Pleasant Valley Hospital

POINT PLEASANT – Two lawsuits involving Pleasant Valley Hospital have come to a conclusion, one resulting in an out-of-court settlement, and another in its favor.

On Dec. 26, Mason Circuit Judge David W. Nibert dismissed with prejudice a malpractice claim Phyllis Mitchell on May 5, 2006. In her suit, Mitchell named Dr. Clyde J. Rorrer as a co-defendant.

According to court records, Mitchell accused PVH and Rorrer of malpractice when Rorrer improperly diagnosed her breathing problems as bronchitis. Her suit alleged that a follow-up examination by another physician discovered her breathing problems were a result of the remnants of a peanut being lodged in her lung, which later resulted in an acute case of pneumonia, and partial removal of the lung.

On Dec. 13, Paul Farrell with the Huntington law firm of Farrell, Farrell and Farrell, which was representing both PVH and Rorrer, asked PVH be dismissed from the suit.

Nibert granted Farrell’s motion noting that the case “has been fully compromised and settled.”

Meeting the 229 threshold

About three months later, Nibert ruled on another case involving PVH.

In that case, Nibert handed them a victory in their appeal of the state Health Care Authority’s decision to approve a certificate of need to a competitor to its home health service.

According to court records, Ohio Valley Home Health, 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. The Office of Judges, records show, affirmed the Authority’s decision on Jan. 9, 2006.

On Feb. 9, PVH, through its attorney Thomas G. Casto of the Charleston law office of Lewis, Casey and Rollins, filed an appeal to Mason Circuit Court.

In their respective briefs, both Casey and Robert Thomas, with the Charleston law office of Jackson Kelly, and representing OVHH, cited Authority rulings supporting their claims why Nibert should rule in their favor based on the Authority’s “229 threshold.”

This benchmark set by the Authority, Casto said is where, “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.”

Casto pointed to one case in 1996 where the Office of Judges denied a CON to a Wayne County home health agency where the unmet need was 224. Because OVHH’s unmet need application was 198, the CON should be denied.

In his Aug. 21 brief, Thomas said the 229 threshold “becomes relevant only if there are agencies within the proposed county that received CON approval within the last 12 months.” That’s what happened in the Wayne County case, Thomas said.

Also, Thomas said the “credibility of PVH’s argument under the Need Methodology is further undermined by PVH’s own prior CON application.” He cited a 2001 case in which PVH applied for and received a CON to expand its home health services to Wayne, Jackson, Putnam and Lincoln counties based on an unmet need of 75, 127, 386 and 97 patients, respectively.

‘Arbitrary and conflicting’

In his 10-page ruling, Nibert seemed to use Thomas’ argument for the crux of his decision. The 12-month rule, Nibert said, in conjunction with the Authority’s three other steps in the Need Methodology creates an inherent conflict to the Authority’s mission to avoid duplication of health services.

“As noted previously, the Authority’s interpretation of the regulation and the selective enforcement and non-enforcement of the fourth part of the need methodology necessarily results in absurd and conflicting decisions,” Nibert said. “It is possible for the Authority to approve an application where the projection of unmet need is between 1 and 228 available new patients and also deny one with the same projected result.”

“The result depends upon whether there has been a recently approved provider in the market in the previous twelve months and, thus, depends on whether the fourth step is utilized or ignored,” Nibert added.

In his ruling, Nibert pointed out that the application of the Authority’s standards, and not the standards themselves, were being called into question. Nevertheless, because of the conflicting way they interpreted the standards, Nibert reversed and remanded the Authority’s and Office of Judges’ decisions.

“Because the Decisions of the Authority and OOJ in this matter are arbitrary, capricious, constitute an abuse of discretion, are otherwise not in accordance with law, are manifestly contrary to the Standards and are not in accordance with the Standards, the decisions are due no deference,” Nibert said.

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

POINT PLEASANT -– Court records show five previous malpractice suits against a Point Pleasant doctor now residing in Illinois, including one that is under seal.

In December, Ralph Barcus filed suit against Dr. Jack Levine. In his suit, Barcus, of Gallipolis, Ohio, alleges Levine committed malpractice by leaving the remnants of a catheter in his chest.

According to court records, Levine first inserted the catheter into Barcus on Nov. 22, 1999. Levine later removed it on May 23, 2001.

However, Barcus alleges he experienced pain in his chest near the area of the catheter. Court records show Barcus consulted with two physicians who determined the pain was a result of a small piece of the catheter remaining inside of Barcus.

Barcus’ suit is not the first time a malpractice case has been brought against Levine while he lived in West Virginia. Court records show Levine, who now practices medicine in Shelbyville, Ill., was sued on five occasions between 1994 and 2001.

Out-of-court settlement

Lila Leport first sued Levine on March 15, 1994. Records show Leport brought the suit as the administrix of her daughter Cheryl’s estate.

In her suit filed with her attorney Gerald R. Lacy, Leport alleged Levine “negligently and carelessly failed to diagnose and treat medical complaints and illnesses, perform surgery and other emergency measures necessitated by the condition and failed to render proper medical care treatment and attention.” Though records are not exactly clear, Leport alleges her daughter died as a result of Levine’s care during her stay at Pleasant Valley Hospital from June 30 to July 11, 1992.

PVH was named as a co-defendant. Later on June 29, 1994, Dr. Maltendrakumar C. Shah was included as a co-defendant.
In their reply, Levine and PVH through their attorneys Barry M. Taylor and Sprague Hazard said that “decedent contributed to her own injuries and, therefore, plaintiff’s claims are barred or reduced by the doctrines of comparative and contributory negligence.”

Records show PVH was dismissed from the suit on Feb. 21, 1995. Shah, who was represented by William L. Mundy, was also dismissed from the suit on May 11, 1995 in exchange for him agreeing not to pursue a suit against Leport.

The case against Levine was also dismissed on May 11 when, records show, Leport reached an out-of-court settlement with him.

About the time he reached a settlement with Leport, Lucy Ann Thompson alleged she was a victim of malpractice on Levine’s behalf.

In a suit brought on Dec. 18, 1996, Thompson and her husband, Lawrence, allege a March 15, 1995 Levine performed a bowel reanastomosis on Thompson “in an improper and negligent manner.”

Because of this, Thompson, via her attorney William D. Levine, allege that she “sustained a wide-spread, life-threatening condition which required an additional complicated surgical procedure to correct and which has caused her to suffer and will continue to cause her to suffer the rest of her life.”

PVH and Dr. Edward Ayers were named as co-defendants in the suit. Michael J. Farrell and Tamela J. White represented them both.

In his reply, while admitting he was Thompson’s attending physician, Ayers “deni[ed] that he delivered medical care during Lucy Ann Thompson’s surgery.” In its reply, PVH said it “is without knowledge or information sufficient to form a belief as to the truthfulness of the allegations contained therein and, therefore, demands the same and demands strict proof thereof.”

The case was put on hold for almost a year while a case against Levine’s insurance carrier, P.I.E Mutual Insurance Company, reached a conclusion in the Franklin County, Ohio Court of Common Pleas. The case, records show, dealt with Ohio’s insurance commissioner’s allegations that P.I.E was insolvent.

Then-Mason Circuit Judge Clarence Watt granted a 90-day stay effective Dec. 15, 1997 to March 15, 1998. Records show during the stay on Feb. 2, 1998, Ayers was dismissed as a defendant.

Records show P.I.E was placed in liquidation by the state of Ohio on March 23, 1998 by the order of Judge Watson in Franklin County. As a result of the order, the West Virginia Guaranty Association assumed P.I.E’s liability’s and assigned James D. McQueen Jr. and Chanin M. Wofinbarger as Levine’s attorney.

Thompson’s case against Levine was settled on Sep. 7, 1999. Also, records show, her case against PVH was dismissed on Feb. 16, 2000 with “each party to bear its costs and attorney’s fees.”

Once again, as one suit against Levine was coming to a close, another one was starting. Records show Sandra and John Hill filed suit against Levine on April 1, 1999 alleging a “total abdominal hysterectomy” Levine performed on Sandra on March 24, 1997 later “burst open due to infection.”

Again, PVH was named as a co-defendant. Both PVH and Levine, though their respective attorneys, Joseph M. Farrell and Richard D. Jones, maintained that the injuries Hill received where her own.

Records show the Hills, who were representing themselves pro se, did not reply to PVH’s or Levine’s request for discovery. The Hill’s on Aug. 16, 1999 agreed to voluntarily dismiss the suit.

Under seal

Almost two years after settling the Hill case, Urata A. Singleton sued Levine. In her suit, filed Oct. 4, 2001, Singleton alleged that Levine filed to properly remove a ganglion cyst from her left foot on April 7, 2000.

“Because of a direct and proximate result of defendant’s negligence, Singleton suffered permanent damage in and to her left foot and leg was well as other parts of her body,” said Singleton’s attorney Frank Armada in filing her complaint.

Records show Singleton was seeking $15,000 in damages for direct medical expenses as a result of Levine’s alleged malpractice.

Levine via his attorneys Barry M. Taylor and Max L. Corley III said Singleton’s “injuries and/or damages proximately resulted from a pre-existing condition or injury or natural disease and not any acts or omissions of this defendant.”

Eventually, Singleton made a motion to voluntarily dismiss her claims against Levine on March 29, 2004, a day before the case was slated for trial. Mason Circuit Judge Thomas C. Evans III granted that motion on May 3, 2004.

Though it is not immediately clear, but records indicate Singleton’s desire to dismiss the case resulted in her inability to use a “confidential and privileged document” Armada received from PVH.

Records show that Evans ordered some documents under seal.

Armada filed a writ of prohibition against Evans with the state Supreme Court on March 23, 2004. The court in a 4-1 decision denied Armada’s petition.

Also, the court denied a petition by Taylor and Corley to place the entire file under seal.

During the March 29 hearing, Taylor and Corley filed a motion for protective order requiring Armada to return the document. Though Evans said Armada did not have to return it, he was barred from discussing it.

“The document referenced is confidential and privileged and orders setting forth its nature and placing it and certain other related documents under seal remain in full force and effect upon dismissal,” Evans said in his ruling. “Moreover, plaintiffs and Mr. Armada shall not disclose the privileged document and/or its contents except by further order of this Court.”

Though only portions of Singleton’s malpractice case against Levine were placed under seal, the entire case of another case was.

According to records, Delores Clonch was the lead plaintiff in a suit filed against Levine and PVH. The suit was filed on Dec. 27, 2000.

Tamela White represented Levine and PVH with Robert Q. Sayre and Richard M. Lewis representing the plaintiffs.

The case was dismissed on Oct. 19, 2001, two weeks after Singleton filed her suit. Court records are unclear as to which side made the motion to Judge David W. Nibert to seal the file.

Mason Circuit Court case numbers 94-C-24 (Leport), 96-C-173 (Thompson), 99-C-48 (Hill), 00-C-216 (Clonch, et. al.) and 01-C-320 (Singleton).

POINT PLEASANT – In addition to remaining tight-lipped about how a recently accepted appeal to the Supreme Court may effect their case, attorneys for a former Mason County physician, now practicing medicine in Illinois, aren’t talking about one of his previous malpractice cases currently under seal.

Last week, The Record reported that Dr. Jack Levine, who until December 2001 practiced family medicine in Point Pleasant, was sued five times for malpractice between 1994 and 2001. A sixth suit was brought against Levine, who now practices in Shelbyville, Ill., in December.

In the latter suit, the plaintiff, Ralph A. Barcus of Gallipolis, Ohio alleges Levine in 2001 failed to removal all of a catheter he originally placed in Barcus’ chest in 1999. In his complaint, Barcus’ attorney Michael Michael A. Eachus, of the Gallipolis law office of Eachus and Finley, says Levine’s negligence was so gross, that a certificate of merit as required by the Medical and Professional Liability Act of 2003 is not necessary.

Though with slightly different logic, Dr. Danny R. Westmoreland, also a family physician, maintained the malpractice case he brought against Point Pleasant urologist Shrikant K. Vaidya in 2005, could proceed without a certificate of merit because of Vaidya’s deviation from the applicable standard of care. However, Kanawha Circuit Judge Tod J. Kaufman, who was appointed to hear the case after Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves, disagreed, and dismissed the case on Oct. 26.

On Feb. 15, Westmoreland, via his attorney Robert J. Bright with the Storey Law Offices in Pomeroy, Ohio, appealed Kaufman’s decision to the Supreme Court. On June 6, the Court agreed to hear Westmoreland’s petition for appeal.

Neither Eachus, nor Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, and co-counsel with Gary A. Matthews to Levine, would comment on how Westmoreland’s appeal may impact their case. Likewise, neither counsel for Levine nor the parties in the 2000 case now under seal would discuss how and why the case got that way.

Little details offered

According to court records, the first three cases against Levine were in some way settled. In two cases, the plaintiffs reached an out-of-court settlement with Levine with the third agreeing to voluntarily dismissing the suit against him.

Following the dismissal of the third suit on Aug. 19, 1999 was the case now under seal. All that is known about it is that Delores Clonch filed it on Dec. 27, 2000, Richard M. Lewis, of Jackson, Ohio and Robert Q. Sayre of Charleston, represented her and Levine and Pleasant Valley Hospital were named as co-defendants.

Tamela White of the Huntington law firm of Farrell, Farrell and Farrell served as Levine and PVH’s counsel. The case was dismissed on Oct. 19, 2001, and placed under seal by Nibert.

However, the Mason Circuit Clerk’s office has no information as to who requested the records sealed.

About two weeks prior to the dismissal in the Clonch case, Urata A. Singleton sued Levine. In her suit, filed Oct. 4, 2001, Singleton alleged that Levine filed to properly remove a ganglion cyst from her left foot on April 7, 2000.

The suit appeared to be headed for trial until Singleton’s attorney, Frank Armada of Teays Valley, made a motion on March 29, 2004 to voluntarily dismiss her claims against Levine. Though it is not immediately clear, but it appears Singleton’s case depended on a “confidential and privileged document” Armada obtained from PVH.

Prior to the March 29 hearing, records show Levine’s co-counsel, Taylor and Max Corley III, asked the Supreme Court to place the entire file under seal. The Court denied their request, but left intact those portions of the file Evans placed under seal.

During the March 29 hearing, Taylor and Corley asked Evans for a protective order to compel Armada to return the document. On May 3, 2004, in his dismissal order Evans denied Taylor and Corley’s request for a protective order, but barred Armada and Singleton from discussing the document.

Though legal counsel for each side in the Clonch case aren’t barred from discussing the case, none are willing to do so. White did not return repeated telephone calls seeking a comment, and Sayre declined to comment, “because it was so long ago.”

Exception, not rule

Though the “default position” for malpractice cases is openness, judges will place the file under seal for any variety of reasons especially if an issue of privacy is involved, said Robert Bastrass, a professor of law at West Virginia University. The reason for sealing a file is case-specific.

“It could be that the plaintiff didn’t want certain conditions disclosed,” Bastrass said.

Especially in cases like Levine’s where a defendant has had multiple suits filed against him or her, open court records aid the public, Bastrass said. In order to protect the rights of all parties involved in case, including the public, “the presumption should be for openness.”

“Documents should be kept open unless there is a compelling reason not to,” Bastrass said.

In his 33 years of practicing law in West Virginia, Bastrass says he’s been pleased with most judges observing Article III, Section 17 of the state Constitution observing the right of citizens to open courts.

“I have a couple of issues with West Virginia practices and procedures, but overall I believe the courts have done a good job of keeping records open,” Bastrass said.

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)

POINT PLEASANT – Despite the election being over, several newly election members of the Point Pleasant city council remain mum or non-committal on whether the city should settle or fight three lawsuits that were initiated during the previous administration.

Prior to the May 19 municipal election, The Record sent a questionnaire to all 23 candidates seeking office. Only two candidates, incumbent Mayor Jim Wilson, a Democrat, and Joe Supple, a Republican candidate for one of the at-large council seats, replied.

Supple and his GOP colleagues, including mayoral hopeful Marilyn McDaniel and incumbent City Clerk Brian Billings, swept the election, winning nine out of the 10 seats on council. The only seat they didn’t win was in the 4th Ward.

There, the party decided not to pit a challenger to incumbent councilman William Park.

The new Republican-dominated council, which officially took office July 1, will enjoy an extra year in power as voters approved a change to the city charter moving the municipal election to coincide with the state primary in 2012.

In following up on the issue of lawsuits, only two council members replied, Supple and Sam Juniper. Several other council members, including Robert Doeffinger and Leota Sang, as well as Mayor McDaniel, were either unavailable for comment or did not return repeated telephone calls.

Personal injury, code enforcement

Since the last municipal election in 2003, the city has been sued three times. Two suits involve personal injury, and the other pertains to a dispute over enforcement of the city code.

Both personal injury suits were filed in 2005. One case alleges the city was negligent in a fall a woman sustained as a result of an open water meter hole while the other alleges a woman sustained damage to her person and vehicle as a result of 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.

In her suit, 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, Henderson 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.

In the third suit, Howard Yeager asked Mason Circuit Judge Thomas C. Evans III on Feb. 7 to prohibit Wilson from presiding as judge in the city’s case against Yeager in municipal court for failing to comply with its distressed property ordinance. Though Jeremy Vickers, the city’s regular municipal judge, recused himself because of his involvement in the case as assistant city attorney, Yeager said Wilson, too, should have recused himself because of his role in the negotiations.

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

Because Wilson was defeated for re-election, it was not immediately clear if Yeager’s case becomes moot.

Settlement always on the table

In his reply to the campaign questionnaire, Supple, a Point Pleasant attorney, said 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.

Now as a councilman, Supple says he’s reluctant to comment on the cases until he receives more information from the city attorney.
“I don’t think it would be fair to put him in a bad situation,” Supple said.

Like Supple, Juniper, who represents the 7th Ward, says settlement should always an option. From personal experience, Juniper, a retired chemical worker, says he knows how frustrating litigating a case can be.

“If they can be settled reasonably, then I’m in favor of it rather than a long drawn out court battle,” Juniper said.

Attempts to get further details on the cases, including their status and how much the city has spent to-date on attorney’s fees, was unavailable as James Casey, Point Pleasant’s city attorney, did not return repeated telephone calls for a comment.

POINT PLEASANT – At least one lawsuit in which the city of Point Pleasant was involved was apparently settled over two years ago, but paperwork to formally dismiss it was only recently signed.

In addition to being a defendant in three lawsuits, the city of Point Pleasant was a plaintiff in one civil action. In that case, the city sued a local contractor for unpaid business and occupation taxes.

Court records show then-city clerk Marilyn McDaniel brought suit against Mid-Atlantic Construction for $49,000 it was in arrears to the city. The case was filed on June 30, 2003, a day before her term as clerk expired.

McDaniel vacated her seat in an unsuccessful bid against then 7th Ward Councilman Jim Wilson for mayor. However, on May 19 McDaniel successfully unseated Wilson in a rematch of 2003′s election.

Other than a reply filed on July 23, 2003 by MAC’s attorney Raymond G. Musgrave denying the allegations, records show no further action had been taken in the case until a week prior to the election.

Records show Mason Circuit Judge Thomas C. Evans III dismissed the case on May 11 at the request of Musgrave and James Casey, Point Pleasant’s former city attorney.

Despite what’s written on paper, newly elected 7th Ward Councilman Sam Juniper said the case came to a conclusion long ago. According to Juniper, Casey told the council at one its meetings the case was settled in 2005.

“It’s my understanding the council was made aware of that two years ago in February,” Juniper said.

Casey, Juniper said, offered little details on the settlement including how much the city recouped. It was his understanding because the case was settled out-of-court, Casey couldn’t divulge that matter, Juniper said.

“I don’t think it’s right to get off the hook if they settle next to nothing,” Juniper said.

Ronald F. Stein Jr. recently was appointed to replace James Casey as Point Pleasant’s city attorney. (Photo by Lawrence Smith)

POINT PLEASANT –Included in the first official acts of the new city council was appointment of a city attorney, and elimination of the municipal judge.

With little fanfare, other than taking an oath of office, Ronald F. Stein Jr. was appointed unanimously at the July 9 council meeting to lend legal advice to the city of Point Pleasant. A solo practitioner, Stein replaces James Casey as city attorney.

The replacement came as little surprise as Republicans swept the May municipal election. In addition to the mayor and city clerk, the GOP won nine of the 10 council seats up for grabs.

The only seat they didn’t win was the 4th Ward. At its March caucus, the party decided not to field a candidate against incumbent councilman Bill Park, a local physician.

In addition to having his own law practice and serving as city attorney, Casey is chairman of the Mason County Democratic Party, and a member of the party’s state executive committee. Also, he is a lobbyist for the West Virginia Association for Justice, formerly known as the West Virginia Trial Lawyers Association.

His participation with the latter rankled many council members, including some in his own party like former 8th Ward Councilwoman Carole A. Jones, as he was often absent from council meetings when the Legislature was in session. Though she admitted that politics played a role, McDaniel, noting the four years she worked with Casey while she was city clerk, said replacing Stein with Casey was not mean-spirited.

“I thought we needed a change,” McDaniel said.

In addition to appointing a new city attorney, the council also voted unanimously to eliminate the position of municipal judge. The former judge, Jeremy Vickers, also doubled as the assistant city attorney.

Given the city’s finances, McDaniel said elimination of the position is one of the ways the new administration is trying to save money.

As provided by state code, McDaniel said after she takes a class she will begin hearing cases as the city’s new municipal judge.

Like with Casey, McDaniel said the decision to replace them was not personal.

“Instead of informing them via a letter, I called them, invited them over to my home and told them privately of my decision,” McDaniel said.

Looking forward to serving

A Mason County native, Stein, 32, said he’s looking forward to serving as city attorney for the next five years. In the May election, voters approved a change to the city charter to give the new council a one-time five-year term so as to realign the next municipal election with the state primary in 2012.

“I don’t really look at this as a stepping stone in my career,” Stein said. “I look at it as an opportunity to serve the people of the community where I grew up.”

A 2001 graduate of the West Virginia University School of Law, Stein clerked for Mason Circuit Judge David W. Nibert for two years, before he was admitted to the bar. Though like most small town attorneys who have to be a jack-of-all-trades in the area of law, Stein says his appointment as city attorney notwithstanding, he’s finding a niche for his legal services.

“The list of what I don’t do is longer than what I do do,” he said.
That don’t-do list includes two areas which many attorneys have found profitable – bankruptcy and workers’ compensation.

“I don’t know anything about them,” Stein said.

Becoming an attorney, Stein said, was almost a forgone conclusion as he “grew up with it.” His father, Ronald F. Stein Sr. was an attorney until his death in 1995.

The decision to tap him as the city attorney from the available pool in Mason County, McDaniel said, was based on a long talk she had with him. After meeting with him in his office where they “talked and talked and talked” about many issues, she said she felt a connection with him.

“Have you ever had a feeling it’s right?” McDaniel queried. “That’s the way I felt.”

For his services to the city, McDaniel said Stein will receive the same rate of pay Casey received. According to records she provided, he was paid $14,423 last fiscal year.

Urata Singleton attempts to negioate the hallway in her Leon home. A malpractice suit she filed against Dr. Jack M. Levine in 2001 alleges surgery he performed on her foot contributed to her near inability to walk. (Photo by Lawrence Smith)

Singleton shows the scars from the surgeries she’s had on her foot since 2000. The orginial surgery performed by Levine may have been unnecessary, and led to Singleton filing a suit against Levine.

LEON – Had a former Mason County physician shown a little compassion and courtesy, he would not have been the defendant in a lawsuit says one of his former patients.

“He never once tried to help me or find out what the problem was,” said Urata A. Singleton about Dr. Jack M. Levine. “He wanted to put my problem on someone else.”

In addition to Levine, Singleton, 40, doesn’t have many good words for her attorney, Frank Armada of Teays Valley, who she hired to bring a malpractice suit against Levine in 2001. Despite keeping her informed early on of the case’s progress, Singleton alleges Armada never told her why portions of her case were ordered sealed by the judge or the reason why it was dismissed in 2004.

“I don’t know why it was closed,” Singleton said. “All I know is I was screwed.”

A simple procedure gone bad

According to records on file in the Mason Circuit Clerk’s office, Singleton was one of five people to bring a suit against Levine in the seven-year period of 1994 to 2001. Ralph A. Barcus, of Gallipolis, Ohio, filed what is now the sixth suit against Levine in December alleging Levine failed to totally remove a catheter from his chest in May 2001.

All five previous cases against Levine, who, according to court records, had staffing privileges at Pleasant Valley Hospital from 1988 to 2001, were closed for one reason or another. Three of the cases were either voluntarily dismissed or settled out-of-court.

Another filed by Delores and Buster Clonch of Gallipolis, Ohio was dismissed in October 2001 when their attorney Richard M. Lewis of Jackson, Ohio, could not substantiate allegations of substance abuse on Levine’s behalf leveled against him in the initial complaint. The order to seal the case by Mason Circuit Judge David W. Nibert came two weeks after Singleton filed her suit against Levine.

According to Singleton, her experience with Levine — who now lives and practices medicine in Shelbyville, Ill. — started in 2000.

It was then, she said, that her family physician, Dr. Curtis Pack, referred her to him for treatment of a Ganglion cyst on her left foot.

The cyst, Singleton said, was basically a knot on the top of her foot that “wasn’t painful, but it was irritating.” The position of the cyst made tying her shoes difficult, she said.

Upon consulting with him on a Tuesday, Singleton said Levine told her that it was imperative she immediately have surgery to remove the cyst. Three days later, Singleton says she was under the knife.

That decision was a fateful one, Singleton says. She alleges that as a result of Levine’s surgery she was not been able to walk without assistance since then.

Also, Singleton said she later learned from other doctors that the surgery was unnecessary. She was told that the cyst could have been “removed” by simply sticking a needle in it, and sucking out the fluid.

Furthermore, adding the proverbial insult in injury was Levine telling people in conversation and during deposition that she was the one who was insistent on having the surgery.

Pawning off responsibility

Problems with Levine’s surgery, Singleton said, surfaced immediately. After the anesthesia wore off, the pain was very noticeable.

“The pain was just so severe in my foot it was terrible,” Singleton said. “They sent me home screaming.”

Despite expressing her concerns about the pain, Singleton says Levine kept telling her it was all “in her head.” Though he later prescribed her some pain medication, she was unable to tolerate them.

For the first three months after the surgery, Singleton says her foot stayed purple with the area around the incision oozing. At the suggestion of her gynecologist, Singleton went to have her foot re-examined.

However, that was not easy, she said. After consulting with Pack about what he could, he referred her to Levine since he was the one who performed the surgery.

At this point, Singleton said she felt like a ping-pong ball as Levine referred her back to Pack who, again, referred her to Levine. Instead of setting an appointment with her to diagnosis the problem, Singleton says Levine refers her to an orthopedic specialist at PVH.

Frustrated, Singleton says she conferred with Dr. Jeffrey Shook in Huntington who performed three surgeries on her foot between August 2000 and August 2001. The surgeries relieved the pain, and for awhile, enabled her to walk with little assistance.

Not informed of dismissal

The decision to bring a malpractice suit against Levine, Singleton said, came prior to consulting with Shook “to clean up [Levine's] mess.” According to Singleton, Levine said if she were to seek disability, he would help see that she got it. But, if she sued him, he would see to it that she got nothing.

On Oct. 4, 2001, with the assistance of Armada, Singleton filed suit against Levine. In her original complaint, Singleton alleged that as a result of Levine’s actions she “suffered permanent damage in and to her left foot and leg as well as other parts of her body.”

In her suit, Singleton asked for $15,000 in damages for direct medical expenses as a result of Levine’s alleged malpractice.

From the time the suit was filed until 2004, Singleton said the case appeared to be going in her favor. The only obstacle was getting Levine deposed.

Any hopes of receiving some sort of settlement were dashed on March 23, 2004. It was about this time Singleton says she received a call from Armada saying that Mason Circuit Judge Thomas C. Evans III refused to hear the case against Levine, and that any further legal action against PVH, which was named as a co-defendant, was “hanging by a thin thread.”

Armada, Singleton said, pledged to keep her updated. However, she later learned second-hand the case was dismissed, and, to date, has received no communication from Armada.

According to court records, the case was slated for trial on March 30. The day before, a hearing was held on the case in which Armada made a motion on Singleton’s behalf to dismiss her claims against Levine.

Court records indicate that the desire to dismiss the case was a result of Armada’s inability to use a “confidential and privileged document” he received from PVH. At the request of Levine’s attorneys Barry M. Taylor and Max L. Corley III, of the Huntington law firm Jenkins Fenstermaker, Evans placed portions of the court record containing the document under seal.

Armada filed a writ of prohibition against Evans with the state Supreme Court on March 23. In a 4-1 decision, the Court denied his petition.

Likewise, the Court denied a petition by Taylor and Corley to place the entire case under seal. In a unanimous decision, the Court ordered that only what Evans placed under seal would remain under seal.

Nevertheless, during the March 29 hearing, Taylor and Corley filed a motion for a protective order requiring Armada to return the document. In his May 3, 2004 dismissal order, Evans ruled that though Armada did not have to return the document, he was barred from discussing it.

Though Evans’ order also bars Singleton from discussing the document, she says she has no idea what it was about. All she knows it that Armada has refused to return any of the phone calls she’s left with him since the case was dismissed.

“We felt very confident in winning the case,” Singleton said. “Nothing was ever said it was over and done with.”
When the Record attempted to get a comment from Armada, he refused to return repeated telephone calls. Also, Taylor declined to comment on Levine’s behalf for this story.

Ordeals far from over

Since the case’s dismissal, Singleton’s problems have compounded. Her feeling of hopelessness as a result of her limited mobility led to a rift in her marriage to her husband, Danny.

They divorced in 2005.

Shortly after that, Singleton moved to Nitro. At one home in which she was living, a wall collapsed on her, crushing two of her vertebrae.

The injury, she says, makes standing, let alone walking, difficult.

Though on partial disability while still married to him, Singleton had to go back to work after she divorced Danny. However, the injury she sustained from the wall collapse has forced her to seek total disability.

Now, she is back living with Danny in Leon. The living arrangement, she said, is mostly for the benefit of their two teenage children so they can have someone to provide for them while she seeks approval of her application for disability payments.

The inability to partake of her children’s outside activities is what bothers Singleton most. Prior to the surgery on her foot, she was active in her son’s midget football league.

Levine, Singleton tearfully says, “has taken that away from me for no reason.”

Had he admitted he made a mistake and worked, as she asked, to correct it, Singleton said she probably wouldn’t have filed her suit. However, his arrogance led her to take the action she did, and the bitterness she still has for him.

“Yeah, I hate Dr. Levine,” Singleton said composing herself, and lighting up a cigarette. “He’s not No. 1 in my book. If all he would have done is fix me.”

Mason Circuit Court case number: 01-C-320

POINT PLEASANT – A former physician’s assistant at a Mason County hospital alleges the physician’s wife orchestrated her removal from his staff.

On July 23, Anita Petitte filed a wrongful termination suit in Mason County Circuit Court. In her suit, Petitte names Dr. Robert L. Lewis II, and his wife, Cindy, as defendants.

Also named in the suit is Pleasant Valley Hospital where Petitte worked for Dr. Lewis as a physician’s assistant.

According to the suit, Petitte worked for Lewis from December 2006 until May. Because of her “extensive training and experience as a physician’s assistant,” her suit maintains, “[Petitte] was very proficient and efficient in the performance of her job duties for Robert L. Lewis II, M.D. and Pleasant Valley Hospital, Inc.”

However, Petitte alleges that her employment from Lewis’ staff at PVH was terminated in May. According to court records, Petitte alleges the termination was “due to the sexual harassment, gender discrimination and defamation of character to which defendant Cindy Lewis subjected [Petitte].”

Though it is not exactly clear as to when, but records show that during the course of Petitte’s employment, Cindy Lewis began harassing her. This harassment, Petitte alleges in her suit, “included, among other things, unwelcome and offensive remarks and/or innuendoes directed to Plaintiff and others that implied Plaintiff was having and affair/sexual relationship with defendant’s husband, Robert L. Lewis, M.D.”

Furthermore, Petitte alleges that Cindy Lewis, who records show, like Petitte, was an employee of PVH on Dr. Lewis’ staff, “would also send harassing and derogatory messages to Plaintiff via e-mail and telephone calls to her home” concerning the alleged affair.

Also, records show “Cindy Lewis also publicly demeaned the Plaintiff’s work performance and work ethic, and made rude, offensive and untrue statements about the Plaintiff’s character in general.”

Cindy Lewis’ conduct, Petitte alleges in her suit, was “deliberate, intentional, malicious, wanton and willful, and performed in reckless disregard to the Plaintiff’s feeling and well-being …”

Such conduct resulted in “loss of Plaintiff’s income from her job, future loss of income, difficulties in finding substantially similar employment in terms of wages and duties and problems with her licensing at the West Virginia Board of Medicine and the National Commission for Certification of Physican Assistants.”

Through her attorney W. Jesse Forbes of Charleston, Petitte is asking the court to “enjoin the Defendants from influencing and/or intimidating witnesses in this case” and “from any further retaliatory acts against the Plaintiff.” Also, Petitte asks to be awarded compensatory and punitive damages as set by a jury to include pre- and post-judgment interest, and attorney fees and costs.

As of press time, neither PVH nor the Lewis’ filed a reply to Petitte’s suit. PVH’s attorney, Eric Kinder, with the Charleston law firm of Spilman, Thomas and Battle, declined to comment on the suit.

Likewise, when contacted at her office, Cindy Lewis said she had no comment on the suit.

The suit has been assigned to Mason Circuit Judge David W. Nibert.

Mason Circuit Court case number: 07-C-110

POINT PLEASANT – A pending malpractice case against a former Mason County physician appears to be headed to trial without a requisite certificate of merit.

On May 16, Mason Circuit Judge Thomas C. Evans III entered a scheduling order in the case of Barcus v. Levine. A pre-trial conference is slated for Jan. 14, 2008, with trial set to commence two weeks later on Jan. 29.

Evans’ order comes as Levine’s legal counsel has raised no new objections to the case moving forward without a certificate of merit, and the state Supreme Court is set to hear a constitutional challenge to the 2003 law requiring such in malpractice cases.

Common law challenge to MPLA

In the case now in circuit court, Ralph A. Barcus, of Gallipolis, Ohio, alleges that Dr. Jack M. Levine failed to totally remove a catheter from his chest in May 2001 after originally inserting it in November 1999. The insertion and removal of the catheter, court records show, took place at Pleasant Valley Hospital, where Levine had staffing privileges until December 2001.

Sometime after the catheter’s removal, court records show Barcus began experiencing chest pains. Upon consulting with another physician in 2004, Barcus discovered that remnants of the catheter were left in his chest.

According to court records, Barcus underwent surgery at Ohio State University’s Medical Center in October to remove what was left of the catheter. Later that month, though his attorney Michael Eachus, of the Gallipolis law firm of Eachus and Finley, Barcus notified Levine, who since moved to Shelbyville, Illinois to practice medicine, and PVH, that he intended to bring a malpractice suit.

Barcus, court records show, did just that on Dec. 12.

Though he provided both Levine and PVH, who has since been dismissed from the suit, with a pre-suit notification, Barcus did not file an accompanying certificate of merit as required by the Medical and Professional Liability Act of 2003. In an effort to thwart frivolous claims, the MPLA requires anyone bringing a malpractice suit to obtain a written opinion from another physician that the suit has some merit.

However, in the original complaint he filed on Barcus’ behalf, Eachus maintains that the legal doctrine of res ipsa loquitur, or “the thing speaks for itself,” trumps MPLA. To buttress his point, Eachus cited the Court’s 1991 opinion in the case of Farley v. Meadows, M.D. in which it determined “When a surgical sponge or scalpel shows up in the chest of a veteran of open-heart surgery, the only inference that can be drawn is that the foreign object was left in the chest from surgery.”

In their reply dated Jan. 18, Levine’s legal counsel, Barry M. Taylor and Gary A. Matthews of the Huntington law firm of Jenkins Fenstermaker, denied any wrong-doing on Levine’s behalf. In addition to challenging the use res ipsa loquitur in the case, Taylor and Matthews said their client “asserts all the limitations, restrictions and requirements that are set forth in MPLA.”

Constitutional challenge to MPLA

Since filing their initial reply, Taylor and Matthews have not renewed their objection that the case move forward without a certificate of merit. In fact, they have participated in the process of discovery by submitting to Barcus a set of interrogatories in which, court records show, he replied on May 7.

When asked if submitting the interrogatories was acknowledgement the case was moving forward without a certificate of merit, Taylor declined to comment. Also, Eachus was not immediately available for comment on the case moving forward.

The timing of a possible trial in the case is rather fortuitous in that the case of Westmoreland v. Vaidya is pending before the Court. Though the Court has not decided if it will hear oral arguments in the case, both sides have submitted briefs in preparation for its Fall term which begins Sept. 10.

In the case, Dr. Danny R. Westmoreland, a Mason family physician, alleges that Kanawha Circuit Judge Tod J. Kaufman improperly dismissed his malpractice case against Dr. Shrikant K. Vaida, a Point Pleasant urologist. The Court appointed Kaufman to hear the case after both Evans, and fellow Mason Circuit Judge David W. Nibert recused themselves.

Though initially getting both Westmoreland, and Vaidya’s legal counsel Rob J. Aliff, of the Charleston law firm of Jackson Kelly, to agree to discuss a settlement during a status conference on Oct. 25, Kaufman dismissed the case a day later. In his order dated Oct. 26, Kaufman said the case was controlled by the MPLA “because of the specialized nature of the medical practice of urology.”

Much like Barcus, Westmoreland, who filed his case against Vaidya pro se, argued common law trumps statutory law. In his original complaint filed in June 2005, Westmoreland alleges Vaidya violated the “no means no” principle when he refused Westmoreland’s repeated requests to stop a cystoscopy Vaidya performed on him two years earlier.

Since then, Westmoreland retained Robert W. Bright with the Story Law Office in Pomeroy, Ohio. In his initial brief for appeal filed in March, Bright argued, among other things, that MPLA 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.”

On June 6, the Court unanimously agreed to hear Westmoreland’s petition for appeal.

POINT PLEASANT – Despite settling one lawsuit, the Mason County Board of Education has been named a defendant in another. Ironically, both suits arise from problems at the same Bend-area school.

According to court records, the Board settled a dispute with William and Jane Bird over alleged flooding construction to nearby New Haven Elementary caused to their home after a heavy rain in 2005. The board, along with co-defendant Mid-Atlantic Construction, which was the contractor for the project, reached an out-of-court settlement with the Birds on June 21.

However, no sooner than the Board reached its settlement with Birds than it was slapped with wrongful termination suit. In that case, Katherine Parrish, a former teacher at New Haven Elementary is appealing a decision by an administrative law judge upholding the Board’s decision to fire her for alleged mistreatment of special needs students.

Using a ‘sock’ for discipline

According to court records, Parrish, though her attorneys James M. Casey and Jeremy Vickers of the Casey Law Offices in Point Pleasant, filed her appeal with the circuit court on Aug. 8. Casey and Vickers ask Mason Circuit Judge David W. Nibert, who has been assigned the case, overturn the July 9 decision by Denise M. Spatafore, administrative law judge for the West Virginia Education and State Employees Grievance Board, upholding the Board’s decision to terminate Parrish.

In the synopsis of her opinion, Spatafore said Parrish was “terminated as the result of allegations that she had physically mistreated students in her special needs preschool classroom on several occasions.” Specifically, Parrish was accused of placing a “body sock” – a tube-like piece of fabric which is open on both ends – around two students on different occasions, and “pull[ed] the sock over the entire child while laying [sic] on a cot, tucking the ends under the cot so that the child was covered head to toe.”

In her findings of fact, Spatafore said the allegations arose from placing students, identified as C.F. and J.C., into the body socks in September and December 2006, respectively. Parrish, Spatafore found, also was alleged to have placed those and other students hard on the bleachers, and pulled them by the ankles toward her as a means of discipline.

After school administrators learned of injuries the children sustained, and an investigation was conducted by child protective services, Parrish, who had been employed as special needs teacher by Mason County Schools since 2000, was placed on unpaid leave on Dec. 19. According to Spatafore’s findings, school administrators in their Dec. 19 letter informed Parrish they would recommend the Board terminate her employment.

The Board did just that at its Jan. 18 meeting. Parrish, according to Spatafore’s ruling, did not attend the meeting.

Prior to her termination, Parrish initiated a grievance proceeding against the Board. Though Wendy Campbell heard the case at Level IV on April 10, it was transferred to Spatafore upon Campbell’s retirement.

In her ruling, Spatafore “found that the evidence establishes that Grievant’s conduct constituted willful neglect of duty.” In testimony provided by not only other special education teachers, but also Parrish herself, “that the body sock’s purpose is to comfort and calm and [sic] child who has sensory issues” and “no one ever used a body sock in this manner.”

In a footnote to her ruling, Spatafore said she felt “compelled” to make not of her personal inspection and observation of the body sock and cot.

“[I]f a child were placed inside the sock with the ends tucked under the cot,” Spatafore said, “the fit would be extremely tight and to be confined under it would clearly be terribly unpleasant, if not frightening (especially for a young child).”

Those personal observations are part of Parrish’s appeal to circuit court. In addition to saying that Spatafore’s findings “are contrary to the law and the lawfully adopted rules and written policy of the employer,” Casey and Vickers argue her findings are “arbitrary, capricious and characterized by abuse of discretion and clearly unwarranted exercise of discretion.”

Invoking God’s name

In reaching a settlement with the Birds, the Board was absolved of any responsibility. According to William Bird, he and his wife agreed to accept and undisclosed sum of money from MAC.

However, though he lauds his attorney Bart Ketchum, with the Huntington law firm of Greene, Ketchum, Bailey and Tweel, for the work he did, Bird says he was done wrong by the legal system.

“We were satisfied with our lawyer, but we don’t feel like we got what we were due,” Bird said. “What damages were done could have been taken care of right away.”

Also, Bird added that though MAC accepted responsibility for the flooding of the Bird’s basement, they were merely acting on the Board’s instructions.

“From the beginning,” Bird said, “the contractor did what the Board told them to do.”

In their suit filed in January 2006, the Birds allege that a heavy rainfall on July 18, 2005 flooded the basement of their home. The flooding, they allege, was direct result of excavation done on the back side of New Haven Elementary as part of the project to consolidate it, and Mason Elementary.

The Bird’s estimated they sustained about $55,000 in damages to their home as a result of the flooding.

Initial attempts to reach a settlement appeared likely. According to Bird, the Board sent a representative to his home to inspect the damage.

His conclusion led him to believe the Board would take care of it, Bird said.

However, Bird later received a letter from the Board saying the responsibility for the flooding was MACs fault. In both its initial correspondence, and reply to the lawsuit, MAC maintained the flooding was “an act of God.”

In an earlier interview with The Record, Bird wryly replied, “God may have made it raid, but God didn’t do the digging, but God will see I’m compensated.”

Personal injury suit still pending

In addition to Parrish’s, a suit filed by Charles and Mitzi Spangler against the Board is still pending. Like the Birds, the Spanglers filed their suit last year.

In their suit, the Spanglers allege that Mitzi sustained injuries on Dec. 14, 2004 when waiting to see Larry E. Parsons, superintendent of Mason County Schools, she was led into a darkened room by a Board employee, and fell as a result of an uneven floor. Parsons, and Board President Michael “Micky” Cottrill are named as co-defendants in the suit.

According to court records, the last filing in the case, as of press time, is a request for discovery submitted by the Board on October 6.
Neither Cottrill nor Parsons returned repeated telephone calls seeking comment on the suits.

Mason County Circuit Court case no. 07-AA-119 (Parrish)

Vaidya

POINT PLESANT – In addition to the case now on appeal before the state Supreme Court, a Point Pleasant urologist is defending himself against in a second malpractice suit, one which has been dormant for seven years.

In the midst of preparing arguments on why the Court should reverse a lower court’s decision to dismiss Dr. Danny R. Westmoreland’s malpractice case against Dr. Shrikant K. Vaidya, Robert W. Bright, with the Story Law Offices in Pomeroy, Ohio, is now counsel of record for Frank Eugene Meadows of Henderson in his case against Vaidya.

According to court records, Bright filed a notice of appearance on June 14.

Meadows initially filed suit against Vaidya on July 19, 2000. In his suit, court records show Meadows alleged Vaidya failed to properly treat him for a case of Peyronie’s Disease, a build-up of plaque in the penis which makes an erection painful, and sex often difficult or impossible.

However, his suit became dormant when his then-attorney, David W. Nibert was elected circuit judge later that year. In a previous interview with the Record, Meadows said though he found at least one attorney who would be willing to takeover his case, no doctor with whom he consulted wanted to serve as an expert witness for fear of being sued.

In the interim, Westmoreland brought his suit against Vaidya for malpractice on June 10, 2005. In his suit, which he initially filed pro se, Westmoreland alleged a cystoscopy Vaidya performed on him on two years earlier for the removal of a stent in his urterer, led to him developing Peyronie’s Disease, and renal failure. Westmoreland later retained Bright to appeal Kanawha Circuit Judge Tod J. Kaufman’s Oct. 26 order dismissing the case.

Kaufman was appointed by the Supreme Court to hear Westmoreland’s case when both Nibert and Judge Thomas C. Evans III recused themselves. Meadows’ case was originally assigned to Evans, who was re-elected to the bench in 2000.

Since accepting Meadows’ case, court records show that Bright served Vaidya with a renewed complaint on July 18 via U.S. Mail. Though he signed for the letter on July 28, neither he nor anyone from his legal team has replied to the suit.

Representing him in the Westmoreland case is Rob J. Aliff, Thomas J. Hurney and Amber L. Hoback with the Charleston law firm of Jackson Kelly.

Court records show that Vaidya failed to answer Meadows’ compliant when he first filed it seven years ago. Part of Westmoreland’s argument for remanding his case back to the circuit court for trial is that no ruling was made for 18 months on his motion for default judgment when Vaidya filed to reply to his complaint.

Mason Circuit Court case 00-C-132 (Meadows)

Attorney Frank Armada’s office in Teays Valley.

CHARLESTON – A Leon woman is not the only person who has issues with the way her attorney kept her informed about the status of her medical malpractice case.

Records show the West Virginia State Bar Association cited a Teays Valley attorney multiple times for the lack of diligence in which he handled his clients’ cases, including three that involved medical malpractice.

Recently, The West Virginia Record reported on the malpractice case Urata A. Singleton filed against former Mason County physician Dr. Jack M. Levine in October 2001. In her suit, Singleton alleged Levine, who left Point Pleasant shortly after the suit to practice medicine in Shelbyville, Ill., permanently damaged her left foot when removing a Ganglion cyst in April 2000.

The suit, which named Pleasant Valley Hospital as a co-defendant, remained active for almost 2½ years. On March 29, 2004, the day before the case was slated for trial, court records show Singleton’s attorney Frank Armada, made a motion to dismiss the case against Levine.

Court records indicate that Armada’s motion was based on his inability to use a “confidential and privileged document” he obtained from PVH. Mason Circuit Judge Thomas C. Evans III ordered portions of the case file containing the document sealed.

Also on March 29, Levine’s attorneys Barry M. Taylor and Max Corley III with the Huntington law firm of Jenkins Fenstermaker, made a motion that Armada return the document. Though Evans denied the motion, records show he barred Armada or Singleton from disclosing or discussing it, and ordered the case closed on May 3, 2004.

Up until March 2004, Singleton says Armada did a good job of keeping her informed on the status of her case. According to Singleton, about the time he made the motion to dismiss the case against Levine, Armada called her and said Evans wasn’t going to hear the case against Levine, but the case against PVH was “hanging by a thin thread.”

However, Singleton said she later learned second-hand that that Evans closed out the case against Levine and PVH. To date, she says she has not spoken with Armada, and his office has not returned repeated telephone calls she has left for him.

Singleton’s case is not the only one where a breakdown in communications has occurred between Armada and his clients. According to records on file with the Office of Disciplinary Counsel, the Bar’s investigative arm, eight complaints have been filed against him between 1985 and 2003.

Though all eight cases against him were closed without bringing a formal statement of charges, records show the ODC in six of the cases “warned,” “cautioned” or admonished Armada for either not diligently handling cases or effectively communicating with his clients. Like Singleton, three cases involved medical malpractice.

Lack of diligence

The complaints in those cases were lodged between 1993 and 1996. In the latter two, ODC issued Armada a mild rebuke for the way the handled them.

In her complaint filed June 6, 1996, Claudia R. Young of St. Albans alleged that Armada, despite filing a suit on her behalf, failed to keep her informed of any actions for the next two years and two months. Also, she alleged that after she retained new counsel, Armada delayed transferring her case for three weeks.

The records in her case, Young alleged, “were scrambled, [and] copies were not legible.”

In his reply, Armada said his initial discovery in the case led him to conclude, “pursing the case would be fruitless.” Records show Armada’s discovery included deposing the doctor, and hiring a document examiner to review his notes “to determine if they had been altered or rewritten.”

After informing Young of his conclusions, he cancelled a scheduled hearing and pre-trial conference. However, records show four days later Young called Armada back and decided she wanted to pursue the case.

Though no dates are provided, Armada filed a motion to withdraw as counsel from the case after Young decided to move forward with the case.

Again, with no dates provided, records show, a hearing was held to rule on Armada’s motion to withdraw, and a motion made by opposing counsel to enforce the previous agreement for dismissal, and summary judgment. After the hearing, Armada telephoned Young to inform her the judge granted both his motion to withdraw, and the motion for summary judgment, based partly on her failure to appear at the hearing.

“However, due to an error in Respondent’s [Armada's] office, the Complainant was never served with a copy of the notice and motion of the hearing,” records say.

Because of the error, Young made a motion for the Court to reconsider its ruling dismissing the case. Provided she could find new counsel within 10 days of its order, the Court granted Young’s motion.

Young’s new counsel, records show, “did timely file a Notice of Appearance.”

In closing its case against him on Jan. 9, 1997, ODC noted that Armada “had been neighbors with the Complainant’s son for more than fifteen years and he believed they shared more than an attorney-client relationship.”

“Because of his ongoing relationship with Complainant’s family,” ODC added, “Respondent may have been less formal in documenting the case with his client.”

In concluding its findings, ODC said “While it is clear that Respondent took the necessary steps to protect the Complainant’s interest, the Investigative Panel cautions Respondent to communicate clearly and carefully with his clients to ensure that the client’s intentions and expectations are met.”

About two years prior to Young, Richard L. Dillon Jr. of MacClenny, Florida lodged his complaint against Armada. According to his complaint filed May 31, 1994, Dillon alleges he paid Armada and Richard Allen $400 in 1984 to represent him in a malpractice claim.

Though he does not say when, Dillon maintains that Allen dismissed himself from the case after taking a job with the state of West Virginia. Since filing his suit, Dillon alleges he attended only one deposition hearing, and received one offer to settle the case for $1,000.

Though no date was provided, Dillon said in his complaint that he “got a letter from Mr. Armada asking me what to do about a motion to dismiss because ‘we’ had failed to produce an expert witness.”

Despite his attempts to contact him about the motion, Dillon alleged that Armada failed to return his repeated telephone calls.

On Sept. 10, 1994, ODC closed its case against Armada. In its findings, ODC noted that Armada “admits to a certain amount of lack of diligence” in pursing Dillon’s case. Because his conduct “appears to be an isolated instance,” ODC “warned” Armada “to avoid such delays in the future.”

Failure to depose

However, a complaint filed 15 months prior to Dillon’s shows that Armada’s conduct was not so isolated. In this instance, he was formally admonished for neglecting to diligently handle a malpractice suit.

According to her complaint filed Feb. 2, 1993, Eva Griffith Mullins of Ozark, Alabama says she sought to bring a malpractice claim against the Richwood Area Medical Center in Nicholas County. In both her complaint and lawsuit, Mullins alleges her husband, Lyman E. Griffith, on Jan. 26, 1989 died as a result of being denied medical treatment from the hospital’s staff.

In her complaint, Mullins initially consulted with Steve Thompson about handling her case. After listening to her case, Mullins says he referred her to his partner, J. David Cecil.

Eventually, Cecil, who now works for the law offices of James Humphreys, suggested that Armada handle the case since he “was an expert in malpractice cases and had more experiences that [sic] anyone in their firm.”

According to her complaint, Armada agreed the case was worth pursing, and took it on a contingency fee basis. Records show that Cecil served with Armada as co-counsel in the case.

Despite assurances he gave to Mullins in Feb. and May 1990, Armada did not file the suit until Jan. 11, 1991. The reason he was unable to file the suit in February and May 1990 as promised, records show, was because of other pending matters, and a heart attack and quadruple by-pass surgery, respectively.

After filing the suit, Armada learned the hospital filed for Chapter 11 bankruptcy in September 1990. Records show Armada did make a concerted effort to reach an agreement with its attorney to have the automatic stay in the bankruptcy proceedings lifted so he could proceed with discovery.

Eventually, records show the stay was lifted on March 11, 1993. In the process of discovery, Armada learned from the hospital’s legal counsel that it had no malpractice insurance, and was wholly owned by Dr. Nunzio Pagano, who served as both CEO and chief of staff.

After learning that piece of information, Armada “attempt[ed] to schedule a deposition in order to obtain Dr. Pagano’s statement under oath relative to whether he had malpractice insurance and to explore the possibility of other available sources to satisfy potential judgment.”

However, records show in April 1994, Armada was involved in a car accident and underwent a craniotomy. He did not return to work until September 1994.

When ODC contacted him in May 1995 about the status of the case, Armada informed them he was still attempting to take Pagono’s deposition. However, records show Armada stated to ODC he had made no attempts since March 1993 to subpoena Pagono to appear for a deposition.

Because he did not file the suit in “an expeditious manner as he had agreed to,” and his failure to depose Pagono two years after the lifting of the bankruptcy stay, Armada was “admonished for neglecting the suit and is cautioned to timely proceed with all future cases.” ODC’s admonishment came on June 10, 1995 when it closed the case against him.

Despite closing the case, ODC warned Armada it “reserves the right to reopen this matter for further consideration should Respondent continue to neglect Complainant’s malpractice case.”

A mysterious end

Two days after ODC ordered Mullins’ complaint closed, Armada filed a notice to take deposition from Pogono with the Court. However, according to the circuit clerk’s office, that was the last action recorded in the case.

Though no final order was entered, records show Nicholas Circuit Judge Gary Johnson dismissed the case on July 29, 1993, due to inactivity. Despite Armada filing a motion on Aug. 12, 1993, to reinstate the case, Johnson never ruled on it.

As of press time, Armada was not immediately available for comment.

This spot along the Staff Sergeant Jimmy G. Stewart Highway near Mason is where Point Pleasant attorney and West Virginia Association for Justice lobbyist James M. Casey was involved in an automobile accident with Herbert O. Hoover in 2005. Recently, Casey filed a lawsuit against Hoover’s estate and the Mason Smoke Shak, where Hoover was leaving, alleging they contributed to “permanent injuries and damages” he sustained from the collision. (Photo by Lawrence Smith)

POINT PLEASANT – A Point Pleasant attorney and lobbyist for the state trial lawyer’s association is suing a Bend-area convenience store for contributing to the climate of a 2005 motor vehicle accident which left him with “permanent injuries and damages.”

On Aug. 27, James M. Casey filed suit in Mason Circuit Court against the estate of Herbert O. Hoover and Claytongage Inc. The latter, according to court records, is the parent company of Smoke Time Sam’s, a discount tobacco retailer, with a store in Mason called the Mason Smoke Shak.

In his complaint and suit, Casey alleges that two years earlier he was involved in an automobile accident with Hoover on the Staff Sergeant Jimmy G. Stewart Highway in front of the store. Despite Hoover being responsible for the collision, Casey maintains that the Mason Smoke Shak bears part of the blame due to the “unsafe layout and design of the tobacco store premises.”

‘Carelessness and recklessness’

According to court records, Casey was traveling in the Highway’s southbound lane driving a 2002 Lincoln LS on Aug. 28, 2005. About 12:03 p.m. he collided with a 2002 Chevrolet S-10 pickup truck driven by Hoover in the unincorporated town of Clifton, just outside the town of Mason’s corporate limits.

The collision occurred, records show, when Hoover attempted to exit the Mason Smoke Shak’s parking lot, and make a left turn into the Highway’s northbound lane.

“The decedent, Herbert O. Hoover, negligently, carelessly and recklessly failed to yield to oncoming traffic and pulled his automobile into the path of the vehicle being driven by the Plaintiff, James M. Casey,” Casey says in his suit.

“The decedent, Herbert O. Hoover,” Casey added, “negligently, carelessly, recklessly, and/or in violation of the law failed to yield the right of way, failed to keep a proper lookout, failed to apply the brakes properly, failed to keep the vehicle under proper control, and further failed to operate the vehicle in a safe manner under the conditions then and there existing, all of which proximately caused a collision between the above mentioned vehicles.”

Because of Hoover’s “negligence, carelessness, recklessness and/or violation of law,” Casey alleges he has suffered “permanent injuries and damages to his bones ligaments, tendons, muscles nerves and other tissue in his neck, shoulder and back.” These injuries, Casey alleges, have lasting consequences.

“As a result of the said injuries and the consequences therefrom, Plaintiff, James M. Casey will require until the end of his life, medical and hospital care, attention and treatment,” Casey says in his suit.

“Plaintiff has suffered physical pain, discomfort, mental anguish and nervous and emotional damage and disorder and the inability to enjoy the normal pursuits of life, including recreational endeavors,” he added.

Since Hoover’s estate is named as party in the suit, it is not clear if he died as a result of the collision, or at a later time. However, Casey says through Hoover’s insurance carrier, he has “resolved all claims” against Hoover’s estate, and brings the suit against it “in name only” for the purpose of possibly being awarded judgment “in an amount to be specified later.”

‘Imminent peril’

Hoover is not alone in being responsible for Casey’s injuries. In his suit, Casey alleges that the Mason Smoke Shak, where Hoover was leaving, bears an equal, if not larger part, of the blame.

“Due to the hazardous conditions in the layout, design, limitation of space and congestion in parking area, proximity to the edge of the roadway, and obstruction of view in the parking area of Smoke Time Sam’s and Mason Smoke Shak, the Plaintiff, James M. Casey was injured as a proximate result of the negligence, carelessness and recklessness of the Defendant, Claytongage, Inc. d/b/a Smoke Time Sam’s and Mason Smoke Shak.

In his suit, Casey alleges both he and the general public were placed “in imminent peril” by the Mason Smoke Shak’s location. According to Casey, “[t]he Defendant … was negligent, careless and reckless in failing to layout and design the tobacco store premises in such a way as to avoid hazardous conditions and placing oncoming motorists in imminent peril, in failing to adequately supervise the premises, in failing to maintain control of the premises, in failing to have an unobstructed view of the highway from parking congestion, plans, design or maintenance, and further in failing to warn of the hazards thereof.”

Because of this, Casey alleges the Mason Smoke Shak contributed to the injuries he sustained from the collision with Hoover. The injuries, and subsequent medical treatment, Casey maintains has led him to lose “profits, income and wages as a result of being unable to work.”

In addition to Hoover’s Estate and Claytongage, Inc., Casey named his insurance carrier, American Select Insurance Company d/b/a Westfield Insurance, in the suit under provisions of state law dealing with underinsured motorist coverage.

Case filed after removal as city attorney

Though Casey’s suit was filed within the two year statute of limitations from the time the incident occurred, it also comes two months after he was replaced as Point Pleasant’s city attorney.

When Mayor Marilyn M. McDaniel and the Republican-dominated city council took office July 1, they voted to replace Casey, a Democrat, with Ronald F. Stein Jr.

Records show in fiscal year 2006-07 that Casey was paid $14,423 for his services as city attorney.

Also, Casey has been a long-time lobbyist for the West Virginia Association for Justice, which formerly was known as the West Virginia Trial Lawyers Association.

In both the legislative sessions following his accident, Casey actively represented WVAJ in Charleston.

Attempts to reach Casey for a comment were unsuccessful as of presstime Thursday. Likewise, Amy M. Smith, one of Claytongage Inc.’s corporate officers in Parkersburg that Casey named in his service of process notice, was unavailable for comment.

The case has been assigned to Mason Circuit Judge David W. Nibert.

Mason Circuit Court Case No. 07-C-131

Vaidya

POINT PLEASANT – A perusal of the court file would reveal to anyone why it took a Henderson couple seven years to serve notice of a malpractice suit against a Point Pleasant urologist, says their attorney.

On Aug. 13, Rob J. Aliff and Laurie K. Miller, attorneys for Dr. Shrikant K. Vaidya, filed a motion to dismiss the civil suit Frank Eugene and Virginia Meadows filed against him on July 19, 2000.

Because Vaidya was not served with notice of the suit until seven years later on July 18, 2007, Bright and Miller, with the Charleston law firm of Jackson Kelly, say this goes well beyond the time frame allotted for effecting service of process.

“Rule 4(k) of the West Virginia Rules of Civil Procedure requires that service of process of a summons and civil complaint be made within 120 days after the filing of complaint,” Miller and Bright say in their motion. “Although Rule 4(k) permits a court to extend the time for service of process for an appropriate period if a plaintiff shows good cause for failure to serve within 120 days, the Plaintiffs have not made any effort to show any good cause for their failure to serve under Rule 4(k) – nor can they.”

“It has been seven years since this Complaint has been filed,” Miller and Bright add. “Further, there can be no argument that an extension of time of seven years to serve would be an appropriate time for service of this lawsuit.”

However, the Meadows’ attorney, Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, says the argument can be made that the suit should go forward despite taking seven years to serve notice. In his response filed Sep. 10 to Miller’s and Aliff’s motion, Bright says it took them that long to find substitute counsel.

“As the Court is undoubtedly aware, Plaintiffs’ initial Counsel was David Nibert, Esq.,” said Bright. “However, to Plaintiffs’ present Counsel’s understanding, Attorney Nibert was elected Circuit Court Judge very near the time of the filing of Complaint.”

“The case was then transferred to Judge [Thomas] Evans and it was Plaintiffs’ understanding that Judge Evans had issued an Order stating that this case could remain open until Plaintiffs obtained Counsel,” Bright added.

According to court records, Bright filed notice of substitution on June 14.

Also, Bright says that at anytime during the last seven years Vaidya could have made a motion to dismiss, or the Court could have ordered the case struck from the docket due to inactivity. Yet, neither was done.

“At no time since the filing of the complaint and prior to service of the same did the Defendant file a Motion to Dismiss,” Bright said. “At no time during since the filing of the Complaint has the Court given notice to the Plaintiffs that the Complaint was going to be dismissed.”

Turning the tables

Furthermore, Bright says it his clients, and not Vaidya, who are inconvenienced by a seven-year delay in moving forward with the suit.

“The Defendant is not prejudiced by the delay in service of the Complaint as the facts and underlying claims are identical and have not changed since the filing of the Complaint,” Bright said. “If anything, the Plaintiffs are the ones prejudiced by the delays for the last seven years the Plaintiffs have suffered from the damage caused by the Defendant and the Plaintiffs have received no compensation.”

According to court records, the Meadows’ filed their malpractice claim against Vaidya alleging he failed to properly treat Frank in 1998 for a case of Peyronie’s Disease, a build-up of plaque in the penis which makes an erection painful, and sex difficult or impossible. Virginia was listed as a co-plaintiff in the case due to her being “deprived of consortium” with Frank.

In a prior interview with The West Virginia Record, Frank said he was successful in finding an attorney who would agree to take his case. However, Meadows said it was conditional on him finding an another physician who would testify as an expert witness on his behalf.

According to Meadows, virtually every physician with whom he spoke declined to serve as expert for fear of being sued by Vaidya. Though one in Morgantown expressed a willingness to do so, Meadows said he could not reach a conclusion due to the vagueness of Vaidya’s notes.

Awaiting word on decisions

The Meadows’ case is the second malpractice suit pending against Vaidya. The other involving Dr. Danny R. Westmoreland, a Mason family physician, is currently on appeal to the Supreme Court.

In that case, in which Bright also serves as plaintiff’s counsel, Westmoreland alleges he developed a case of Peyronie’s Disease when Vaidya removed a stent from his urterer in 2003.

Kanawha Circuit Judge Tod J. Kaufman, who was appointed to hear Westmoreland’s case after Nibert and Evans recused themselves, dismissed it last year citing Westmoreland’s failure to obtain a certificate of merit as required by the Medical and Professional Liability Act of 2003.

In his appeal, Westmoreland argues, among other things, the MPLA is unconstitutional because it creates an undue burden on plaintiffs.

Much like Meadows, Westmoreland maintains urologists with whom he consulted were reluctant to go on record to say malpractice may have occurred. Those who did, Westmoreland avers, would do so only for a fee of $40,000.

Though both Bright and Vaidya’s legal team of Aliff, Thomas J. Hurney and Amber Hoback, have filed their respective legal briefs, the Court has not ruled on the appeal, or given any indication if it desires to hear oral arguments in the case. Likewise, Evans has not ruled, or scheduled a hearing on Miller’s and Aliff’s motion to dismiss the Meadows’ suit.

Mason Circuit Court Case No. 00-C-132

CHARLESTON – After first following the advice of Horace Greeley by going west -– to Illinois -– a former Mason County physician has heeded the call of Chrissie Hynde in going back to Ohio. Both moves, records show, preceded him being named in civil suits.

Last week, the Shelbyville (Ill.) Daily Union reported that Dr. Jack M. Levine was named as a respondent in discovery in a lawsuit filed by Penny Shasteen. In her suit, Shasteen alleges that Levine, Shelby Memorial Hospital, the Shelby Area Ambulance Service and Dr. Arnold V. Agapito were in some way negligent in the death of her mother, Dona Ogilvie.

Shasteen’s suit alleges that SMH, SAAS and Agapito are the most culpable. By naming Levine as a respondent in discovery means he is not a defendant, but one with essential information on who could be named as a defendant at a later date.

However, in Illinois a respondent in discovery must answer all discovery requests as any named defendant.

Though named in the Illinois suit, Levine is no longer practicing medicine there. The West Virginia Record has learned that Levine, who also has a pending suit against him in West Virginia, has since relocated to a small community hospital in southeast Ohio not far from where his medical career, and legal troubles, began.

Setting up shop in Waverly

According to the article, Shasteen alleges her mother died in her home on Nov. 10, 2005 following a colonoscopy Levine performed on her Oct. 25, 2005 at SMH. Though Levine performed the surgery, Shasteen alleges that Agapito is the most culpable because he scheduled her for the colonoscopy, rather than gall bladder surgery, and was slow to notify Levine of her post-operative pain.

In addition to alleging Agapito, as an agent and employee of SMH, negligent for not properly prepping Oglivie for surgery, and having the proper staff on-hand to handle possible post-operative complications, Shasteen maintains Agapito and SMH “negligently and carelessly delayed the ambulance from leaving SMH for more than an hour after it arrived…upon the determination that repair of the perforated colon could not be made at SMH.”

Likewise, the article says Shasteen holds SAAS accountable for failing “to deliver (Ogilvie) to the appropriate facility after arriving at Decatur Memorial Hospital.”

As a respondent in discovery, Shasteen is not alleging any negligence on Levine’s behalf at this point. According to the article, however, she is asking he provide, among other things, information on why a colonoscopy was ordered when X-ray films showed gall stones, why he perforated Ogilvie’s colon and why he failed to perceive that he perforated the bowel during the colonoscopy.

Though it is not clear if there is any causation, but the article says that SMH “terminated his employment with the hospital in early 2007.”

Sometime thereafter, Levine started work at Pike Community Hospital in Waverly, Ohio. The county seat of Pike County, Waverly is located 15 miles south of Chillicothe, and 40 miles north of Portsmouth.

According to its Web site, Levine practices general medicine at PCH. The contact information provided is that of the hospital.

However, Levine has failed to inform the Ohio Board of Medicine of his relocation. According to its Website, he is listed as having a valid license to practice medicine in Ohio, but says he’s living in Shelbyville, the county seat of Shelby County, and located about 50 miles east of Springfield.

So to does the Web site for the West Virginia Board of Osteopathic Medicine. In fact, it specifically lists his address as 207 S. Pine St., Shelbyville, Ill., the address for SMH where he’s no longer employed.

After graduating from the New York College of Osteopathic Medicine in 1983, Levine, 51, was granted his West Virginia license on July 20, 1988 and Ohio license on April 14, 1989. According to the Illinois Division of Professional Regulation’s Web site, Levine was issued a license to practice medicine in Illinois on Oct. 25, 2001.
However, it lists his address in Waverly. All three of his licenses are set to expire in mid-2008.

Down the road before

Leaving the state in the midst of a lawsuit is nothing new to Levine. Prior to relocating to Ohio before being named in Shasteen’s suit, records show Levine departed West Virginia for Illinois while leaving behind at least one then-pending suit, and the seeds of another.

Three weeks prior to receiving his Illinois license, Urata M. Singleton brought suit against Levine in Mason Circuit Court on Oct. 4, 2001. In her suit, Singleton alleged Levine failed to properly remove a Ganglion cyst from her left foot on April 7, 2000.

According to court records, the case was slated for trial on March 30, 2004. However, Singleton’s attorney, Frank M. Armada, made a motion to dismiss the case after Mason Circuit Judge Thomas C. Evans III ruled he could not use a “confidential and privileged document” in the case. Though he denied a motion by Levine’s attorneys to order Armada to return the document, Evans did instruct Armada not to disclose or discuss it, and dismissed the case on May 3, 2004.

About five months prior to Singleton filing her suit against him, Levine removed a catheter from the chest of Ralph A. Barcus of Gallipolis, Ohio. According to court records, Levine first inserted the catheter into Barcus in November 1999.

Subsequent to removal of the catheter, Barcus began experiencing chest pains. An X-ray of his chest, records show, reveled the remnants of the catheter.

It was not until Oct. 2006 when the last of the catheter, a holding disc, was removed from Barcus’ chest. On Dec. 4, Barcus filed suit against Levine, and Pleasant Valley Hospital.

Though PVH was later voluntarily dismissed from the suit, it is still pending against Levine. Court records show it is slated for trial on Jan. 29, 2008 before Evans.

Prior to Singleton and Barcus, Levine was sued three other times for malpractice starting in 1994. All of those cases were either dismissed, or settled out-of-court.

CHARLESTON – In addition to the one pending against him in West Virginia, a former Mason County physician is now defending himself in a civil suit in Illinois.

According to the Shelbyville (Ill.) Daily Union, Dr. Jack M. Levine is named as one of four defendants in wrongful death lawsuit in Shelby Circuit Court. Along with Levine, the suit names Shelby Memorial Hospital, Shelby Area Ambulance Service and Dr. Arnold V. Agapito.

According to the article, Peggy Shasteen filed the suit in her capacity as special administrix of the estate of her late mother, Dona Ogilvie. Shasteen alleges that SMH, SAAS, Agapito and Levine were all some way negligent in her mother’s death.

With the exception of Levine, Shasteen is seeking $300,000 in damages from the defendants. The reason she is not seeking a monetary award from Levine, the article states, is because he has only been named as a respondent in discovery.

In Illinois, a respondent in discovery is someone who must reply to all discovery requests in the same manner as a defendant. Also, a respondent in discovery is one who the plaintiff believes to have information essential to the determination of defendants who could be named at a later date.

Suit alleges death followed surgery

According to the article, Shasteen alleges her mother died in her home on Nov. 10, 2005 following a colonoscopy Levine performed on her Oct. 25, 2005 at SMH. Though Levine performed the surgery, Shasteen alleges that Agapito is the most culpable because he scheduled her for the colonoscopy, rather than gall bladder surgery, and was slow to notify Levine of her post-operative pain.

In her suit, the article states, Shasteen alleges Agapito, as an agent and employee of SMH, among other things, failed to properly prep the bowl before surgery, inform Levine that the bowl was not prepped, failed to discern the bowl was not completely free of fecal material prior to surgery and failed to have the proper medical staff on-hand who could deal with post-surgery complications.

Though the article is not exactly clear, it appears that Ogilvie was transported to Decatur Memorial Hospital following her surgery.

Nevertheless, Shasteen alleges Agapito and SMH “negligently and carelessly delayed the ambulance from leaving SMH for more than an hour after it arrived…upon the determination that repair of the perforated colon could not be made at SMH.”

SAAS’ negligence comes into play, Shasteen alleges, when they “failed and omitted to deliver (Ogilvie) to the appropriate facility after arriving at Decatur Memorial Hospital.” It is not clear as to what, if anything, happened to Ogilvie at DMH, and why and when she was released.

As a respondent in discovery, Shasteen is not alleging any negligence on Levine’s behalf at this point. According to the article, however, she is asking he provide, among other things, information on why a colonoscopy was ordered when X-ray films showed gall stones, why he perforated Ogilvie’s colon and why he failed to perceive that he perforated the bowel during the colonoscopy.

W.Va. case slated for trial in January

As he prepares to answer those questions, Levine is currently answering questions in the malpractice suit in which he is named as a defendant in Mason Circuit Court. That case, according to court records, is slated for trial on Jan. 29, 2008.

In the suit, Ralph A. Barcus of Gallipolis, Ohio alleges Levine inserted a catheter into his chest in November 1999. Levine later removed the catheter in May 2001.

However, Barcus alleges that Levine failed to remove the entire catheter. According to his suit, another physician in 2004 discovered that an object near Barcus’ mid-left lung was a holding disc left from the catheter.

It was not until two years later that the disc was removed, records show.

In his suit filed Dec. 4, 2006, with the assistance of Michael Eachus, with the Gallipolis law firm of Eachus and Finley, Barcus named Levine at Pleasant Valley Hospital in Point Pleasant as defendants. PVH would later be dismissed as a defendant in March since it was determined Levine was not an agent of the hospital, but instead had “staffing privileges” there from 1988 to 2001.

Records show Levine’s attorneys Gary A. Matthews Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, replied to Barcus’ suit on Jan. 18 denying any wrong-doing on Levine’s behalf.

Also, they challenged the fact that Barcus did not accompany the suit with a certificate of merit as required by the Medical and Professional Liability Act of 2003.

Because Levine’s negligence was so gross, Eachus maintains, one is not needed. The case should proceed under the principle of res ipsa loquitur, or “the thing speaks for itself.”

On May 16, Mason Circuit Judge Thomas C. Evans III set a scheduling order in the case. Records show Matthews and Taylor have voiced no new objections to the case against Levine moving forward without a certificate of merit.

Shelby, Illinois Circuit Court, Case No. 2007L27
Mason Circuit Court, Case No. 06-C-173

Delores Clonch shows a diagram of how the doctor would remove a portion of and later reattach her colon. (Photo by Lawrence J. Smith)

CHARLESTON – The allegations leveled against a former Mason County doctor in an Illinois wrongful death suit bears a resemblance to the allegations a Gallipolis, Ohio, woman leveled against him in a 2000 malpractice suit.

The allegations in the latter suit were only recently made public because a judge ordered the case sealed due to the nature of “scandalous allegations” raised in it.

Last month, The West Virginia Record reported that Dr. Jack M. Levine was named as a party in a wrongful death suit filed by Penny Shasteen of Shelbyville, Ill. According to the Shelbyville Daily Union, which first reported the story in its Nov. 7 edition, Shasteen alleges that Levine along with Shelby Memorial Hospital, the Shelby Area Ambulance Service and Dr. Arnold V. Agapito, were all in some way responsible for the death of her mother, Dona Ogilvie, on Nov. 10, 2005.

According to her suit filed as the special administrix of her mother’s estate, Shasteen alleges Ogilvie suffered complications from a colonoscopy Levine performed on her on Oct. 25, 2005. Though Levine performed the surgery, Shasteen alleges Agapito is the most culpable because he scheduled her for the colonoscopy, rather than gall bladder surgery, and was slow to notify Levine of her post-operative pain.

In addition to that, Shasteen alleges Agapito, as an agent of SMH, “negligently and carelessly delayed the ambulance from leaving SMH for more than an hour after it arrived…upon the determination that repair of the perforated colon could not be made at SMH.”

Likewise, SAAS failed “to deliver (Ogilvie) to the appropriate facility after arriving at Decatur Memorial Hospital.”

It is not clear as to what, if anything, happened to Ogilvie at DMH, and why and when she was released.

At this point, Levine is named only as a respondent in discovery.

In Illinois, a respondent in discovery is one who the plaintiff believes to have information essential to the determination of defendants who could be named at later date.

Also, a respondent in discovery must reply to all discovery requests in the same manner as a defendant. According to the article, Shasteen is asking for Levine to provide, among other things, information on why a colonoscopy was ordered when X-ray films showed gallstones, why he perforated Ogilvie’s colon and why he failed to perceive that he perforated the bowel during the colonoscopy.

Shasteen’s suit is not the first time someone has alleged that Levine possibly erred in perforating a bowel during surgery.

Delores Clonch made a similar allegation in the malpractice suit she filed against Levine.

However, before discovery could be conducted, the suit was ordered sealed due to unsubstantiated allegations of substance abuse on Levine’s behalf that Clonch says she related to her attorney in order for him to further investigate, and not make in her initial complaint.

Lacerated colon

In an interview The Recordconducted with Clonch in July, she maintains that in early 1998 she consulted her family physician, Dr. Robert Holley, about abdominal pain and vomiting. After conducting an ultrasound, Holley told Clonch her gall bladder was “dead,” and needed to be removed soon.

Holley, Clonch said, recommended Levine to conduct the surgery.

About a week after the surgery, which was conducted at Pleasant Valley Hospital in Point Pleasant, Clonch said she began feeling sick again. For almost the next year, Clonch consulted with Levine on the continual drop in her blood count.

All Levine would do, Clonch says, was prescribe medication.

Eventually, in desperation, Clonch asked that Levine readmit her to the hospital. According to Clonch, he referred her back to Holley, who in turn admitted her to Holzer Medical Center in Gallipolis.

The admitting staff at Holzer was amazed that Clonch was able to function. She remembers them telling her that her blood count was so low, that she should have been in a coma.

After running some tests, Clonch says she was told that three lacerations in her colon might be the source of her illness.

Because of the lacerations, doctors told Clonch it would be necessary to remove a portion of her colon.

She agreed, and says following surgery her blood count returned to normal.

Upon recovering from surgery, Clonch says she began to consult with attorneys about filing a malpractice claim against Levine. She eventually retained Richard M. Lewis of Jackson, Ohio, to handle her case.

Hiring Lewis, Clonch says, was a colossal mistake for two reasons.

First, he mislead her that he was licensed to practice in West Virginia, and, second, his inclusion of substance abuse allegations on Levine’s behalf in her original complaint led to the case being dismissed.

Malpractice claims never aired

Though the case file is under seal, Clonch provided The Record with a copy of the complaint Lewis filed on her behalf. It bears the Mason Circuit Clerk’s official time-stamp of 4:16 p.m. on Dec. 27, 2000.

In addition to Levine, Lewis named PVH as a defendant in the suit. Specifically, Lewis alleged a “negligent credentialing” claim on PVH’s behalf when it “granted and continued staff privileges to Defendant Jack M. Levine, D.O. after such time that Dr. Levine exhibited a pattern of substance abuse of which the hospital should have become aware.”

Clonch and her husband, Buster, first became aware of Lewis’ decision to make public the allegations of substance abuse in a letter Lewis addressed to them two days after filing the lawsuit.

In his letter, Lewis said the substance abuse allegations, which specifically addressed a “drinking problem” on Levine’s behalf, would have to be further substantiated to remain a part of the lawsuit.

“Otherwise, the Court upon a proper motion filed on behalf of the hospital will dismiss that particular claim,” Lewis said in his letter.

Instead of PVH moving to dismiss the claim, Levine would be the one to do so. In a copy of a reply which does not bear the circuit clerk’s time-stamp, but is dated May 26, 2001, and contains the signature of Levine’s attorney Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, Levine not only categorically denied Clonch’s allegations of malpractice, but also asked the substance abuse allegations be stricken from the court record.

“…[T]his defendant respectfully moves to strike the allegations relating to him as defamatory, scandalous and without any basis in fact and further respectfully moves that his honorable court order plaintiffs and their counsel to provide a written apology to him fully addressing these outrageous claims,” Taylor said in his reply.

In reply to Levine’s motion to strike the allegations, Mason Circuit Judge David W. Nibert set a hearing date of June 26, 2001. Clonch says she began to suspect she was “set-up” as she met Charleston attorney Robert Q. Sayre on the courthouse steps prior to the hearing.

According to Clonch, he was assisting in the case since Lewis not only didn’t have a license to practice in West Virginia, but also was excused from the hearing due to a scheduling conflict with a divorce case in the Jackson County Court of Common Pleas. Also, Clonch said Sayre told her “‘I haven’t had time to prepare for this case.’”

The entire hearing centered on the allegations of Levine’s substance abuse. What disappointed Clonch was that nothing related to the alleged malpractice was ever discussed.”

“I thought we were going to trial on the colon thing,” she said.

In addition to siding with Levine that the substance abuse allegations should be stricken from the record, Nibert went a step further and ordered the case sealed. Because the case file is sealed, the exact wording of Nibert’s order is unknown.

However, Clonch provided the Record a copy of an initial draft of Nibert’s order that Taylor and Sayre sent to each other via fax machine between Aug. 3 and Aug. 6, 2001. In the initial agreement, Clonch was to issue a letter of apology to Levine for raising the allegations.

About a month later, Clonch said Lewis and Sayre made a visit to her home informing she and Buster of Nibert’s decision. In addition to a written apology, Clonch said Levine was asking she and Buster pay Taylor’s attorney’s fees.

They agreed to dismiss the suit, but on the condition that they neither pay Taylor nor write a letter of apology.

“There was no way in Hell I was going to apologize,” Delores said.
Apparently, Levine accepted the their terms as the Clonches say they received a copy of letter dated Sep. 11, 2001 Lewis addressed to Taylor saying “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.”

The case was dismissed from the docket on Oct. 19, 2001. The dismissal, records show, came less than a week before Levine obtained his license to practice medicine in Illinois.

Now in Ohio awaiting trial in W.Va.

In its article about the Shasteen suit, the Daily Union reported that SMH “terminated his [Levine's] employment with the hospital in early 2007. It was unclear as to why.

Since then, Levine has joined the staff of Pike Community Hospital in Waverly, Ohio. According to its Web site, Levine practices general surgery/gynecology at PCH.

Currently, Levine also is defending against a malpractice case Ralph A. Barcus of Gallipolis filed against him in Mason Circuit Court in December. The case, in which Barcus alleges Levine failed to totally remove a catheter from his chest in May 2001, is slated for trial next month before Judge Thomas C. Evans III.

Shelby, Illinois Circuit Court, Case No. 2007L27
Mason Circuit Court, Case No. 00-C-216 (under seal)

Dr. Jack Levine (Photo courtesy of the Shelbyville Daily Union)

CHARLESTON – Along with pending civil cases in West Virginia and Illinois, a former Mason County physician now faces criminal charges in Ohio, according to police and media reports.

According to the Chillicothe Gazette, Dr. Jack M. Levine was arrested and charged on Wednesday, Dec. 19 with one count of sexual imposition. Levine’s arrest, according to the Gazette, was a result of a joint investigation conducted by the Pike County Sheriff’s Office and the Ohio Medical Board.

According to an incident report the Sheriff’s Office released to the media, the investigation was launched on Nov. 30. It was apparently a result of information one patient provided to investigators about related incidents at the Pike Community Hospital in Waverly where Levine now practices medicine.

According to the report, the woman who provided the tip was keeping a scheduled appointment with Levine. The woman, who is unidentified, is a cancer patient who was seeking treatment from Levine for an addiction to prescription pain medication.

Upon approaching Levine’s office, the report states, the woman encountered another woman leaving the office. The second woman, who also is unidentified, reportedly said Levine’s “nothing but a sex addict.”

The report goes on to say that Levine had “unwanted sexual contact” with the cancer patient during a later visit.

According to WBNS-TV 10 in Columbus, the cancer patient has cooperated with authorities Information she provided was enough for the Sheriff’s deputies to not only arrest Levine, but also execute a search warrant on both his office and two residences in Waverly.

After he was arraigned on the sexual imposition charge, Levine was released on bond.

In Ohio, sexual imposition is a third-degree misdemeanor, and is punishable by up to 60 days and jail, and a $500 fine.

WBNS attempted to obtain a comment from Levine by visiting both his residences, and office on Dec. 21. Efforts were unsuccessful as nobody answered the door at either residence, and his office was closed.

However, Craig Solle, PCH president, told WBNS that Levine was out-of-town on a “previously scheduled vacation.” Also, Solle said Levine will remain on staff of the hospital until the outcome of the case.

“You don’t change a qualified surgeon’s status based solely on an accusation,” Solle said.

Nevertheless, according to WBNS, a judge ordered that Levine be accompanied by a member of his staff anytime he sees a female patient.

The West Virginia Record attempted to obtain a comment from Barry M. Taylor, with the Huntington law firm of Jenkins Fenstermaker, who is representing Levine in a pending malpractice case in Mason Circuit Court. Taylor did not return repeated telephone calls.

In that case, Ralph A. Barcus, of Gallipolis, Ohio, alleges that he suffered from chest pains as a direct result of pieces of a catheter Levine left in his chest. According to court records, Levine first inserted the catheter in November 1999, and removed it in May 2001.

Along with the malpractice case in Mason County, Levine remains a respondent-in-discovery in a wrongful-death suit in Shelby Circuit Court in Shelbyville, Ill. In that case, Penny Shasteen alleges Dr. Arnold V. Agapito, Shelby Memorial Hospital and the Shelby Area Ambulance Service contributed to the death of her mother, Donna Ogilvie, in 2005 when they failed to properly provide her care following complications resulting from a colonoscopy.

Though court records show Levine as the one who performed the colonoscopy, at this point he is not being held negligent in Ogilvie’s death. Instead, Shasteen is asking that Levine answer all discovery requests, and be available for deposition as the other defendants.

Pike, Ohio County Court, Case No. 07-CRB-1035

Former Mason County physician Dr. Jack M. Levine ducks behind his attorney Thomas Spetnagle as they enter the building leading to the Pike County Court on Jan. 16. Levine was scheduled to reply to the allegations he had inappropriate sexual contact with a female patient, but the pre-trial conference was postponed due to the prosecution’s failure to turn over certain documents in time. (Photo by Lawrence Smith)

WAVERLY, Ohio –- A pre-trial conference scheduled in the case of a former Mason County physician charged with sexual imposition has been delayed due to the failure of the state to turn over certain documents in a timely fashion.

Dr. Jack M. Levine was scheduled to be in Pike County Court on Jan. 16 to respond to the allegations he had inappropriate sexual contact with one of his patients. According to court records, Levine was arrested and charged with one count of sexual imposition, a misdemeanor, last month following a compliant one of his female patients lodged against him with authorities.

About 10 minutes prior to the scheduled start of the hearing, Levine showed up with this attorney, Thomas Spetnagel, with the Chillicothe law firm of Spetnagel and McMahon. Levine and Spetnagel promptly walked into the courtroom while media and the public were kept outside until the clerk called the case.

After about 30 minutes, a clerk came outside and said the hearing was to be rescheduled. The reason for the rescheduling, she said, was because the prosecutor’s office had not provided certain documents to Spetnagle in time for Wednesday’s hearing.

It was not immediately clear as to what the documents were as upon announcement the hearing was postponed the assistant prosecutor was handling other cases, and Levine and Spetnagle exited the building out a side entrance.

Attempts to obtain a comment from Spetnagle and Pike County Prosecutor Robert Junk were unsuccessful as both did not return calls prior to presstime.

A call to the Court clerk’s office prior to presstime revealed that a new hearing date had not been rescheduled.

Pike, Ohio County Court, Case No. 07-CRB-1035