CHARLESTON, W. Va. (Legal Newsline) - Though the West Virginia Supreme Court was correct in remanding a malpractice case from Mason County back to the circuit court, one of the justices said the piece of reform legislation that gave rise the suit has become a Frankenstein "monster."

On Feb. 14, the Court issued its opinion in the case of Westmoreland v. Vaidya. In its ruling delivered per curium, the Court found that while the trial judge was correct in determining the Medical and Professional Liability Act applied the malpractice case Dr. Danny R. Westmoreland filed against Dr. Shrikant K. Vaidya, he erred in dismissing it prior to Westmoreland obtaining a certificate of merit.

The case originated in 2003, when Westmoreland, a family physician in Mason, consulted with Vaidya, a urologist in Point Pleasant, for kidney stones. In the course of performing a cystoscopy for the removal of a temporary stent he placed in Westmoreland's ureter, Westmoreland alleges Vaidya's actions resulted in him developing Peyronie's Disease and renal failure.

In 2005, Westmoreland, pro se, filed suit against Vaidya alleging not only malpractice, but also slander, fraud and battery.

On Oct. 26, 2006, Kanawha Circuit Judge Tod J. Kaufman dismissed the suit based on Westmoreland not filing a certificate of merit as required by the 2003 amendment to the MPLA.

Kaufman was appointed to the case after both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves.

Following Kaufman's dismissal, Westmoreland hired Robert W. Bright with the Story Law Office in Pomeroy, Ohio, to pursue an appeal. Before appealing to the Supreme Court, Bright made a motion for Kaufman to reconsider his decision since Westmoreland relied on exceptions to filing the suit without a certificate of merit.

In December 2006, Kaufman denied Bright's motion to reconsider.
However, the Court said since Westmoreland relied on the exceptions in "good faith" he "should have been afforded a reasonable time to secure a certificate of merit after the trial court ruled than an expert is required and that a certificate is mandated." In remanding the case back to Mason County, the Court gave Westmoreland 30 days to find a qualifying physician who could sign-off on the suit.

When the opinion was issued, Justice Larry Starcher noted that he concurred with the decision and reserved the right to file a separate opinion. On July 17, following the Court's adjournment for the 2007-08 term, Starcher offered his take on the case.

Denying access to courts

From the start, Starcher expressed his dislike for the MPLA. Though the Court correctly remanded it, Starcher said, "the underlying facts of this case demonstrate, once again, the absurd results likely to be reached by application of the Medical Professional Liability Act ("the MPLA")."

After detailing the facts of the case, Starcher asked, "What is the point of applying the MPLA in this case?" He later answered by saying, "other than racking up additional fees for the defendant's lawyers and additional costs for the plaintiff's lawyers." Since Westmoreland did serve Vaidya with a hand-written "notice of intent" at least 30 days before filing the suit, "[i]sn't it reasonable to conclude that Dr. Vaidya is on notice by now that Dr. Westmoreland intends to sue him?"

At least in the Westmoreland case, a certificate of merit is a "procedural 'speed bump.'" One issue that "troubled" Starcher about obtaining a certificate was Westmoreland's assertion that, after consulting with a dozen urologists, he said two said they would sign one for a fee of $40,000.

"If true," Starcher said, "then requiring Dr. Westmoreland to comply with the MPLA is, essentially, to impose upon him a filing fee substantially different from that in every other type of lawsuit.

Also, Starcher said because Westmoreland raised issues not governed by MPLA, such as battery, "an expert's nuanced opinion would seem to be unnecessary under such circumstances."

Though Starcher does not go so far as to say MPLA is unconstitutional, he unequivocally states it "is a procedural monster that is wholly contrary to the common law." Because of that, in future cases MPLA "must be strictly and narrowly construed to do as little harm to the common law as possible."

"Pre-suit notices and screening certificates of merit have some meritorious public policy goals," Starcher concluded," but these procedural humps should not be interpreted to restrict, delay, or deny citizens' access to the courts."

'Total agreement'

Starcher's concurring opinion seems to mirror issues Bright raised in his appeal brief. In addition to asking the Court to reverse Kaufman's decision on procedural grounds, Bright asked they find MPLA unconstitutional since if physicians could charge a fee as high as $40,000 to simply sign a piece of paper, then that would "deny citizens' access to the courts."

In his brief, Bright made reference to at least one state, Oklahoma, where pre-suit requirements were found unconstitutional.

Also, though he did not refer to MPLA as a "monster" like Starcher, Bright did draw parallels to passage of it and Prohibition in the 1920's. Though passed with good intentions, each led to their set of unintended consequences, Bright said.

In commenting on Starcher's concurring opinion, Bright said he's "in total agreement."

"I freely admit that his case is truly a unique case because of the fact that both parties are physicians," Bright said.

"However, even though Dr. Westmoreland is a physician and a Plaintiff, if does not change the fact that he is familiar with the procedure and that a large portion of his allegations relate to what we assert is a battery claim which lies outside the bounds of the MPLA."

According to Bright, a board certified physician was found to sign the certificate of merit within the 30 days allotted by the Court. Discovery is still being conducted in the case, he said.