| By Lawrence J. Smith
POINT PLEASANT - A Mason County physician's motion to reopen his recently dismissed malpractice suit hinges on whether the judge agrees a certificate of merit is an absolute necessity for the case to proceed.
Last month, Dr. Danny R. Westmoreland, with the assistance of Pomeroy, Ohio attorney Robert Bright, filed a motion asking Kanawha County Circuit Judge Tod J. Kaufman to reconsider his Oct. 26 order dismissing Westmoreland's suit against Point Pleasant urologist Shrikant Vaidya.
Kaufman was appointed to hear the case by the state Supreme Court when both Mason County Circuit judges David W. Nibert and Thomas J. Evans recused themselves from the case.
Though both sides agreed to discuss a settlement during an Oct. 25 status conference, Kaufman a day later granted a motion by Vaidya's attorney Rob Aliff, with the Charleston law firm of Jackson Kelly, to dismiss the suit.
In his order, Kaufman said under the Medical Professional Liability Act of 2003, Westmoreland "must meet the requirements in filing this malpractice action, including filing a certificate of merit and providing an expert witness to testify to the deviation of the standard of care."
According to court records, Westmoreland brought suit against Vaidya in 2005 alleging that Vaidya's removal of a stent from Westmoreland's ureter in 2003 left him permanently damaged.
He alleges that during the procedure he told Vaidya to stop due to the pain of the scope being inserted into his penis, but Vaidya refused to comply.
This, Westmoreland argues, fits the legal definition of rape.
Westmoreland met all requirements, and then some
In his motion, Bright argues that a certificate of merit is not an absolute necessity to bringing a malpractice suit based on a "plain reading" of the statute.
If a plaintiff simply believes a certificate of merit is not required because the suit is "based on a well-established legal theory of liability" then the testimony of an expert witness is not required.
"First, the Plaintiff or his Counsel must believe that no screening certificate of merit is necessary," Bright wrote. "Plaintiff Westmoreland has submitted a sworn affidavit stating that he believed that a certificate of merit was not required.
Please note that the statute does not require that the Plaintiff's believe be reasonable or in good faith - it merely states that he must believe it."
Also, Bright said Westmoreland's case that he believed he could proceed without a certificate of merit is supported by Vaidya's own actions. In his brief, Bright says Vaidya, as required by statute, did not respond in writing to Westmoreland's notice within 30 days to express any objections.
"By choosing not to comply with the requirements of the MPLA, Defendant Vaidya waived his objection to the certificate of merit requirement," Bright wrote.
"Further, the Defendant's failure to timely file an answer should have resulted in a default judgment against the Defendant."
Furthermore, Westmoreland went the extra mile by seeking urologist who possibly would agree to sign a certificate of merit. When he found the $40,000 fee they wanted objectionable, Bright said Westmoreland fell back to his common-law argument.
"The consequences of such a fee would clearly restrict or deny citizens' access to the courts," Bright wrote.
Based mostly on Vaidya's failure to reply to Westmoreland's initial complaint, Bright asked Kaufman reinstate Westmoreland's complaint so that his claims could "be decided on their merits - without requiring the Plaintiff to file a Certificate of Merit."
As an alternate consideration, Bright asked that Kaufman reinstate the suit, and give Westmoreland 30 days so he "may have a second opportunity to attempt to obtain a certificate of merit."
If Westmoreland could not obtain a certificate within the 30 days, Bright said, "the Court then could properly dismiss the Plaintiff's claims."
No date has been set as to when Kaufman may rule on the motion, or hold a hearing for additional arguments.
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