motion with Judge David W. Nibert to remove Conley and appoint a new special prosecutor. Nibert has yet to rule on Westmoreland’s motion.

POINT PLEASANT – Welders claim in a Mason County suit that their work caused neurological injuries.

Thomas Wilson of Humphrey and Associates in Charleston filed the suit June 30, on behalf of welders and others who worked near them.

The suit also seeks damages for spouses of some workers. In all, Wilson represents 21 plaintiffs.

According to the suit the plaintiffs suffered from exposure to fumes of manganese, a metallic element that strengthens steel.

The plaintiffs seek actual damages and punitive damages.

Elizabeth Ward and Jeffrey Thompson of the Motley Rice firm in Mount Pleasant, S.C., also represent the plaintiffs.

They sued three West Virginia companies, Tri-State Oxygen of Huntington, Valley National Gases of Wheeling, and Willard C. Starcher Inc. of Spencer.

They sued Ohio corporations Hobart Brothers and Lincoln Electric, and Delaware corporations AIRCO Inc. and ESAB Group.

They also left a door open to add more defendants by suing John Does.

Circuit Judge David Nibert will hear the case.

POINT PLEASANT – James Jeffrey Martin of Eskdale sued three people over an auto accident, but his attorney cannot identify one defendant and cannot find another.

Martin filed suit in Mason County circuit court in February, claiming that Codi Davis of Syracuse, Ohio, Kimberly Smith of Eskdale and “John or Jane Doe” caused an accident that injured him.

The accident happened in 2004. Martin’s attorney, Troy Giatras of Charleston, filed the suit a day before the two year statute of limitations would have run out.

In June, Giatras informed Circuit Judge David Nibert that he had not served the suit on Smith.

Giatras told Nibert a private investigator did not find Smith at her last known address. He told Nibert that neighbors said Smith went away.

Nibert extended the deadline for service of Smith to Aug. 11.

As of Aug. 16, the court had received no notice of service.

The only defendant who accepted service of the suit, Codi Davis, has argued that Martin shares the blame for any injuries he suffered.

Martin wore no safety belt, attorney William Shrewsbury of Charleston wrote for Davis in a June 27 brief.

Shrewsbury wrote, “Plaintiff’s failure to wear a safety belt was either a proximate cause or the proximate cause of plaintiff’s injury.”

Bob Martin

POINT PLEASANT – A Mason County jury recently denied the $1.3 million request of a former nursing director at Lakin Correctional Facility who says she fell when she tried to sit on a chair.

Debbie Stewart blamed the hard-casters on the bottom of her chair, an issue with which Bailey and Wyant defense attorney Robert Martin says had never been dealt.

“My closing argument in the case was that there are no cases, no literature and no statutes or rules or anything that this is any kind of problem,” said Martin, who helped represent the state’s Department of Corrections. “They had an expert that testified that he’d found all this literature on the Internet, but I argued it was all sales literature from manufacturers.”

A jury agreed with Martin, who tried the case with Justin Taylor and Ryan Flanagan.

Stewart argued that a state-purchased chair with hard-casters on the bottom of its legs being put on a hard-surfaced linoleum floor created an unsafe working environment. She says she fell while trying to sit in a chair and sought more than $1 million for her medical bills.

Martin says he didn’t argue the amount – “It screwed her up pretty good,” he said – but chose to argue the liability issue.

“I had a very heated cross-exam of their expert and ultimately got him to say sitting down in a chair at work, regardless of the type of chair, is a common-sense issue,” Martin said.

Judge David Nibert presided over the trial, which culminated in Aug. 13′s verdict.

C. Dallas Kayser of Point Pleasant law firm Kayser, Layne and Clark represented Stewart.

During his cross examination of Stewart, Martin says she could not testify that she definitively looked down at the chair before attempting to sit in it, only that she couldn’t imagine not doing it.

In Martin’s closing argument, he sat in the witness chair while he addressed the jury.

“I told them that she couldn’t look you in the eye and tell you that she watched out for her own self,” Martin said. “In our society, it’s become particularly popular to blame somebody else for our own mistakes, particularly when we get hurt.”

The jury was out for 3 hours, 25 minutes.

Had she been victorious, Martin says Stewart could have only recovered $1 million. Normally, he explained, the State can’t be sued because of sovereign immunity.

But under a Board of Risk Insurance Management case such as Stewart’s, the State has a $1 million insurance policy.

“You can only sue the State up to its insurance coverage,” Martin said.

Regardless, Martin said he probably will think twice the next time he goes to sit in a chair.

“How often do you think about that?” he said. “The Department of Corrections probably buys 200-300 chairs a year for every jail and prison in the state. That’s just crazy.”

POINT PLEASANT – Attorney Troy Giatras of Charleston said he has served a suit on a defendant that at first he could not find.

In June, Giatras received a 45-day extension to serve a Mason County lawsuit on Kimberly Smith, one of three defendants that Jeffrey Martin of Eskdale blamed for an auto accident that allegedly injured Martin.

Giatras wrote that a private investigator could not find Smith.

Giatras did not serve Smith personally before the extension ran out. After The Record reported that he did not serve her, he told The Record he served her attorney.

Martin claims that Smith, Codi Davis of Syracuse, Ohio, and an unknown John or Jane Doe caused the accident.

Westmoreland

POINT PLEASANT – The beginning of the end may be in sight for a civil suit and criminal charges a Mason County doctor has against a Point Pleasant attorney with the doctor considering a new tactic to get the civil case moving, and investigators shifting their focus on who forged a disputed settlement check.

On Aug. 16, Dr. Danny R. Westmoreland of Westmoreland Family Physicians in Mason said he was among those who attended a hearing in U.S. Bankruptcy Court in Charleston (Case No. 05-31246).

The hearing, according to court records, was to consider the withdrawal of a motion made by Raymond G. Musgrave, of the Point Pleasant law firm of Musgrave and Musgrave, for he and Westmoreland to mutually dismiss civil suits the two have against each other.

In February 2005, Westmoreland filed suit against Musgrave alleging Musgrave has improperly withheld a settlement check from him (Mason County Circuit Court, Case No. 05-C-48). According to court records, Westmoreland is seeking $15,000 Musgrave was holding for him in escrow from a suit they settled on March 12, 2004 with Gallipolis, Ohio contractor Gary Barry (Mason County Circuit Court, Case No.01-C-329).

After Westmoreland filed his suit, Musgrave filed a counterclaim against Westmoreland. In his counterclaim, Musgrave alleges Westmoreland’s failure to provide testimony as an expert witness in a 1995 civil suit in federal district court resulted in an adverse ruling against his client, Basil R. DeWeese II (U.S. District Court for southern West Virginia, Case No. 95-C-00289).

Because Musgrave, along with his wife, Twila, filed for bankruptcy, all efforts by creditors to collect money from them are halted. That includes pending civil suits like Westmoreland’s.

However, according to U.S. Bankruptcy Trustee Helen Morris, Musgrave’s bankruptcy petition doesn’t stop him from pursing his counterclaim against Westmoreland. Such logic, Westmoreland said, is “insane.”

“What kind of judicial system is it that rewards the criminal?” Westmoreland said.

Westmoreland, who rejected Musgrave’s offer to mutually withdraw the civil suits, says he’s conferring with legal counsel to consider ways to get his civil suit against Musgrave moving in spite of the pending bankruptcy. Though he declined to offer specifics, Westmoreland did say he’s since obtained the transcript from the DeWeese suit that disputes Musgrave’s allegation that Westmoreland failed to testify as an expert witness.

Since the hearing, Westmoreland said the investigation into allegations Musgrave forged his signature on the settlement check, and a related release, has taken a new turn. According to Westmoreland, he received a call from the Point Pleasant detachment of the West Virginia State Police on Aug. 21 for him to come and make a statement as they were now considering his ex-wife, Kim, as a suspect in the forgery.

All throughout their divorce, which was finalized in May 2005, Westmoreland said he and Kim have remained on speaking terms.

Acknowledging allegations surfaced a long time ago that Kim was a suspect, Westmoreland says he believed her when she denied having anything to do with the suspected forgery.

However, Westmoreland says with evidence he’s since been provided, he no longer believes her.

“I was trying to help her,” Westmoreland said,” until I caught her lying, then everything went to hell.”

When contacted, Wood County Prosecutor Ginny Conley, who was appointed special prosecutor after Mason County Prosecutor Damon Morgan recused himself from the case, declined to comment on any specifics of the investigation. However, Conley did say that both Musgrave and his secretary Myra Shull are “completely cooperating in the investigation,” and it should come to finality for the next scheduled meeting of the grand jury.

“The plan is to be completed by the next grand jury setting in September to determine whether we go forward with charges or close the case,” Conley said.

The Mason County grand jury is scheduled to meet Tuesday, Sept. 5.

POINT PLEASANT – At least for now, no charges will be brought against anyone suspected in the forgery of a settlement check owed to a Mason County physician.

Wood County Prosecuting Attorney Ginny Conley was in Point Pleasant on Tuesday, Sept. 5 to present a case to the Mason County grand jury in a criminal complaint of forgery filed by Mason physician Danny R. Westmoreland. However, prior to Conley presenting her case, Westmoreland withdrew his complaint.

The reason for the last-minute withdraw, Westmoreland said, was mostly due to the investigation focusing on the wrong person. Too much emphasis was placed on his ex-wife Kim Westmoreland, and not enough on the person whom he initially leveled the accusations – Point Pleasant attorney Raymond G. Musgrave – Westmoreland said.

“I could not stand the idea of seeing Kim in an orange jumpsuit and handcuffs,” Westmoreland said.

In fact, Danny said his absence from the courthouse Tuesday was partially due out of respect for Kim. According to Danny, when he asked Kim if she would like him to be with her to lend morale support, she respectfully declined.

Though she declined to comment specifically the focus of her investigation as special prosecutor, Conley acknowledged that Kim Westmoreland was “among several witnesses subpoenaed to testify.” Though Musgrave was not seen near the courtroom where the grand jury was meeting, his secretary, Myra Shull, was, who Conley also acknowledged was subpoenaed to testify.

Kim Westmoreland, who was present with attorney R. Ford Francis, of the Charleston law office of Schumacher Francis & Nelson, declined to comment.

Miscommunication

A miscommunication over his participation in the grand jury proceedings is another reason why Westmoreland said he was not present Tuesday. Expressing dissatisfaction in the way she was handling the investigation, Westmoreland in May filed a motion with Mason County Circuit Judge David W. Nibert for Conley be removed as special prosecutor.

According to Westmoreland he asked a new special prosecutor be appointed or he be allowed to present a case to the grand jury against Musgrave and Shull himself. According to court records, Nibert never acted on that motion.

However, Westmoreland said he received a call from Nibert’s clerk about 2:45 p.m. Tuesday afternoon saying he would be allowed to present his case to the grand jury at 3 p.m. Citing there was no way he could make the 20-mile trip from Mason to Point Pleasant in 15 minutes coupled with the possibility of Kim being indicted is what Westmoreland said led him to fax a letter to West Virginia State Police Trooper First Class B.L. Keefer, the lead investigator in the case, for the investigation to cease.

Upon receiving Westmoreland’s letter, Keefer and Conley met with Nibert behind closed doors for an impromptu status hearing on the case. After about 20 minutes, Conley emerged, saying her role as special prosecutor was complete.

“The judge has relieved me of my role as special prosecutor,” Conley said. “The matter has been closed upon my request.”

Case may be refiled in 2007

Though Conley’s role may be complete, Westmoreland said the case is far from over. When the grand jury convenes for its January 2007 term, Westmoreland says he intends to present a case against Musgrave and Shull.

“I don’t want this to end,” Westmoreland said. “I feel the justice system is being protective of one of its own.”

However, Conley said Westmoreland may not have much of a case. His best chance to receive justice came and went Tuesday.

“We looked into all the issues he raised and his decision to dismiss is consistent with what our investigation revealed,” Conley said.
Also, Conley the move by Westmoreland to drop the complaint against Musgrave for this grand jury term to possibly reintroduce them during the next term is something she anticipated. Should Westmoreland refile his complaint, Conley said she’ll be returning to Mason County.

“I have asked the judge if the case is ever brought back I be assigned special prosecutor,” Conley said. “We completed a very through investigation in this case and I think it would be a through waste of resources to bring this case back. You can’t play games with criminal justice system.”

NEW HAVEN – Though one chapter in the saga of a Mason County alloy plant may be closed, the legal legacy involving its previous owner, in many instances, remains literally an open book.

About 150 people attended the dedication of Felman Production’s alloy plant in New Haven on Set. 12. Among those present were Gov. Joe Manchin III and Congresswoman Shelly Moore Capito.

The ceremony was not for a new plant, but for a 55-year-old facility under new management. Earlier this year, Felman, a Delware-based corporation and subsidiary of Privat Intertrading Group (a Ukrainian-based conglomerate), was purchased for $20 million from its previous owners, Highlanders Alloys.

The acquisition came from U.S. Bankruptcy Court where Highlanders filed for Chapter 11 in May 2005 (Case No. 30516) in the wake of issuing checks to its 150 employees, which were returned for non-sufficient funds.

The incident was the latest in a series of woes that has plagued the plant since Highlanders became owner five years ago.

Trouble from the get-go

Just as it was bought out in bankruptcy, Highlanders purchased the plant in 2001 from American Alloys for $2 million out of bankruptcy court (Case No. 00-30028). Boris Bannai, an Israeli industrialist, received funds from Israeli venture capitalist Eli Reifman to organize Highlanders Alloys LLC as a West Virginia-based corporation.

In addition to Highlanders, Bannai is co-owner of Nokotomi Ltd., a Netherlands-based holding company with mining operations in Namibia and South Africa, and a manganese plant in Poland.

Shortly after the plant was dedicated under Highlanders’ ownership in April 2002, a dedication attended by then-Gov. Bob Wise, the legal troubles began. By one count, 32 separate legal actions have been brought against Highlanders in three different jurisdictions since then.

Among the suits included two filed by the state departments of Labor and Environmental Protection for violation of wage and hour and air quality regulations, respectively (James R. Lewis, Commissioner of the West Virginia Department of Labor on behalf of Highlanders’ employees v. Highlanders Alloys, LLC and State of West Virginia ex. rel. Stephanie Timmermyer v. Highlanders Alloys, LLC, Kanawha County
Circuit Court, Case Nos. 02-C-1546 and 02-C-3152).

DoL’s suit was filed on behalf of the plant’s workers for Highlanders’ failure to pay them in excess of $250,000 in wages and benefits. The DEP suit sought enforcement of an Oct. 2002 cease-and desist order.

Both suits were settled with Highlanders satisfying DoL’s suit in September 2002 and DEP’s in January 2003.

Manchin duly noted the commitment by Felman of $12 million into the plant, which includes having more than sufficient funds to meet payroll and comply with environmental regulations.

“They’ve spent $5 million cleaning up the sins of past,” Manchin said, referring to money Felman has already invested into the plant.

Warrants pending for bad checks

Not meeting payroll was a recurrent problem under Highlanders. The problem was so bad that in addition to the DoL suit, the plant’s workers through its union, United Steelworkers Local 5171, filed a mechanic’s lien for $865,973.42 on Nov. 8, 2002, against Highlanders with two employees personally filing worthless checks charges against Bannai.

Raymond Bonecutter and Robert Rimmey submitted their checks to Mason County Magistrate Court to recover non-sufficient checks issued to them in the amount of $133.68 and $452.06, respectively (Case Nos. 02-W-617 and 02-W-668). Court records show Bannai paid the checks before misdemeanor charges were brought against him.

However, Bannai was charged with misdemeanor worthless check charges in three other cases.

In two cases, filed by Tri-State Roofing and Sheet Metal and Donohues Enterprises, Bannai pled no contest to the charges against him and paid the amount of the checks. In total, Bannai paid $32,911.95 for two bad checks written to Tri-State and $284 to Donohues. Plus, he paid a $100 fine (Case Nos. 02-M-893 & 894 and 02-M-1256).

Bannai’s failure to appear before the magistrate in another case regarding a debt of $23,606.44 to Murray Sheet Metal, resulted in a warrant being issued for his arrest (Case No. 03-M-389).

It, along with a bench warrant issued by Mason County Circuit Judge David W. Nibert for non-sufficient payroll checks Bannai wrote to all plant employees in May 2005, are still pending.

Eight cases remain open

The remaining legal actions against Highlanders are civil suits in Mason County Circuit Court filed by contractors for services rendered, but unpaid. According to court records, of the 32 cases filed, eight remain open.

Though not immediately clear, one reason for the number of open cases
is Highlanders failure to hire legal counsel. Though it is represented by Mark A. Ferguson of the Charleston law firm of Sprouse and Ferguson in its bankruptcy case, Highlanders’ attorney in the civil cases, Susan Cannon-Ryan, of the Charleston law firm of Shaffer and Shaffer, withdrew as counsel-of-record on March 7, 2003. She cited, among other things, her failure to communicate with Bannai, and his failure to pay for representation.

From most accounts, Bannai, 48, has spent most of his time in his adopted country since early 2003. A native of the former Soviet Union, Bannai immigrated to Israel in 1973.

Since Felman has taken ownership of the plant and has committed resources to its refurbishment, Charles Willet, 61, a ladle operator from Point Pleasant with 42 years in at the plant says if he ever sees Bannai again, it will a moment too soon.

“I hope I never do,” Willet said.

This former elementary school on Main Street in Point Pleasant now houses the offices of the Mason County Board of Education. A civil suit filed earlier this year alleges it was also the site of where Mitzi Spangler of Ashton injured herself while waiting to see county school Superintendent Larry A. Parsons.

William and Jane Bird allege that runoff last year from construction to the new addition to New Haven Elementary -� seen in the background -� flooded their back yard to the point where water was up to the level of their porch. Refusal by the Mason County Board of Education, and the company it contracted to perform construction, Mid-Atlantic Construction, to accept responsibility for the flooding has prompted the Bird’s to file suit.

POINT PLEASANT – The Mason County Board of Education is named as a defendant in two recent civil suits, one of which involves an alleged personal injury claim which occurred at the Board’s office.

Charles and Mitzi Spangler of Ashton and William and Jane Bird each have filed unrelated lawsuits against the Board earlier this year.

The Spanglers allege the Board is responsible for injuries Mitzi received when she fell in dimly lit room with an uneven floor at the Board’s office in Point Pleasant, while the Birds allege the Board shares responsibility for water damage sustained to their home as a result of run-off from construction to nearby New Haven Elementary.

Both cases are before Mason County Circuit Judge David W. Nibert.

Visiting the superintendent

The Spanglers filed suit against the Board on July 24. In their suit, the Spanglers allege Mitzi fell in a darkened room at the Board’s office located at the old Central Elementary School.

According to court records, Mitzi was there on Dec. 14, 2004, to meet county school Superintendent Larry E. Parsons at the request of the Board. The exact purpose of the meeting was not immediately clear.

Nevertheless, Spangler, through her attorney Matthew L. Clark of the Point Pleasant law firm of Kayser, Layne and Clark, alleges the injuries she sustained from the fall were a direct result of “an employee of the school board negligently direct[ing] the plaintiff into the darkened room that had been negligently maintained by the defendant, Mason County Board of Education, in that adequate lighting was not provided.”

“Additionally,” Clark said, “the floor at the darkened room was uneven, a condition not readily apparent to Mitzi Spangler.”

Water damage

About six months earlier, the Birds filed their suit against the Board. In the Bird’s case, the Board is listed as a co-defendant with Mid-Atlantic Construction, who according to court records, the Board hired to build a new addition onto New Haven Elementary.

In their suit, the Birds, through their attorneys John H. Bicknell and Meins E. Ketchum of the Huntington law firm of Greene, Ketchum, Bailey and Tweel, allege their property was flooded on July 18, 2005, after a heavy rain. The flooding, the Birds allege, was a direct result of excavation done to facilitate construction of the school’s addition.

The addition was done to make room for the additional students from Mason Elementary which was consolidated into New Haven. According to information provided by the state School Building Authority, over $5.2 million has been awarded to Mason County since 2003 to aid in the consolidation.

The grants include a supplemental one for nearly $550,000 in April 2005 for the increase in the cost of construction materials, and a second supplemental for $500,00 on July 1 for replacement of the heating and cooling system.

According to the Birds, the run-off was so bad that it knocked the mortar out of the concrete in their basement, and water was standing their backyard up to the level of their porch. In all, the Birds estimate they sustained $55,000 in damages to their home as result of the flooding.

Ironically, the Bird’s say living near the Ohio River that in 34 years “we’ve never had any water problems.”

Acceptance, then denial

Shortly after the flooding, William said he contacted the Board who sent representatives out to take a look at it. According to Bird, they expressed no reason why the Board couldn’t compensate them for the damages.

However, Bird said he received a letter from the Board saying the MAC was totally responsible for the damages. Later, Bird said, he received a letter from MAC denying responsibility.

“It was an act of God and they were not going to do anything about it,” Bird said. “God may have made it rain, but God didn’t do the digging, but God will see that I’m compensated,” Bird replied.

After attempts to mediate the dispute proved futile, the Birds say they filed their suit. Prior to the filing of the suit, the Birds say a make-shift earthen dam was constructed near their property to prevent any further run-off.

It was not immediately clear who ordered the construction of the dam. Also, William said he was told the Board considered the idea of constructing a drainage ditch, but the idea was shelved as not being feasible.

Since the Birds filed their suit, the Board through its legal counsel Brian D. Morrison, of the Charleston law office of Schumacher and Nelson, asserted on Feb. 13 the “damages, if any, were the direct and approximate result of an act of God which could have reasonably been anticipated.” In addition to reply to the Bird’s allegations the Board filed a cross claim against MAC asking it to hold the Board harmless from liability and reimburse it for any costs associated with a potential settlement.

In its reply March 9, MAC trough its then-attorneys Karen E. Jenkins and John R. Fowler of Charleston denied any negligence, and filed a cross claim against Raynes Excavating of Eleanor.

On April 13, Jenkins and Fowler filed a motion to substitute Randell L. Trautwein, of the Huntington law firm of Lamp, O’Dell, Bartram, Levy and Trautwein as legal counsel. The reason for the substitution was not immediately clear.

However, according to court records the cross claim MAC filed against Raynes was dismissed as all matters between them had been resolved.

Mason Circuit Court case numbers: 06-C-02 (Bird) and 06-C-112 (Spangler)

POINT PLEASANT – After first ordering the parties to discuss a settlement, the judge hearing a malpractice suit between two Mason County physicians has ordered the case dismissed.

Kanawha County Circuit Judge Tod J. Kaufman granted a motion by Robert Aliff, legal counsel for Point Pleasant urologist Fhrikant K. Vaidya, to dismiss a malpractice suit brought against him by Mason osteopathic physician Danny R. Westmoreland. Aliff, of the Charleston law office of Jackson Kelly, made the motion shortly after the suit was brought in 2005, and again asked for a dismissal during a status conference held Wednesday Oct. 25.

Based on clear language in the Medical Professional Liability Act of 2003 requiring plaintiffs to file a certificate of merit and provide an expert witness to testify on the deviation of the standard of care, Aliff said Westmoreland’s “compliant is insufficient and should be dismissed.”

In an order dated Thursday Oct. 26, Kaufman –- who was appointed by the state Supreme Court after both Mason County judges David W. Nibert and Thomas C. Evans recused themselves from the case -– agreed that the law’s language is clear.

“Therefore the Court has determined, after extensive review of the record and the Plaintiff’s claims, that this case is controlled by the “MPLA” and must meet the requirements in filing this malpractice action, including filing a certificate of merit and providing an expert witness to testify to the deviation of the standard of care,” Kaufman said in his order. ” This is particularly true because of the specialized nature of the medical practice of urology.”

Sides agree to attempt settlement

Acting as his own attorney, Westmoreland brought suit against Vaidya in 2005 alleging the removal of a stent from his ureter left permanent damage. Attempts were made to comply with the law, Westmoreland said, but the $40,000 fee some of the urologists said they would charge to testify was unreasonable.

Nevertheless, Westmoreland said that Vaidya’s continuance with the procedure despite his demands to stop fits the legal definition of rape.

“I just think that ‘no’ means ‘no’,” Westmoreland said during the hearing.

Kaufman seemed to give credence to Westmoreland’s claim that the case could proceed without a certificate of merit. When he asked Aliff if there were any cases where one would not be needed, Aliff said “I’m sure there are.”

“It’s basically one word against the other,” Kaufman said.
To bolster his motion that the case should be dismissed, Aliff produced a report from the state Board of Medicine showing an investigation it undertook into a complaint Westmoreland filed against Vaidya found no probable cause. When Westmoreland challenged the validity of the Board’s investigation, Kaufman scoffed at him.

“Ronald Walton [the Board's former executive director] did so much to run doctors into the ground that the New York Times wrote about them [the Board],” Kaufman said.

Regardless, Kaufman asked Aliff to call Vaidya and ask him if he was willing to settle the case. After leaving the courtroom for a moment, Aliff returned to say that Vaidya would agree to discuss a settlement.

Westmoreland said he, too, would be willing to discuss a settlement.

Prior to adjournment, Kaufman strongly suggested that both sides agree to some form of settlement. If no settlement could be reached, Kaufman said he would make a ruling on Aliff’s motion to dismiss.

“I owe you [Westmoreland] and this doctor an obligation to decide on this case,” Kaufman said.

After receiving Kaufman’s order on Nov. 2, Westmoreland he was “totally bewildered at what this judge has done.”

Some type of response to the dismissal order would be forthcoming, Westmoreland said.

POINT PLEASANT – A Mason County hospital finds itself involved in two civil actions, one filed against it and a local physician for malpractice and another filed by it in opposition to a competing home health agency.

Pleasant Valley Hospital and Dr. Clyde J. Rorrer are named as co-defendants in a lawsuit brought by Phyllis Mitchell. In her suit filed May 5, Mitchell, 64, of Leon, alleges both committed malpractice when Rorrer failed to properly treat her for a respiratory problems.

According to court records, Mitchell went to see Rorrer on March 21, 2003 after choking on a peanut that contributed to difficulties breathing. According to court records, Rorrer diagnosed Mitchell with bronchitis, released her and “did not order any additional medical care.”

Over the next year, court records show, Mitchell “continued to suffer from respiratory problems that she attributed to bronchitis, per Dr. Rorrer’s diagnosis.” On May 12, 2004, Mitchell sought the advice of Dr. Loay Al-Asadi, who discovered Mitchell aspired on the peanut.

Likewise, court records show Al-Asadi’s diagnosis found fragments of the peanuts contributed to an acute case of pneumonia. This resulted in Mitchell having to undergo a partial lobectomy, or removal of the lung.

Believing Rorrer and PVH deviated from the “applicable standard of care” which contributed to her suffering “serious harm that could have been prevented with a timely diagnosis and referral to an appropriate specialist,” Mitchell attempted to reach an out-of-court settlement with them.

When mediation efforts failed, court records show, Mitchell brought her malpractice suit.

Mitchell’s attorney, James Akers II of the Akers Law Office in Charleston, alleges because of PVH’s and Rorrer’s negligence, Mitchell “suffered serious and permanent injuries and scarring to her body, physical weakness, unnecessary major surgery, loss and use of function, permanent disfigurement, pain, emotional distress and an impairment of the capacity to enjoy life both past and present.”

No monetary damages are specified in Mitchell’s suit, records show.

In their reply, both PVH and Rorrer deny any wrongdoing. According to court records, both state “Defendant’s care and treatment of the plaintiff met or exceeded the applicable standard of care” and Mitchell’s “injuries, to the extent existed were proximately caused by persons or entities other than this defendant.”

The Huntington law office of Farrell, Farrell and Farrell is representing both PVH and Rorrer.

Dueling statistics

In addition to defending itself in a lawsuit, PVH has brought one against a state agency that oversees health care licensing. On February 9, PVH appealed a decision rendered by the West Virginia Health Care Authority’s Office of Judges granting a certificate of need to Ohio Valley Home Health to conduct business in Mason County.

According to court records, OVHH, which is a subsidiary of Family Home Health Plus of Gallipolis, Ohio filed for a CON on June 28, 2004 to supply residents of Mason County with home health services. The Authority granted the CON on July 21, 2005.

PVH appealed the decision to the Authority’s Office of Judges.

Court records show on January 9 the Office of Judges affirmed the Authority’s decision.

In his brief appealing the Office of Judges’ decision, PVH’s attorney Thomas G. Casto of the Charleston law offices of Lewis, Casey and Rollins, said based in the Need Methodology Formula defined in the State Health Plan, “clearly indicates that there is no need for the Subject Project in Mason County.”

A CON for home health services, Casto said, must meet the “229 threshold” in which “at least 229 home health recipients must occur in the county before consideration will be given to issuing another certificate of need for the county.”

In his brief, Casto pointed to a decision the Office of Judges rendered in the 1996 case of In re: Critical Care Nursing Home. According to court records, the Office of Judges denied a CON to a Wayne County home health agency where the number of unmet need was 224.

Casto cited OVHH’S CON application showing an unmet need of 198.
OVHH’s attorney, Robert Thomas of the Charleston law office of Jackson Kelly, found none of PVH’s arguments persuasive. In fact, in the brief he filed Aug. 21 in reply to PVH’s motion, Thomas turned their arguments against them.

“Pleasant Valley Hospital’s argument reads the 229 figure wholly out of context,” Thomas said. “Based on the plain language of the above-styled provisions of the State Health Plan standards for Home Health Services, the 224 figure becomes relevant only if there are agencies in the proposed county which received CON approval within the previous 12 months.”

Because that’s what happened in the Wayne County case, Thomas argues, “[t]his result was not inconsistent with the Authority’s other cases.”

Furthermore, Thomas said the “credibility of PVH’s argument under the Need Methodology is further undermined by PVH’s own prior CON application.” Court records show Thomas referred to the 2001 case In Re: Pleasant Valley Hospital d/b/a Pleasant Valley Home Health and Pleasant Valley Private Duty in which the Authority granted a CON to PVH to expand its home health services into Wayne, Jackson, Putnam and Lincoln counties based on an unmet need of 75, 127, 386 and 97 patients, respectively.

Both cases are before Judge David W. Nibert.

Mason Circuit Court case numbers: 06-AA-20 (Health Care Authority) and 06-C-72 (Mitchell)

HENDERSON – Dr. Danny R. Westmoreland is not the only Mason County resident who alleges he was permanently injured by a Point Pleasant urologist.

Frank Eugene Meadows of Henderson, says he also was victimized by Dr. Shrikant Vaidya.

However, a lack of financial resources, and the willingness of other physicians to serve as an expert witness, forced the lawsuit he filed against Vaidya in 2000 into obscurity.

“I’d give anything if they’d fix me,” Meadows said. “I’ll wake up some nights with an erection that it hurts so much I’ll cry.”

A broken promise

Meadows, a 56-year-old retired truck driver, was referring to his dealing with Peyronie’s Disease, a condition in which plaque in the penis causes pain during an erection. The problem, Meadows said, first surfaced almost 10 years ago, and when he began seeking treatment for it.

After making trips to urologists in three states, Meadows said he settled on Vaidya based on the referral of another physician. When Vaidya promised he could fix his problem, Meadows felt comfortable undergoing surgery.

“‘If you have a problem, come by and I can fix it’,” Meadows said Vaidya told him.

After his operation, which according to court records took place sometime around July 20, 1998, Meadows said he still was experiencing pain. About 10 days after his operation, Meadows said he informed Vaidya of his concern in which Vaidya scheduled him for an appointment a month later.

During their visit, Meadows says Vaidya informed him his pain was a result of plaque not previously discovered. Reminding Vaidya of his promise to “fix” him, Meadows asked for Vaidya to again perform corrective surgery.

Unfortunately, Meadows said Vaidya told him surgery was no longer an option.

“‘If you don’t want the pump,’” Meadows said Vaidya told him referring to a device to aid in an erection, “there’s nothing I can do for you.” Whereupon, Meadows said, Vaidya asked him to leave his office.

Physicians refuse to speak out

After seeking a second opinion from a urologist in Norfolk, Va., Meadows was told “what’s done is done.” In his lawsuit, Meadows maintains that after consulting with the urologist he “now understands that the surgical procedure performed by the defendant on the 20th of July, 1998, should not have been performed, resulted in serious and permanent injury to the penis of said plaintiff and prevents appropriate and proper medical treatment from being performed relative to the disease which would cause an improvement in said plaintiff’s condition.”

With the assistance of David W. Nibert, Meadows filed his lawsuit against Vaidya on July 19, 2000.

In the suit, in which his wife Virginia is listed as a co-plaintiff, Meadows said as a “direct and proximate result” of Vaidya’s “negligence and carelessness” he suffered “pain in the past, present and future; humiliation, embarrassment and disfigurement in the past, present and future; and loss of enjoyment of life in the past, present and future.”

Likewise, the suit alleges Virginia “has been permanently deprived of the consortium, society and comfort of her husband and has suffered and will continue to suffer in anguish.”

The Meadows’ did not put a monetary value on their loss. Instead, they asked for “a sum in excess of the minimum jurisdiction of this Court as will adequately compensate the plaintiffs for their injuries, together with prejudgment interest, costs and attorney fees for this action.”

Because Nibert was elected as circuit judge later that year, he had to remove himself from the case. However, Meadows said Nibert referred him to John Carrico in Charleston to further pursue the case.

Upon consulting with Carrico, Meadows was told if he could find one doctor who would testify that Vaidya messed up, he’d have a solid case.

However, Meadows said that proved to be a fruitless endeavor as nearly every physician with whom he spoke refused to help for fear of themselves being sued. One urologist in Morgantown expressed a desire to help, but later declined only because Vaidya’s notes were so vague he could not reach a conclusion.

To the brink of suicide and back

About two years ago, Meadows said, he got so frustrated with the matter that he threw away all the supporting documentation he had in the case.

Ironically, because no dismissal order has been entered in the case, it still technically remains open.

Nevertheless, Meadows said the frustration and pain has taken its toll on him. Despite having 14 major surgeries in his life, Meadows says the one Vaidya performed on him is the most painful.

In the eight years since the surgery, Meadows says he takes medication to calm his nerves, and has been through many bouts of depression. The bouts have been so severe that Meadows was admits he’s contemplated suicide.

“I haven’t had sex with my wife for two years,” Meadows said. “I don’t know why she’s still here.”

The unconditional love given to him by not only Virginia, but also his children and nine grandchildren is what’s kept him going, Meadows said.

“I’ve got great kids,” Meadows said, “They always tell me ‘Dad, I love you’.”

Married to Frank for 33 years, Virginia says there’s more to their relationship than sex.

“Sex would be nice every once in awhile,” she said. “I know it hurts him. It hurts me, but there’s nothing I can do about it.”

Today, Meadows does his best to be a full-time grandfather. Though he has done his best to put any bitterness toward Vaidya aside, Meadows says he hopes Vaidya will one day soon stop practicing medicine.

“The madness in me is gone,” Meadows said. “They should take his knife away from him.”

Mason Circuit Court case number 00-C-132

Vaidya

Westmoreland

POINT PLEASANT – A Mason County physician’s motion to reopen his recently dismissed malpractice suit hinges on whether the judge agrees a certificate of merit is an absolute necessity for the case to proceed.

In November, Dr. Danny R. Westmoreland, with the assistance of Pomeroy, Ohio, attorney Robert Bright, filed a motion asking Kanawha County Circuit Judge Tod J. Kaufman to reconsider his Oct. 26 order dismissing Westmoreland’s suit against Point Pleasant urologist Shrikant Vaidya.

Kaufman was appointed to hear the case by the state Supreme Court when both Mason County Circuit judges David W. Nibert and Thomas J. Evans recused themselves from the case.

Though both sides agreed to discuss a settlement during an Oct. 25 status conference, Kaufman a day later granted a motion by Vaidya’s attorney Rob Aliff of the Charleston office of Jackson Kelly, to dismiss the suit.

In his order, Kaufman said under the Medical Professional Liability Act of 2003, Westmoreland “must meet the requirements in filing this malpractice action, including filing a certificate of merit and providing an expert witness to testify to the deviation of the standard of care.”

According to court records, Westmoreland brought suit against Vaidya in 2005 alleging that Vaidya’s removal of a stent from Westmoreland’s ureter in 2003 left him permanently damaged. He alleges that during the procedure he told Vaidya to stop due to the pain of the scope being inserted into his penis, but Vaidya refused to comply.

This, Westmoreland argues, fits the legal definition of rape.

In his motion, Bright argues that a certificate of merit is not an absolute necessity to bringing a malpractice suit based on a “plain reading” of the statute. If a plaintiff simply believes a certificate of merit is not required because the suit is “based on a well-established legal theory of liability” then the testimony of an expert witness is not required.

“First, the Plaintiff or his Counsel must believe that no screening certificate of merit is necessary,” Bright wrote. “Plaintiff Westmoreland has submitted a sworn affidavit stating that he believed that a certificate of merit was not required. Please note that the statute does not require that the Plaintiff’s believe be reasonable or in good faith -– it merely states that he must believe it.”

Also, Bright said Westmoreland’s case that he believed he could proceed without a certificate of merit is supported by Vaidya’s own actions. In his brief, Bright says Vaidya, as required by statute, did not respond in writing to Westmoreland’s notice within 30 days to express any objections.

“By chosing not to comply with the requirements of the MPLA, Defendant Vaidya waived his objection to the certificate of merit requirement,” Bright wrote. “Further, the Defendant’s failure to timely file an answer should have resulted in a default judgment against the Defendant.”

Furthermore, Westmoreland went the extra mile by seeking a urologist who possibly would agree to sign a certificate of merit. When he found the $40,000 fee they wanted objectionable, Bright said Westmoreland fell back to his common-law argument.

“The consequences of such a fee would clearly restrict or deny citizens’ access to the courts,” Bright wrote.

Based mostly on Vaidya’s failure to reply to Westmoreland’s initial complaint, Bright asked Kaufman to reinstate Westmoreland’s complaint so his claims could “be decided on their merits -– without requiring the Plaintiff to file a Certificate of Merit.”

As an alternate consideration, Bright asked that Kaufman reinstate the suit, and give Westmoreland 30 days so he “may have a second opportunity to attempt to obtain a certificate of merit.”

If Westmoreland could not obtain a certificate within the 30 days, Bright said, “the Court then could properly dismiss the Plaintiff’s claims.”

No date has been set as to when Kaufman may rule on the motion, or hold a hearing for additional arguments.

Mason County Circuit Court, Case No. 05-C-97

Vaidya

Westmoreland

CHARLESTON – An appeal of a dismissed Mason County malpractice case may provide the state Supreme Court an opportunity to decide on not only the constitutionality of requiring pre-suit notification, but also a state law designed to curb malpractice suits.

On Feb. 15, Dr. Danny R. Westmoreland filed an appeal with the Court in his malpractice case against Point Pleasant urologist Shrikant K. Vaidya (Mason County Circuit Court, Case No. 05-C-97).

Westmoreland’s appeal, prepared by his attorney Robert W. Bright of the Story Law Office in Pomeroy, Ohio, asks the Court to reverse and remand Kanawha County Circuit Judge Todd J. Kaufman’s Oct. 26 order dismissing the case.

Kaufman was appointed by the Court to hear the case when both Mason County Circuit judges David W. Nibert and Thomas J. Evans recused themselves.

In the 67-page brief he filed with the Court, Bright makes Westmoreland’s case for reversal based on nine issues. Eight deal with perceived errors on Kaufman’s behalf with the ninth asking the Court to find the Medical Professional Liability Act unconstitutional.

“The certificate of merit requirement found in WV Code 55-7B-6(B) of the Medical Professional Liability Act is unconstitutional because it restricts or denies citizens’ access to the courts by requiring plaintiffs to pay exorbitant amounts of money in order to obtain a certificate of merit,” Bright says in his brief.

$40,000 buys expert testimony

In an attempt to steam the outflow of physicians from West Virginia who claimed skyrocketing premiums for malpractice insurance where harming their ability to practice medicine, the Legislature in 2003 passed and then-Gov. Bob Wise signed the MPLA into law. Among MPLA’s provisions are requiring a plaintiff provide the defendant a 30-day notice to bring suit.

Also, MPLA requires pre-suit notifications to contain a certificate of merit outlining a theory of liability. The certificate must be signed by a physician whose field of medicine includes that of the defendant.

The intended purpose of the pre-suit requirements was to thwart frivolous lawsuits, and encourage mediation in more substantive cases.

In his brief, Bright maintains that Westmoreland consulted with 12 urologists to sign a certificate of merit. Though 10 declined, two said they would for $40,000.

Prior to filing an appeal with the Court, Bright filed a motion with Kaufman to reconsider his dismissal order. According to court records, Kaufman denied that motion on Dec. 13.

In his reply to the motion to reconsider, court records show Vaidya’s attorney Rob J. Aliff, with the Charleston law firm of Jackson Kelly, said such a fee is “little money” and a “reasonable expectation” for “compensating a medical expert for his time.” If such a fee is the going rate for certificates of merit, Bright says in his brief, it would have the effect of violating most West Virginian’s right to trial.

“According to the U.S. Census Bureau … West Virginia had a per capita income of $16,477 in the 2000 census,” Bright says. “In light of that figure, does the Defendant honestly believe that $40,000 is a ‘little money?’

“After all,” Bright adds, “if Plaintiffs in West Virginia are required to expend more than 2 1/2 years of their pre-tax income in order to file a suit against Vaidya, it certainly guarantees that here will be very few malpractice suits against him. It is beyond doubt that very few Plaintiff’s attorneys would take medical malpractice cases on a contingent fee it the attorneys had to front $40,000 to even file a notice of the suit.”

Case law cited for reversal

Should the Court choose not to rule on the constitutionality of MPLA, Westmoreland maintains his case is still validated by other provisions of the state code. Among them are his allegations against Vaidya for battery.

In his original complaint filed June 10, 2005, Westmoreland alleges a cystoscopy Vaidya performed on him in 2003 for removal of a stent from his ureter, resulted in Westmoreland developing Peyronie’s Disease, a condition which results in curvature of the penis. Such distortion causes pain during an erection and sex difficult or impossible.

The procedure, Westmoreland alleges, was done without anesthesia, which Vaidya assured him he’d done before. Vaidya also assured Westmoreland the procedure would take less than a minute.

However, the procedure lasted 15-20 minutes, in which Westmoreland says he repeatedly told Vaidya to stop. He alleges during that time, Vaidya’s assistant restrained him.

Westmoreland’s withdraw of consent for the cystoscopy, Bright says in his brief, makes the case “a battery claim rather than a malpractice claim.” Citing applicable case law from not only West Virginia, Virginia, Georgia, Kentucky, Illinois and Wisconsin, Bright says MPLA doesn’t govern cases involving battery.

“Westmoreland filed this case as a malpractice claim — and rightly so, for as far as the procedure began, it was clear to Westmoreland that Vaidya was breaching the applicable standard of care,” Bright said. “However, when Westmoreland withdrew his consent to the medical procedure within mere seconds of the beginning of that procedure, the continuation of that medical procedure by Vaidya was a battery which exists outside the scope of medical malpractice.”

Two different views

Nevertheless, the Court seems poised to test MPLA’s constitutionality. At least two justices in separate cases have expressed discontent with pre-suit requirements.

In November, the Court was presented with a possible constitutional challenge to MPLA. In the case of Sarina L. Davis, admx. v. Mound View Health Care, Inc., the Court in a 4-1 decision reversed and remanded Marshall Circuit Judge John Madden’s dismissal of Davis’ case (Case No. 33104).

Mound View moved the case be dismissed when they were not served with a 30-day notice of suit. Ronald Kasserman, Davis’ attorney, opposed the motion based on the fact the failure rested on Davis’ prior attorney who shut down her law firm after taking Davis’ case.

Dissenting from the Court’s ruling was Chief Justice Robin Jean Davis. Because the issue was raised in the dismissal, Davis believed the Court should have decided on MPLA’s constitutionality.

“In this case, the plaintiff’s complaint was dismissed solely upon the grounds that she did not serve a notice of claim on the defendant, thirty days before filing the action, as required by the Medical Professional Liability Act,” Davis said. “On appeal to this Court, the plaintiff challenged the dismissal of her complaint on the grounds that the pre-suit requirements of the Act were unconstitutional.

“In resolving this case, the majority opinion decided not to address the constitutional issue raised by the plaintiff,” Davis added. “Instead, the majority affirmed the dismissal on the basis that the plaintiff could refile her complaint after complying with the Act.”

“As I stated in Hinchman, the pre-suit requirements of the Act encroach upon this Court’s constitutional authority to promulgate procedural rules for litigating in the courts of this State. Consequently, and for the reasons more fully set out in my concurring opinion in Hinchman v. Gillette, I respectfully dissent.”

On Valentine’s Day, the Court heard oral arguments in Adda Motto, Marie Carey, David Carey, Kristi Carey, and Sharon Runyon v. CSX Transportation Inc., and West Virginia Department of Environmental Protection, Office of Abandoned Mine Lands and Reclamation, a West Virginia government entity (Case No. 061342). Though it was not raised by the plaintiff’s attorney, Justice Joseph Albright hinted a constitutional challenge may be raised to the 30-day requirement in notifying state agencies of pending lawsuits.

“I don’t see any way to address this outside of the constitutionality of the statute,” Albright said.

The plaintiffs, though their attorney Bernard Layne III, filed suit in Logan County Circuit Court against CSX Transportation and the state Department of Environmental Protection in 2005. They allege CSX and DEP were partially responsible for a 2003 flood which destroyed their homes.

After the case was transferred to Kanawha County because of its involvement in the suit, DEP moved to have the case dismissed because it was not served with the 30-day notice. The case was assigned to Kaufman.

After granting a motion by Layne to stay the case so the pre-file notice could be served, Kaufman asked the Court to determine if the pre-suit notification was a jurisdictional or procedural question.

In October, the Court agreed to hear the case.

Despite siding with the majority in the Mound View case, Albright mimicked Davis’ sentiments about pre-suit filing requirements. Though the circumstances are different in the Motto case, Albright said the pre-suit filing requirement for state agencies is “a rather draconian statute” because it infringes on the Court’s ability to make rules for litigation.

The current home of the Mason County Emergency Ambulance Service Authority in Point Pleasant.

POINT PLEASANT – Despite pending lawsuits against them for alleged shoddy work and unpaid taxes for other projects they performed in the county, a Point Pleasant contractor was the low bidder for the county’s new ambulance service garage.

On March 19, the Point Pleasant Register reported that Mid-Atlantic Construction was the low bidder for the garage to house the Mason County Emergency Ambulance Service Authority. The garage is part of a larger on-going project on Lucas Lane, just outside of Point Pleasant, to modernize and upgrade the county’s 911 and emergency medical services’ capability.

According to the Register, the total cost of the renovation is $1.4 million. MAC is the contractor on the remaining parts of the project, Blake said.

However, Chuck Blake said he was caught off-guard by the “low” bid. According to the Register, MAC’s $335,000 winning bid was nearly $100,000 more than Blake anticipated.

The reason for the increased cost, Blake said, is mostly due to the high demand for materials needed to construct the proposed five-bay, 45-by-60 foot all-steel garage. Such materials are in short supply in the Gulf Coast, but desperately needed to assist in rebuilding after Hurricane Katrina, Blake said.

Because of this, Blake told the Register, the garage will not be finished by the time for the 911/EMS center’s grand opening on April 24. Until the garage can be constructed, Blake said all of the Authority’s four ambulances and one utility vehicle will be parked outside.

“We still have some logistical issues to work out about that,” Blake told the Register. “But everything is still on track for the main building.”

When asked about lawsuits pending against MAC in Mason County Circuit Court, Blake said he was not aware of them. The role of scrutinizing a company’s fitness to handle construction projects involving county resources falls to the county building authority.

“Since the building authority handles all that, I had no knowledge of it [the lawsuits],” Blake said.

Denying responsibility for flooding

In October, The Record reported that MAC was named as a co-defendant with the Mason County Board of Education in a suit brought by William and Jane Bird. In their suit filed January 2006, the Birds alleged that work done by MAC to nearby New Haven Elementary in preparation for its consolidation with Mason Elementary, resulted in their home being flooded.

According to court records, a heavy rain on July 18, 2005 resulted in water gushing onto their property. The flooding was so heavy that it knocked mortar out the concrete in their basement, and measured up to the level of their back porch, the Birds said.

The flooding, the Birds allege, was a direct result of MAC’s excavation to the rear of New Haven Elementary’s property causing the land to slope toward the back of their home. Thus far, the Birds estimated the value of damages done by the flooding at $55,000.

Initially, the Board appeared it would accept responsibility for flooding, and pay them for the damages they incurred. However, the Birds said they received letters from both the Board and MAC denying responsibility.

When attempts to mediate the dispute failed, the Birds brought their suit. Though maintaining the flooding was “an act of God,” the Board’s attorneys incorporated the Bird’s allegation in a cross claim against MAC.

According to court records, MAC filed a cross claim against Raynes Construction of Eleanor, a subcontractor it used on the project. However, MAC’s cross claim was later dismissed.

Owing $49,000 to city

A recent search of court records discovered a second, older suit against MAC. This one involved the city of Point Pleasant suing them for unpaid taxes.

According to court records, MAC owes the city $49,000 for its “perform[ance] of various and certain construction projects.”

Though it was unclear as to exactly what, the suit, filed by then-city recorder Marilyn McDaniel, alleges “As a result of aforesaid construction projects, the Defendant owes to the city of Point Pleasant, business and occupation taxes, which Defendant has failed and refused to pay.”

McDaniel filed the suit on June 30, 2003, a day before her term as recorder ended. McDaniel vacated her seat in an unsuccessful run for mayor in that year’s city election.

The timing of the suit was something noted by MAC’s attorney Raymond G. Musgrave. In a reply dated July 23, 2003, Musgrave said the suit should be dismissed “due to the vague, ambiguous and undefinable specific instances alleged by the Plaintiff.”

Records show no further action has been taken in the case, which is before Mason Circuit Judge Thomas J. Evans. Attempts to find out more details on the case were unsuccessful as James Casey, Point Pleasant’s city attorney, was out of town, and could not be reached for a comment.

Also out of town and unavailable for comment was county building authority chairman John Collins.

In 2000, the Mason County Emergency Ambulance Service Authority seized the property belonging to the New Haven Emergency Medical Service squad. Though NHEMS won a court battle in the seizure of its equipment, it eventually lost the war to the Authority.

POINT PLEASANT – The issue of ambulance service was at the heart of lawsuit in Mason County seven years ago which saw the intervention of the state Supreme Court in the case.

As the Mason County Emergency Ambulance Service Authority awaits construction of its new facility near Point Pleasant, a controversy erupted in 2000 over its seizure of property belonging to the New Haven Emergency Medical Service squad. Though NHEMS won a court battle in the seizure of its equipment, it eventually lost the war to the Authority.

According to court records, prior to 1999 five EMS squads provided ambulance service to Mason County. They were New Haven, Mason, Point Pleasant, Mt. Flower, near the Mason/Jackson county line and Valley in Apple Grove.

In 1988 and 1993, records show discussions were held to merge all squads into a single squad operating out of Point Pleasant. Though it is unclear the stance taken by the others, New Haven unanimously rejected the proposal.

However, in March 1997 all the squads received a letter from Dr. Sam McNeil, the county’s then-medical director, urging their attendance at a meeting to be held at the Point Pleasant Public Library. The purpose of this meeting, records show, was to inform the squads that failure to join the proposed county-wide squad would result in them no longer receiving 911 calls or funding from the county.

Up until that time, each squad received an annual $3,000 stipend from the county commission.

Despite the demand, NHEMS’ board voted not to join the countywide squad. In response to this, records show, the county placed a padlock on NHEMS’ building on 5th Street prohibiting access to their equipment including the two ambulances valued together at nearly $200,000.

NHEMS alleges an unconstitutional taking

About a year later on September 16, 2000, the Commission filed a petition with the circuit court asking it to prohibit NHEMS from liquidating the assets it owned and distributing those assets “as it sees fit.” In its petition, then-Commission President Rick Northup, and then-Prosecuting Attorney Diana L. Johnson asked the court “upon hearing of the issues herein set forth, the Court issue an order transferring the assets of said corporation to the County Commission of Mason County, a local government, to be used for a public purpose.”

In addition to NHEMS as a corporation, the Commission named George Gibbs, Clyde Weaver, Sharon Stover, Ron Robinson and Nellene Pethtel, individually and as NHEMS’ board of directors as defendants in its petition.

According to court records, then-Mason Circuit Judge Clarence L. Watt granted the Commission’s petition for use and possession of NHEMS’ vehicles on “a temporary basis.” As a condition of Watt’s September 27, 2000, order, the Commission was to provide liability insurance and proper maintenance of the ambulances while holding NHEMS harmless from any “damages, accidents or liabilities which may be incurred during their use …”

Court records show on October 5, 2000, NHEMS’ legal counsel Dwight Staples of the Huntington law firm of Henderson, Henderson and Staples filed a motion with the Supreme Court asking it to stay Watt’s order. In his motion, Staples said the Commission’s seizure of NHEMS property was not only a violation of state law since NHEMS is a state chartered corporation, and can only be dissolved by a vote of the board of directors, but also a violation of the board members’ Fifth Amendment rights prohibiting the government taking of private property without just compensation.

The high court agreed and, according to records, on October 26, 2000 entered a stay “pending resolution of the question certified by this Court …”

However, the newly formed Authority would eventually take possession of NHEMS’ ambulances. Because they were unable to go on runs during the legal battle, the various certifications for NHEMS squad members lapsed.

Authority realigned to deal with deficits

Though one controversy ended, another soon began. Many county residents, including former NHMES squad members, voiced concern over the deficits the Authority continued to run annually.

As a cost-saving measure, the Commission in December 2002 voted to realign the Authority under the Office of Emergency Services.

Records show that OES and 911center director Chuck Blake took over as Authority director on an interim basis in December 2002, and later full-time in June 2003.

Blake, records show, is paid a $10,000 stipend from the Authority’s budget, separate from the $37,257 he receives as OES/911 center director. Prior to Blake, Matthew G. Musgrave served as the Authority’s director.

Musgrave, who is the son of Point Pleasant attorney Raymond G. Musgrave, and nephew of former Point Pleasant Mayor and current state Lottery Director John C. Musgrave, took a job with the state Department of Health and Human Services in March 2003. According to information provided by the state Auditor’s Office, he works for DHHR as a program manager in their Charleston office, and is paid a salary of $40,980.

According to records provided by the Authority, his salary as director was $31,000.

Vaidya

POINT PLEASANT – A Point Pleasant urologist is again a defendant in a lawsuit. Only this time he is being sued for alleged negligence on the highway, and not in the operating room.

In addition to Dr. Danny R. Westmoreland and Frank Meadows, Dr. Shrikant K. Vaidya is defending himself in a civil suit in Mason County Circuit Court. In the suit filed March 9, Sandra K. and Thomas A. Fisher of Gallipolis Ferry allege they were injured in an automobile accident with Vaidya in Gallipolis, Ohio.

“That as a direct and proximate result of the Defendant’s negligent and reckless conduct,” the Fisher’s said in their compliant, “the Plaintiff, Sandra K. Fisher, was caused to suffer great, severe and permanent injuries, including but not limited to her neck and back.”

According to court records, the Fishers, both 44, were traveling in their 1998 Buick Park Avenue along Eastern Avenue in Gallipolis on March 12, 2005. Through their attorney Dallas Kayser of the Point Pleasant law firm of Kayser, Clark and Layne, the Fisher’s allege Vaidya, driving a 2004 Mercedes 5500 “negligently collided with the rear of [the Fisher's] vehicle.”

The Fisher’s suit alleges Sandra was not the only one injured. The suit incorporates the same injuries for Thomas as it does Sandra.
Also, the suit alleges that Vaidya is responsible for additional injuries to Thomas.

“As a direct and proximate result of injuries to his wife, Sandra K. Fisher, this Plaintiff also incurred loss of household services, security and consortium with his wife in the past, present and future,” the Fishers allege in their complaint.

Recusal of judge possible

Currently, the case is before Mason Circuit Judge David W. Nibert.

However, Nibert recused himself from Westmoreland’s suit against Vaidya citing his “social contacts” with Westmoreland, and Vaidya’s standing in the community.

After Judge Thomas C. Evans also recused himself, the state Supreme Court appointed Kanawha County Judge Tod J. Kaufman to hear the case. On October 26, Kaufman dismissed the suit.

Westmoreland is appealing Kaufman’s ruling.

Also, prior to his election to judge in 2000, Nibert was Meadows’ attorney in his suit against Vaidya. Despite seven years of inactivity, court records show the case remains open.

Signs like this one in support of councilman-at-large candidate Gary Cotton on the corner of Jackson Avenue and 26th Street are beginning to sprout up in Point Pleasant in preparation for the upcoming May 19 election.

POINT PLEASANT – Candidates for the upcoming Point Pleasant city election are either mum or wanting to take a wait-and-see approach to lawsuits involving the city.

Currently, the city is a party in four lawsuits, three in which it’s a defendant, and one in which it’s a plaintiff. In the latter, the case stems from the last city election in 2003.

A questionnaire was sent to all 23 candidates running for city office asking if they favored or opposed settling the lawsuits. In addition to the mayor and city clerk, the city council consists of eight wards and two at-large seats, each represented by one person.

Only two candidates, incumbent mayor Jim Wilson, a Democrat, and Gary Supple, a Republican candidate for one of the at-large seats submitted a reply to the questionnaire. In their reply, both men were cautious about any attempts to reach a settlement in the cases.

Two suits allege city negligent

Two of the suits in which the city is named as a defendant relate to personal injuries. Both were filed in 2005, and allege the city was negligent in a fall one woman sustained as a result of an open water meter hole, and damage to another woman’s car and person due to the reckless driving of a city employee.

In the first case, Ashely Jones of Henderson alleges that on Feb. 7, 2003 she was walking along the street in Henderson when “she stepped on the water meter cover located on the middle of the sidewalk and fell through the hole.” As a result of the fall, Jones alleges she sustained injuries to her feet, leg, hip and back.

Though her attorneys Thomas W. Pettit of Barboursville, Scott A. Damron of Huntington and Ronald R. Morgan of Point Pleasant, Jones maintains she incurred $20,000 of medical expenses as a result of the fall. Also, the fall caused her lost wages, and “extreme emotional and physical pain and suffering; and past and present loss of capacity to enjoy life.”

In addition to the city’s water system, Jones named the Mason County Public Service District and the town of Henderson as co-defendants. Records show MCPSD was dismissed from the suit on Dec. 21, 2005, and Henderson on May 18, 2006.

Also, records show that prior to its dismissal, the town via its attorney R. Carter Elkins with the Huntington law office of Campbell, Woods, Bagley, Emerson, McNeer and Herndon incorporated Jones’ complaint into a cross claim against Point Pleasant on Dec. 22, 2005.

About six months after Jones’ accident, Gena Griggs of Point Pleasant was involved in hers. She alleges a collision with a 1993 Ford F-150 driven by John W. Burton caused her “past and future physical pain and suffering, mental pain and suffering, loss of enjoyment of life, doctor, hospital and medical bills and future loss of earning capacity.”

According to court records, on Aug. 25, 2004 Burton was driving his truck in the northbound lane on Viand Street. After changing into the center lane, Burton abruptly changed back into the northbound lane “whereby striking Gena S. Griggs.”

In her suit, Griggs, though her attorney Donald J. Tennent Jr. of Wheeling, maintains Burton was acting in the course of his employment at the time of the accident. Because he was “negligently trained, supervised and/or instructed” the suit names both he and the city as defendants.

In its reply dated Oct. 26, 2005, both Burton and the city, though their attorney David F. Nelson with the Charleston law office of Schumacher, Francis and Nelson, admit Burton “was working within the scope of his employment at the time of the motor vehicle accident.” However, they denied Burton’s actions resulted in Griggs pain and suffering and “demand[ed] strict proof thereof.”

On Nov. 16, 2006, Burton was dismissed as a defendant.
Mason Circuit Judge David W. Nibert is presiding in both Griggs’ and Jones’ case.

Property owner sues to have mayor recused

The final suit to which the city is a defendant involves its enforcement of dilapidated or distressed properties. Specially, the suit alleges inherent conflicts in the way the city ordinances are enforced.

According to court records, Howard Yeager was cited for violating five ordinances by city inspector Jeremy Bryant. However, Yeager, through his attorney Jason Goad of the Charleston law office of Hunt and Serreno, alleges that Bryant failed to provide any explanation of the charges against Yeager.

Court records show Yeager proffered a settlement. Though admitting no wrongdoing, Yeager said he would donate the property in question to the city in exchange for the charges against him dropped.

After a series of negotiations with the city, the matter was to be resolved at a municipal court hearing on January 31. In this case, Wilson served as judge because Jeremy Vickers, the regular municipal judge, recused himself from hearing the case because of his involvement in the negotiations as assistant city attorney.

In West Virginia, state law allows for a mayor to hear municipal cases when the judge is absent or has a conflict.

However, Goad objected to Wilson hearing the case. Citing minutes from council meetings conducted from Oct. 10, 2005 to Aug. 7, 2006, Goad said Wilson actively participated in the discussion of Yeager’s property, and, like Vickers, had a conflict of interest.

“Clearly,” Goad said, “actively participating in ongoing settlement and proposal discussions with the city attorney and council and further assisting the city attorney and inspector in building their case and then subsequently serving as a judge in the very same case has the appearance of impropriety and hampers the public’s confidence in the municipal court.”

On February 7, Goad filed a motion in Mason County Circuit Court asking the court to prohibit Wilson from hearing the case. It has been assigned to Judge Thomas C.Evans.

In a prior conversation with the Record, Wilson, though declining to comment in detail on the case, said he was glad to see it moved to circuit court.

“We’re delighted,” Wilson said. “We now get a chance to prove our case.”

Mayorial candidate filed suit to recoup back taxes

In the case in which the city is a plaintiff, it is the one the Record first reported on last month in which the then-city clerk sought unpaid taxes from a local contractor. The city clerk, Marilyn McDaniel, is again Wilson’s opponent in the city election.

On June 30, 2003, a day before her term as clerk expired, McDaniel filed suit on the city’s behalf against Mid-Atlantic Construction. Though the suit lacked details, McDaniel alleged MAC was in arrears to the city $49,000 for unpaid business and occupation taxes for its “perform[ance] of various and certain construction projects.”

Other than a reply filed on July 23, 2003 by MAC’s attorney Raymond G. Musgrave denying the allegations, records show no further action has been taken in the case. It is currently in Evans’ courtroom.

McDaniel vacated her seat in an unsuccessful run for mayor in that year’s city election. Her opponent was Wilson, who was then the Ward Seven councilman.

She lost to Wilson by 17 votes. A recount narrowed the margin to 13 votes.

McDaniel and Wilson face-off again in the May 19 city election.

Settlement an option, but at a later time

For Wilson, settlement of the lawsuits may be an option, but only at the suggestion of the city’s insurer and attorney.

“Most of the lawsuits are in the hands of our insurance company or city attorney,” Wilson said, ” who will advise us of these situations and then I would make my decision.”

Supple, a Point Pleasant attorney, concurs that settlement of any lawsuit should remain an option if both parties believe it to their advantage. However, he declined to say specifically if the lawsuits involving the city should be settled as he was not aware of their details.

“Voluntary resolution of litigation is less expensive and generally results in a compromise acceptable to those involved,” Supple said. “However, I have insufficient information to recommend settlement.”

POINT PLEASANT – Following the lead of a Mason County physician, an Ohio man has brought a malpractice suit against a former Point Pleasant doctor, now living and working in Illinois, without filing a certificate of merit.

On Dec. 12, Ralph A. Barcus, of Gallipolis, Ohio, filed suit against Dr. Jack Levine. In his suit, Barcus, who is represented by Michael A. Eachus, of the Gallipolis law office of Eachus and Finley, named Pleasant Valley Hospital as a co-defendant.

In his suit, Barcus, 65, alleges both committed malpractice when Levine in 2001 failed to remove the entire catheter he inserted into Barcus’ chest two years earlier.

Though he provided both defendants the requisite 30-day notice of a pending lawsuit, Eachus maintains that the malpractice was so obvious that a certificate of merit from a qualified physician in Levine’s field is not necessary.

Eachus position is similar to one taken by Dr. Danny R. Westmoreland in his appeal to the state Supreme Court claiming that a 2003 law designed to curb malpractice cases actually hamstrings legitimate ones.

Remnants of catheter left for five years

According to court records, Levine inserted a Mediport catheter into Barcus’ chest on Nov. 22, 1999. On May 23, 2001, Levine would later remove Barcus’ catheter.

Though court records are not clear as to when, but Barcus’ claims to experience chest pains after the catheter’s removal. He maintains that prior to the catheter’s insertion, he never had chest pains.

Barcus was later examined by Dr. Dominic Gaziano on Oct. 25, 2004. Gaziano, records show, took an X-ray of Barcus’ chest and discovered an object in is mid-left lung.

Despite continued pain in the chest, it was not until almost two years later that Barcus dealt with the problem. Records show Dr. Richard Schlanger, assistant director of clinical surgery at Ohio State University’s Medical Center, removed a holding disc from Barcus’ chest on Oct. 5, 2006.

Later that month on Oct. 26, Eachus sent a notice of Barcus’ intention to file suit against Levine and PVH. Since Levine was an employee of PVH, Eachus alleged, they, too, were responsible for Barcus’ pain and suffering.

Court record show that both Levine and PVH were sent their respective pre-suit notifications via certified U.S. Mail. Though PVH accepted their letter, and subsequently requested additional information, Levine failed to reply within the 30-day deadline which ended Dec. 4.

Also, records show PVH, after Eachus honored their request for additional information, failed to respond by the deadline.

Negligence ‘speaks for itself’

Despite providing Levine, who records show left Point Pleasant in 2002 to practice medicine in Shelbyville, Ill., and PVH with a pre-suit notification, Eachus declined to send an accompanying certificate of merit. The mistake Levine made, Eachus alleges, was so obvious that one is not needed as required by the Medical Professional Liability Act of 2003.

In an effort to stem the tide of doctors leaving West Virginia because of increasing premiums to cover malpractice suits, the Legislature passed and Gov. Bob Wise signed the MPLA into law. Among its features were the 30-day pre-suit notification of a pending malpractice claim, and a certificate of merit from a qualified physician saying the suit has validity.

However, Eachus maintains that in Barcus’ situation, case law outweighs statutory law. To buttress his point, Eachus cited the Court’s using the doctrine of res ipsa loquitur, or “the thing speaks for itself,” in its 1991 ruling in the case of Farley v. Meadows, M.D.

“When a surgical sponge or scalpel shows up in the chest of a veteran of open-heart surgery,” the Court said in its opinion, “the only inference that can be drawn is that the foreign object was left in the chest from surgery.”

Applying the Court’s finding in Farley to Barcus’ case, Eachus’ maintains that since Barcus, who never had chest pains prior to the insertion of the catheter, but later experienced pain after the catheter’s removal partially due to remnants of the catheter being found in his chest, can only be the result of Levine’s negligence.

PVH dismissed form suit, Levine denies negligence

Though it did not file a reply to Barcus’ suit by the Dec. 4 deadline, PVH, through its attorney Paul Farrell of the Huntington law office of Farrell, Farrell and Farrell, did reply to the allegations against them. In their Dec. 28 reply, denied anything they did contributed to Barcus’ condition.

Also, though they admitted Levine had “staffing privileges” at PVH from July 21, 1988 to Dec. 31, 2001, they were not his “principal employer.” Because of this, and Barcus’ failure to supply a certificate of merit, Farrell filed a motion Jan. 8 to have the case against PVH dismissed.

Mason Circuit Judge Thomas C. Evans III set March 16 as the date to hear PVH’s motion. However, Farrell said prior to the hearing Eachus agreed to voluntarily dismiss PVH from the suit, and focus on Levine instead.

Eventually, Levine, too, filed a reply to Barcus’ suit. Though his attorneys Barry M. Taylor and Gary A. Matthews of the Huntington law firm of Jenkins Fenstermaker, Levine on Jan. 18 said he “denies any alleged negligence on his part and further denies that his conduct, if any, caused injury and/or damage to the plaintiff.”

Also, Taylor and Matthews maintain that res ipsa loquitur is not proper in this case and, because of that, “asserts all of the limitations, restrictions and requirements that are set forth in MPLA.”

Westmoreland appeal may guide outcome

Unless Evans makes a ruling before then, Westmoreland’s case, now pending before the Supreme Court, could determine the outcome of Barcus’ case.

In the 2005 malpractice suit he brought against Dr. Shrikant K. Vaidya, a Point Pleasant urologist, Westmoreland maintains that Vaidya so deviated from the standard of care, that a certificate of merit was not necessary. When in the course of Vaidya’s performing a cystoscopy on him in 2003 for the removal of sent in his ureter, Westmoreland told him repeatedly to stop because of the pain he was feeling.

Vaidya’s refusal to stop the procedure, Westmoreland alleges, violated the “no means no” principle.

Like Taylor and Matthews, Rob J. Aliff, co-counsel for Vaidya, took a hard line that the MPLA applied in Westmoreland’s suit against Vaidya. Kanawha Circuit Judge Tod J. Kaufman, who was appointed as a special judge to hear the case after Evans and Judge David W. Nibert recused themselves, agreed, and dismissed the case on Oct. 26.

In February, Westmoreland, with the assistance of Robert W. Bright of the Story Law Offices in Pomeroy, Ohio, filed an appeal. In their reply filed the next month, Aliff, and his co-counsel Thomas J. Hurney Jr. and Amanda Hoback with the Charleston law office of Jackson Kelly, continue to tout the legislative intent of the MPLA.

The case is currently pending before the Court. At this point, no action has been taken, according to Court spokeswoman Jennifer Bundy.

Mason Circuit Court case no. 06-C-173 (Barcus)