At the kitchen table in her Gallilpolis, Ohio, home, Delores Clonch looks over the copies of filings made in the malpractice case she and her husband, Buster, filed against former Mason County Dr. Jack M. Levine in 2000. “Scandaleous allegations” leveled against Levine, who now practices medicine in Illinois, led to the case being sealed. (Photos by Lawrence Smith)
Buster and Delores Cloch relax on the front porch of their home on Gallipolis, Ohio.
Delores Clonch shows a diagram of how the doctor would remove a portion of and later reattach her colon.
GALLIPOLIS, Ohio –- “Scandalous allegations” regarding a former Mason County physician’s conduct is what led to the file in a malpractice case against him placed under seal, records provided by the plaintiff in the case show.
Last month, The Record reported that Dr. Jack M. Levine has a pending malpractice suit against him in Mason County. In the suit, Ralph A. Barcus alleges Levine, who now practices medicine in Shelbyville, Illinois, left the remnants of a catheter in his chest which contributed to his subsequent chest pains.
The catheter, records show, was inserted into Barcus’ chest in Nov. 1999, and removed in May 2001. Levine, who had “staffing privileges” at Pleasant Valley Hospital, moved to Shelbyville shortly after removing Barcus’ catheter.
In addition to the Barcus case, records show Levine was sued on five other occasions between 1994 and 2001 for malpractice. All of the cases were either settled out-of-court or dismissed.
In one of the cases, the file was placed under seal because of what The Record has since learned were “scandalous allegations” of substance abuse the plaintiff, Delores Clonch, made against Levine. Though the allegations were something she related to her attorney, and not meant to be leveled in her original complaint, Clonch says, despite it resulting in the dismissal of her case, she has no regrets they surfaced.
“Dr. Levine is mean,” Clonch said. “Dr. Levine was mean to me. I suffered for a year and no one would listen.”
One surgery leads to another
A former restaurant manager, Clonch, 51, was referring to the time between May 1998 and May 1999 she had her gall bladder and a portion of her colon removed. She alleges that as a result of Levine doing the former resulted in another physician unnecessarily doing the latter.
According to Clonch, she went to her family physician, Dr Robert Holley, complaining of abdominal pains and vomiting. After an ultrasound was taken, Holly told Clonch her gall bladder was “dead” and needed to be removed soon.
When she asked for a recommendation, Holly suggested Levine.
Though the surgery appeared to be a success, Clonch said within a week she was feeling sick again. Nothing could be attributed to the sickness except for a drop in her blood count.
Her blood count, Clonch says, continued to decrease over the next year. During that time she continued to see Levine, in which all he did, Clonch alleges, was prescribe her medication.
When medication didn’t help, Clonch says she pleaded with Levine to readmit her to the hospital. Eventually, he referred her back to Holley who in turn admitted her to Holzer Medical Center in Gallipolis.
According to Clonch, the admitting staff said her blood count was so low, that she should have been in a coma. Likewise, after running some tests her, they discovered what may be the source of her sickness – a colon lacerated in three places.
Because of the lacerations, Clonch said doctors at Holzer told her that portion of her colon would have to be removed. Since agreed to the surgery, and says since then her blood count has returned to normal, and has only experienced problems normally associated with having a shorter colon.
“I mess myself sometimes,” Clonch said.
Substance abuse claims
After she recovered from the colon surgery, Clonch says she began to consult with attorneys to bring a possible malpractice case against Levine. After consulting with several from both West Virginia and Ohio, she retained Richard M. Lewis of Jackson, Ohio.
In hindsight, Clonch says selecting Lewis as her attorney led her to being not only a victim of the medical system, but also the legal system.
As she began to provide Lewis all the information about her case, Clonch says she also related to him a conversation she overheard about Levine in his waiting room. The conversation, Clonch alleges, dealt with Levine having a substance abuse problem.
Clonch provided The Record a copy of the complaint Lewis filed on her behalf against Levine and PVH. Though now under seal, Clonch’s copy of the complaint bears the official circuit clerk’s time-stamp.
It is dated Dec. 27, 2000, at 4:16 p.m.
In addition to making a claim for malpractice against Levine, Lewis also makes a “negligent credentialing” claim against PVH. Here, Lewis alleges PVH knew about allegations surrounding Levine’s substance abuse problem, and should have acted on it.
“Defendant Pleasant Valley Hospital negligently granted and continued staff privileges to Defendant Jack M. Levine, D.O., after such time that Dr. Levine exhibited a pattern of incompetence and signs of substance abuse of which the hospital should have become aware,” Lewis said in the complaint.
In his reply, Levine through his attorney Barry M. Taylor, of the Huntington law firm of Jenkins Fenstermaker, not only categorically denied Clonch’s allegations of malpractice, but also he had a substance abuse problem. In the copy of the reply Clonch provided the Record, which does not bear the circuit clerk’s official time-stamp, but contains Taylor’s signature and is dated May 26, 2001, Taylor asked that the allegations be stricken from the court record.
“…this defendant respectfully moves to strike the allegations relating to him as defamatory, scandalous and without any basis in fact and further respectfully moves that this honorable court order plaintiffs and their counsel to provide a written apology to him fully addressing these outrageous claims,” Taylor said in the reply.
The particulars of Levine’s alleged substance abuse problem deals with drinking as Lewis specifically address that in a letter to Delores, and her husband, Buster, dated Dec. 29, 2000.
“Delores had previously informed me that it was her understanding Dr. Levine had a drinking problem,” Lewis said in his letter. “That is the reason we have included the negligent credentialing claim against Pleasant Valley Hospital.”
“It may turn out that we will not be able to successfully maintain the negligent credentialing claim,” Lewis added. “We will have to develop evidence in support of the claim if are to keep it.
Otherwise, the Court upon a proper motion filed on behalf of the hospital will dismiss that particular claim.”
A legal ‘set-up’
In response to Levine’s motion to strike, Mason Circuit Judge David W. Nibert set a hearing date of June 26, 2001. It was during the hearing that the Clonch’s believe they were “set-up.”
When she first consulted with him, Clonch specifically asked Lewis if he was licensed in West Virginia. Clonch says he said, “Yes.”
However, the day of the hearing they meet Robert Q. Sayre on the courthouse steps. They later discovered that Lewis was not only not licensed in West Virginia, but also made a motion prior to the hearing he be excused in order to handle a divorce case in Jackson County Court of Common Pleas that day.
The Clonch’s say they were dumbfounded when Sayre told them, ” ‘I haven’t had time to prepare for this case.’ ”
Also, they say their hearts sank further when, while sitting in the courtroom with Sayre, they see Levine walk out of the judge’s chambers with his attorneys and Nibert. Though Levine’s attorneys walked into the courtroom with Nibert, the Clonch’s say Levine continued down the hallway behind the courtroom toward the exit, and was never seen again.
“I said ‘We’re done,’” Delores said. “Why weren’t we back there with our attorney?”
“He [Sayre] went right into a hearing and didn’t know what he was doing,” added Buster. “I told them ‘We’ve been had.’ ”
The entire hearing centered on the allegations of Levine’s substance abuse. What was disappointing, Delores said, was that nothing related to the alleged malpractice was ever discussed.
“I thought we were going to trial on the colon thing,” she said.
‘No way in Hell’
The substance abuse allegations led Nibert to not only rule in Levine’s favor, but also go a step further in ordering the case sealed. Clonch provided the Record with a draft of Nibert’s order granting Levine’s motion and placing the civil action under seal.
Though the document Clonch provided bears no official time-stamp or signature, it does show a fax machine header from Jenkins Fenstermaker on Aug. 3, 2001 at 10:41 a.m., and Robert Q. Sayre on Aug. 6, 2001 at 9:25 a.m.
“That the mere striking of the allegations pursuant to Rule 12(f), West Virginia Rules of Civil Procedure, is an inadequate remedy for the harm caused by placing such allegations in the public record, and, therefore, both plaintiffs and their counsel are sanctioned and shall issue letters of public apology forthwith to Dr. Levine relating to their scandalous allegations of incompetence and/or substance abuse, consistent with Rule 11(b) and 11(c), West Virginia Rules of Civil Procedure,” Nibert’s order read.
“That the record in this civil action shall be sealed to prevent further disclosure of the allegations,” Nibert added.
Though they don’t recall the exact day, the Clonch’s remember Lewis and Sayre coming to their home and informing them of Nibert’s decision to grant Levine’s motion. In addition to a written apology, the Clonch’s say Levine was asking them to pay his attorney’s fees.
Fearing the loss of their home and property, the Clonch’s agreed to dismiss the case on the condition they not pay Levine’s attorney’s fees. Also, they remained adamant about not issuing an apology.
“There was no way in Hell I was going to apologize,” Delores said.
The exact wording of the final draft of Nibert’s order is unknown since it is under seal. However, what is known that the Clonch’s via Lewis and Sayre signed off on it in early September 2001.
In a letter dated Sep. 11, 2001 addressed to Taylor, Lewis said, “Enclosed please find the original Order Granting J. Levine, D.O. Motion to Strike and placing Civil Action Under Seal in the above-referenced case that has been signed by attorney Sayre and myself.”
Also, what is known is that Nibert formally dismissed the case on Oct. 19, 2001.
Standing up for other victims
The Record attempted to obtain comments from Lewis, Sayre and Taylor. However, all three men were reluctant to speak publicly about the case.
When reached for a comment, Lewis asked that a reporter’s credentials and questions be forwarded to him via e-mail. In addition to the credentials, Lewis was asked why he felt it necessary to include the allegations of Levine’s substance abuse in the original complaint, and if he felt he provided adequate legal assistance to the Clonchs.
As of press time, Lewis had not replied to the questions submitted to him.
In a previous interview, Sayre declined to comment on the case “because it was so long ago.”
Likewise, Taylor said the passage of time makes his memory of the case “hazy.” Also, given the fact that the case is under seal, he was uncomfortable speaking to any aspect of it.
Though there are gaps in her memory of what happened in her case, Clonch says her memory of being treated by Levine is very vivid. By speaking publicly about her case, and resurrecting some of the issues raised in it, Clonch says she hopes that people who’ve been mistreated by doctors, and lawyers, will stand-up for themselves.
“It was never over drinking or substance abuse,” Delores said. “It was about what he [Levine] did to me. We were screwed out of a case.”
Mason Circuit Court case number 00-C-216 (under seal)