King

CHARLESTON – The Supreme Court of Appeals of West Virginia has affirmed an entry of summary judgment in favor of the Herbert J. Thomas Memorial Hospital Association, a defendant in a medical malpractice law suit.

A Kanawha County Circuit Court ruled for the hospital in February 2011 involving a 2007 injury.

According to background information, Dr. Jan Cunningham was evaluated by an emergency room physician at Thomas Hospital in April 2007 and then referred to Dr. Hossam Tarakji, a “hospitalist” who treated patients at the hospital.

“Dr. Tarakji admitted Cunningham into the hospital, and provided care and treatment to Cunningham during his hospitalization,” court documents state. “During a period when Dr. Tarakji was on vacation, Cunningham received treatment and care from another hospitalist associated with Dr. Tarakji, Thomas J. Rittinger, M.D.”

A few days after admission, Dr. Richard A. Fogle performed exploratory surgery on Cunningham and he developed a serious infection “that apparently resulted from the surgery,” court records state. “Dr. Cunningham ultimately required several follow-up surgeries and alleges that he has suffered permanent injury as a result of the infection.”

Cunningham filed suit against Thomas Hospital and Drs. Tarakji, Rittinger and  Fogle. He also included Hospitalist Medicine Physicians of Kanawha County, PLLC, which employed Tarakji and Rittinger, and Delphi Healthcare Partners, Inc., for whom Fogle was employed. 

“The Cunninghams sought to hold Thomas Hospital vicariously liable for the alleged negligence of Dr.s Tarakji, Rittinger and Fogle on the theory that the doctors were employees or actual agents of the hospital, or that the doctors and corporate defendants Delphi and Hospitalist Medicine were engaged in a joint venture with the hospital,” according to court records.

Judge Charles E. King of the Circuit Court of Kanawha County granted Thomas Hospital’s motion for summary judgment and the Cunninghams appealed.

The high court stated that to determine whether the doctors were “employees or actual agents of the hospital” or “independent contractors,” as the hospital asserted, it would look to the four factors the Court set out in the Paxton v. Crabtree case in 1990.

“There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative,” the ruling states.

On the first factor, the Court wrote, “[T]he evidence demonstrates that Dr. Fogle was recruited and engaged by Delphi, and Drs. Tarakji and Rittinger were recruited and engaged by Hospitalist Medicine. Thus, factor one favors the conclusion that Drs. Fogle, Tarakji and Rittinger were not agents of Thomas Hospital.”  

The second factor concerns the payment of compensation.  The Court wrote, “it is undisputed that Delphi and Hospitalist Medicine were compensated by Thomas Hospital for the services rendered by the physicians to the hospital.  Then, Delphi paid Dr. Fogle’s compensation and Hospitalist Medicine paid Drs. Tarakji and Rittinger.”

“It also is noteworthy that Thomas Hospital did not bill patients for the services provided by these three physicians, and Thomas Hospital did not pay for the physicians’ malpractice insurance,” the ruling states. “Thus, there is no question of fact with respect to the second element of the Paxton test.”

As to the “power of dismissal,” the Court noted that while the hospital required physicians to “comply with the bylaws, rules and regulations, and policies and procedures of the hospital,” there was nothing in the agreements between the hospital and either Hospitalist Medicine or Delphi that granted Thomas Hospital the authority to terminate the doctors.

“The agreement between Dr. Fogle and Delphi set out the conditions under which that agreement would be terminated” and “the contracts between Hospitalist Medicine and Drs. Tarakji and Rittinger expressly set out the conditions under which the physicians could be terminated,” the Court wrote about each of the employment arrangements. 

“Accordingly, the third element of the Paxton test creates no question of fact and favors the conclusion that Drs. Fogle, Tarakji and Rittinger were not agents of Thomas Hospital,” the ruling states.

“As Syllabus point 5 of Paxton recognizes, the fourth element of the test, power of control, is the determinative factor in a master-servant relationship analysis.

“[W]e have carefully and thoroughly reviewed the record in this case and find no evidence to establish a question of fact with regard to the element of control exercised by the hospital over Drs. Fogle, Tarakji and Rittinger. On the contrary, the evidence is clear that the hospital merely exercised a level of control commensurate with that approved by this Court” in prior cases.

“Having carefully reviewed the evidence that was before the circuit court when it ruled on Thomas Hospital’s summary judgment motion … we affirm the circuit court’s award of summary judgment with respect to the Cunningham’s vicarious liability theory.”

Turning to the alternate theory of whether Thomas Hospital was in a joint venture with the physicians and therefore vicariously liable for the physician’s actions, the Court relied on the language in the circuit court’s order granting summary judgment.

Judge King wrote and the Court quoted, “[T]he Plaintiffs cannot prove the essential element of “joint venture”, i.e., they cannot prove that Thomas Memorial Hospitalexercised the right to control the defendant physicians’ practice of medicine … there is no evidence that the other defendants had the right to control the Hospital’s practices with respect to its business.  As such, the theory of joint venture cannot provide an independent basis for liability against Thomas Memorial Hospital.

 “We find no error in this conclusion and, therefore, affirm the circuit court’s summary judgment on the issue of a joint venture.”

The opinion was issued Nov. 20 per curiam. A per curiam order is reached by a majority, anonymously.

CHARLESTON – A Williamson woman is suing a Charleston surgeon for allegedly deviating from the acceptable standard of care during her surgery.

On Oct. 27, 2010, Dr. Lisa M. Skinner performed an abdominal hysterectomy on Tawanna Wright at Charleston Area Medical Center, according to a complaint filed Nov. 29 in Kanawha Circuit Court.

Wright claims during the surgical procedure, Skinner failed to exercise the degree of care, skill and learning required or expected of a responsible, prudent healthcare provider.

Skinner failed to obtain an adequate informed consent to proceed with surgery; failed to complete a post-repair cystoscopy to assure an appropriate and safe closure of the bladder wall; and failed to assure that the bladder repair did not demonstrate any sutures into the bladder lumen after completion of the abdominal hysterectomy and closure of the unplanned cystotomy, according to the suit.

Wright claims Skinner’s negligence caused her to suffer permanent injuries to various parts of her body.

Skinner’s actions also caused Wright to sustain medical expenses; suffer a diminution in her ability to enjoy life; suffer permanent disfigurement; suffer physical and mental anguish; sustain loss of wages; suffer annoyance, aggravation and inconvenience; and suffer a diminution in her ability to earn money, according to the suit.

Wright is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Greg K. Smith and Matthew E. Chandler.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 12-C-2368

CHARLESTON – A Charleston couple is suing Charleston Area Medical Center for failing to make a proper diagnosis.

Dr. Lisa Downham is also named as a defendant in the suit.

Charleston Area Medical Center is doing business as Health Plus Urgent Care.

On March 23, Kimmy McNair presented to Health Plus with complaints of a dry cough, chest congestion, a sore throat, body aches and nasal drainage and was seen by Downham, according to a complaint filed Dec. 5 in Kanawha Circuit Court.

McNair claims a chest x-ray was performed which showed no radiographic evidence of acute cardiopulmonary process.

Downham diagnosed McNair with right lower lobe pneumonia and bronchitis even though the chest x-ray was negative, prescribed her Levaquin and sent her home, according to the suit.

McNair claims approximately one week later she collapsed at work and was taken to Charleston Area Medical Center, where she was diagnosed with ARDS, admitted, listed as critical care and had to be intubated.

Since the initial diagnosis of ARDS, McNair has had severe and persistent pulmonary impairment, which is believed to be permanent, according to the suit.

McNair claims the defendants acted negligently, carelessly, willfully and wantonly and/or with a reckless disregard of risk of harm, which caused her injuries.

The defendants were negligent in failing to properly diagnose and treat McNair’s complaints of cough and chest congestion, specifically in improperly diagnosing McNair was pneumonia and improperly prescribing Levaquin, according to the suit.

McNair claims she has suffered physical pain and mental anguish; sustained disfigurement and deformities; incurred medical expenses; suffered lost wages and earning capacity; has sustained humiliation and embarrassment; and has suffered an impairment of her capacity to enjoy life.

As a result of the defendants’ negligence, McNair’s husband, Larry McNair, has sustained great and irreparable loss in that he has suffered a loss of comfort, society, convenience and consortium to and from his wife, according to the suit.

The McNairs are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Richard D. Lindsay and Matthew C. Lindsay.

The case has been assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 12-C-2390

Cabell Huntington Hospital’s emergency room entrance

HUNTINGTON – Cabell Huntington Hospital has settled a wrongful death lawsuit brought by the estate of a woman who died there in July 2011 after being involved in a car-motorcycle accident in Kentucky.

U.S. District Judge Robert Chambers approved the settlement, worth $500,000, on Dec. 10. Chambers wrote that the settlement amount represented the maximum recovery allowed under state law for such a case.

The claims of negligence made by the Estate of Lora McCarty fell within a section of West Virginia law that caps damages in lawsuits brought over the treatment of emergency medical conditions.

“None of the exceptions to the West Virginia Code §55-7B-9© were applicable to the claims in this matter,” Chambers wrote.

“As a result, the total amount of civil damages recoverable for the claims brought in this matter was artificially limited to $500,000, regardless of the actual amount of compensatory or special damages sustained by the Estate of Lora McCarty.”

McCarty died July 10, 2011, after sustaining a head injury in the traffic accident and being admitted to CHH’s Emergency Trauma Center. She received treatment in both the Trauma Emergency Room and Intensive Care Unit.

Her husband Joshua retained the Piscitelli Law Firm and Mundy and Associates to file a medical malpractice lawsuit against CHH, University Physicians & Surgeons and the Marshall University Board of Governors.

The firms’ combined contingency fee is 40 percent.

The complaint said the defendants deviated from the standards of care when administering the medication needed to control Lora McCarty’s brain swelling and intracranial pressure.

That put her at an increased risk for brain death, the suit says.

Chambers wrote that McCarty’s estate suffered $1,341,254 in future lost wages and future household services.

The state law that was applicable to the suit is designed to protect health care facilities and workers who provided good faith services or assistance in an emergency condition.

There are exceptions to the law that did not apply to McCarty’s case but would provide other litigants with an opportunity for higher recovery. Those exceptions are willful, wanton or reckless disregard of a risk of harm to the patient or treatment in clear violation of established written protocols for triage and emergency health care procedures.

Attorneys will keep $200,000 of the settlement, while husband Joshua and daughter Karli will each receive $144,026.93.

CHARLESTON – A woman is suing Thomas Memorial Hospital for allegedly negligently caring for her while she was one of its patients.

Herbert J. Thomas Memorial Hospital Association is doing business as Thomas Memorial Hospital.

On May 28, 2010, Karen Roberts became a patient of the defendant, according to a complaint filed Dec. 7 in Kanawha Circuit Court.

Roberts claims during her endoscopic plantar fasciotomy, the defendant failed to apply a tourniquet with adequate padding.

As a result of the defendant’s negligence, carelessness, recklessness and marked deviation from the normal standard of care, Roberts developed reflect sympathetic dystrophy and was otherwise grievously injured, according to the suit.

Roberts claims the defendant’s actions also caused her to incur medical expenses for medicines, hospitalizations, doctors’ bills and other medical care and attention.

Roberts is seeking judgment in an amount as yet to be determined with pre- and post-judgment interest. She is being represented by William S. Druckman and Madonna C. Estep.

The case has been assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 12-C-2420

CHARLESTON – A man is suing the West Virginia University Board of Governors, claiming it is responsible for his family member’s death.

Clara Anderson was admitted to Charleston Area Medical Center on Sept. 7, 2010, with severe abdominal pain, according to a complaint filed Dec. 14 in Kanawha Circuit Court.

Shawn Shelton claims it was determined that Anderson was suffering from acute appendicitis and laparoscopic surgery was performed by Dr. Aaron Brown, who determined Anderson’s appendix had ruptured.

Anderson was discharged on Sept. 10, 2010, but returned on Sept. 28, 2010, with abdominal pain and shortly thereafter, she suffered a massive ischemic stroke and died on Oct. 1, 2010, according to the suit.

Shelton claims Brown was negligent in his care of Anderson.

Brown failed to meet the applicable standards of care and violated his duty of care to Anderson, according to the suit, by failing to place a drain in her abdomen after the rupture was discovered in order to drain the fecal material which would cause infection; failed to put Anderson on a course of antibiotics to combat the infection; and failed to schedule follow-up care shortly after the procedure to check for signs of infection.

Shelton claims the defendant’s negligence caused Anderson to suffer hypercoagulation of her blood secondary to sepsis, which is associated with major thrombotic ischemic events, resulting in both the stroke and the heart attack that caused Anderson’s death.

The defendant’s actions caused Shelton suffer loss of expected income of Anderson; incur expenses for care, treatment and hospitalization; incur reasonable funeral expenses; and suffer sorrow and mental anguish, according to the suit.

Shelton is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by C. Paul Estep and Virginia Jackson Hopkins.

The case has been assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court case number: 12-C-2473

Matthew Lindsay

HUNTINGTON – A Kenova woman is suing a doctor she visited before she was diagnosed with melanoma.

Billie Plymale filed her lawsuit against Kirt Thomas Miller, D.P.M, on June 20 in U.S. District Court for the Southern District of West Virginia at Huntington. She claims Miller diagnosed her with a non-healing lesion more than a year before a biopsy determined it was cancerous.

She charges Miller with failing to timely diagnose her melanoma.

“As a direct and proximate result of the negligence, carelessness, recklessness and deviation from the appropriate standard of card of the Defendant, the plaintiff Billie Plymale suffered a delay in the diagnosis and treatment of her illness causing Billie Plymale to suffer from an advanced cancer,” the complaint says.

As a result of Miller’s actions, Plymale says she has suffered mental anguish and will sustain future disfigurement, incur health care expenses, suffer humiliation and embarrassment and have a diminished life expectancy.

Miller is an Ohio resident practicing in Huntington, the complaint says.

On May 9, 2011, Plymale went to Miller’s office for a small ulceration of the plantar area of her left food, she says. She was prescribed a topical cream.

During regular visits, Miller described the lesion as non-healing because of the prominence of a bone, the complaint says. On March 1, 2012, the lesion was slightly worse, the complaint says.

By March 26, 2012, the lesion was showing poor signs of healing and there were a few small lesions in the arch, and she was referred to another physician, the complaint says.

On April 25, 2012, a biopsy revealed the lesion was an ulcerated invasive malignant melanoma, the complaint says. A biopsy of her lymph nodes on July 5 confirmed the diagnosis of metastatic melanoma, the complaint says.

Plymale is also seeking punitive damages. She is represented by Matthew C. Lindsay and Richard Lindsay of Tabor Lindsay & Associates. The two are also lawyers.

The case has been assigned to U.S. District Judge Robert C. Chambers.

U.S. District Court for the Southern District of West Virginia case number 3:13-cv-14953.

Justices of the state Supreme Court

CHARLESTON – The state Supreme Court has cleared two medical professionals of allegations of medical malpractice regarding the death of an 18-year-old woman from a blood clot.

The unanimous memorandum opinion affirming the order of Cabell County Circuit Court Judge David M. Pancake was filed on June 24.

The case arose from the death of 18-year-old Sara Bryanne Coleman on Aug. 16, 2004. It was determined that she had died as the result of a blood clot.

The mother and Administratrix of the Estate of Sara Bryanne Coleman, petitioner Theresa Coleman, filed a malpractice lawsuit against respondents Allan Chamberlain, M.D. and Patricia Hackney CNM, RN, on Aug. 15, 2006, and added Mitchell Nutt, M.D. as a defendant on June 7, 2007.

Theresa Coleman alleged that the blood clot that led to her daughter’s death was caused by oral contraceptives prescribed by the defendants. Sara Coleman was prescribed the contraceptives to control symptoms of irregular menses and dysmenorrhea.

The decedent had a known personal history of obesity and smoking and a family history of blood clots, pulmonary embolism and deep vein thrombosis, the opinion says.

The respondents argued that the decedent fell on a trampoline two to three days prior to her death and this fall led to the fatal blood clot. They claimed that it had been approximately four weeks since she had ingested the last active oral contraceptive pill.

Sara Coleman complained of injury for two days after the fall and requested that her parents take her for medical care but they didn’t, the opinion says. Instead she was given Neurontin, which had been proscribed to her mother, to treat her pain.

Additionally, the decedent missed work for two days following the trampoline fall, complaining of back pain, and although she told her father on the morning of her death that she had passed out in the bathroom and had shortness of breath, he did not seek medical care for her, according to the opinion.

The trial was reset numerous times and Dr. Chamberlain was dismissed prior to trial after his motion for summary judgment was granted. On Nov. 15, 2011, a jury returned a defense verdict in favor of respondents Hackney and Nutt.

Theresa Coleman filed a motion for a new trial and an order denying the motion was entered by the circuit court on April 20, 2012. Coleman then appealed to the state Supreme Court alleging several assignments of error.

On appeal, the petitioner argued that the circuit court had erroneously applied a new statute to the case retroactively. This statute limits a health care provider’s liability to a patient as a result of the ingestion of approved prescription drugs.

The Court ruled that since the jury found that the defendants had not deviated from the medical statement of care, the jury had never reached the issue and it would not address the retroactivity of this code as it was unnecessary to decide the action before it.

“Petitioner alleges several other assignments of error,” the court wrote, “including that the circuit court erred in granting summary judgment to Allan Chamberlain, M.D. and erred in granting respondents’ request for a spoliation instruction, as the instruction offered was not a correct statement of law.

“Further, petitioner argues that the lower court erred in ruling that petitioner could not introduce testimony concerning a missing medical history form. Petitioner argues that the lower court erroneously granted a directed verdict on informed consent, and that the lower court erroneously denied petitioner the right to present evidence regarding respondents’ services provided to the decedent pursuant to their billing records.

“Additionally, petitioner argues that the circuit court erred in denying petitioner an opportunity to impeach the expert credentials of Respondent Hackney.”

Theresa Coleman also argued that the circuit court erred in allowing the defense to strike an African-American juror.

“The circuit court reviewed each of petitioner’s contentions at length,” the opinion states.

“For example, with regard to the issue of informed consent, while the trial court initially ruled this issue would be presented to the jury, it directed a verdict in respondent’s favor on this issue. However, the circuit court explained in detail the reasons for its change of decision as well as the reasons for the timing of the same.

“With regard to the question of the opportunity to impeach the credentials of Respondent Hackney, the lower court did not limit petitioner’s ability to conduct voir dire relating to her status as an expert or her credentials, but it excluded information as to previous claims or as irrelevant.

“Similarly, the circuit court set out its extensive analysis of its rulings on any alleged billing irregularities, the striking of the African-American juror from the jury panel, the claim of spoliation of evidence, and each of the additional issues.”

Druckman

CHARLESTON – A couple are suing Associated Radiologists Inc. for negligent care and treatment.

Dr. Ahmad A. Khan was also named as a defendant in the suit.

Sylvia Bird was a paying patient of the defendants during her hospitalization on Aug. 30, according to a complaint filed June 28 in Kanawha Circuit Court.

Bird claims the defendants incorrectly interpreted a CT scan as showing localized dissection involving the proximal ascending thoracic aorta.

The defendants failed to order and perform additional tests before taking Bird to surgery and unnecessarily resecting her aorta, according to the suit.

Bird claims the defendants caused her to suffer physical pain and mental anguish; incur expenses; sustain humiliation and embarrassment; and suffer an impairment of her capacity to enjoy life.

As a further result of the negligence of the defendants, Sherman Bird lost the consortium of his wife.

The Birds are seeking compensatory damages with pre- and post-judgment interest. They are being represented by William S. Druckman and Madonna C. Estep of the Law Offices of Druckman & Estep.

The case has been assigned to Circuit Judge Louis H. Bloom.

Kanawha Circuit Court case number: 13-C-1223

St. Francis Hospital

CHARLESTON – A couple are suing a Charleston physician for failing to diagnose and treat a large epidural abscess.

Dr. Ananthan Krishnathas was named as a defendant in the suit.

On July 30, 2011, Timothy Ray Starkey was admitted to St. Francis Hospital and remained under the defendant’s care, according to a complaint filed July 26 in Kanawha Circuit Court.

Starkey and his wife, Ginny Lynn Starkey, claim Krishnathas failed to properly diagnose and treat a large epidural abscess that was pressing against his spinal cord.

As a result of the defendant’s acts and omissions, Timothy Starkey sustained severe and permanent physical and mental pain and suffering and permanent paralysis, according to the suit.

The Starkeys claim the defendant had a duty to provide Timothy Starkey with proper medical care and treatment for the injuries from which he suffered as would have been provided by a reasonably prudent hospitalist under the same or similar circumstances.

As a further direct and proximate result of the defendant’s breach of duty, the Starkeys have incurred a loss of income, according to the suit.

The Starkeys are seeking compensatory damages with pre- and post-judgment interest. They are being represented by Michael J. Del Giudice of Ciccarello, Del Giudice & LaFon.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 13-C-1408

Calwell

MORGANTOWN – A Kanawha County man is suing West Virginia University Board of Governors for injuries his minor son allegedly sustained during surgery.

West Virginia University Hospitals Inc. was also named as a defendant in the suit.

On June 14, 2011, Monroe Hairston II presented to the defendants for a pulmonary valve replacement surgery, according to a complaint filed Aug. 8 in Monongalia Circuit Court.

Monroe Hairston claims following the surgery, his son woke up on June 18, 2011, and discovered that he was permanently paralyzed.

As a result of his permanent paralysis, Monroe Hairston II has and will continue to incur medical and life care expenses; required specialized educational care; suffered a diminished capacity earning capacity; and has and will endure pain and suffering and loss of enjoyment of life, according to the suit.

Monroe Hairston claims the defendants caused his injuries and violated the accepted standards of medical care in the treatment of Monroe Hairston II.

As a direct and proximate cause of the defendants’ wrongful conduct, Monroe Hairston incurred and will continue to incur in the future the loss of society, companionship and consortium of his catastrophically injured child, according to the suit.

Monroe Hairston is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Stuart Calwell, David H. Carriger and Melissa H. Luce of the Calwell Practice PLLC.

Monongalia Circuit Court case number: 13-C-584

Regan

WHEELING – A widow is suing a hospital and treating physicians after her husband’s death.

Jody Lynn Gouldsberry, individual and as administratrix of the Estate of Nathan Joseph Gouldsberry, filed a lawsuit Feb. 12 against Angelo Georges M.D., Katarzyna Wychowaniec M.D., and Wheeling Hospital Inc. in the Circuit Court of Ohio County, citing medical malpractice.

Goulsberry says that in January 2012, Nathan Gouldsberry was taken from work to the emergency department at Wheeling Hospital with complaints including nausea, vomiting and diarrhea for three to four days.

According to the complaint, on Feb. 1 Mr. Gouldsberry was examined by Dr. Wychowaniec and Dr. Georges, at which time it was discovered that along with three to four days of vomiting, nausea and diarrhea, he had become dizzy at work earlier in the day, had a temperature of 103.2 degrees, elevated blood pressure, decreased platelet count, ketones, protein, glucose, blood and nitrites in his urine, focal pyelonephritis on his left and right kidneys, an enlarged spleen and a highly sensitive staph infection in his blood.

On Feb. 3, his doctors discharged him to his home with a diagnosis of Staphylococcus aureus urosepsis. Gouldsberry alleges that doctors failed to order an echocardiogram or liver function test.

The complaint states that on the morning of Feb. 9, 2012, Gouldsberry reported to the emergency room at Reynolds’ Memorial Hospital complaining of spiking fevers, worsening symptoms and weakness.

The complaint alleges that Memorial Hospital ER physicians immediately suspected endocarditis, ordered an echocardiogram and other tests and arranged transfer of Gouldsberry to a tertiary care center. In the evening of Feb. 9, 2012, Gouldsberry was transferred to UPMC Presbyterian Hospital where his condition continued to deteriorate until he died Feb. 13, 2012, of cardiorespiratory arrest secondary to infective endocarditis.

The complaint alleges that Dr. Wychowaniec and Dr. Georges failed in their duty of care to Gouldsberry, including their duty to treat him as a reasonable, prudent physician would under the same circumstances.

Gouldsberry is seeking an undisclosed amount of damages, including costs and punitive damages.

She is being represented by Wheeling attorney Christopher Regan of Bordas & Bordas PLLC.

Circuit Court of Ohio County Case No. 13-C-41.

Staun

PRINCETON – A Bluefield orthopedic surgeon is facing a likely $850,000 judgment reached by a jury months after he was sued again.

On Oct. 4, a Mercer County jury awarded Willie and Melissa Havens more than $2 million in their lawsuit against Dr. Walid Azzo, but plaintiffs attorney Mark Staun says the $2 million in noneconomic damages that were awarded will be reduced to $623,433, pursuant to a cap on such damages in medical malpractice cases.

If that reduction occurs, that will leave the total judgment at $846,280.87.

Azzo was also sued in Mercer County Circuit Court on May 1 by a woman who alleged her daughter’s shoulder surgery caused further injury.

The lawsuit filed by the Havenses in 2010 alleged Azzo treated a broken metatarsal with a short-leg cast and told Willie he could return to work.

Willie says he experienced severe pain and swelling of his leg in the month after.

By December 2008, after he had been instructed by Azzo he could return to work on full duty, Willie had deep venous thrombosis formation in the left distal supervicial femoral vein, the popliteal vein, the peroneal vein and the posterior and anterior tibial veins, the suit alleged.

Deep vein thrombosis is a blood clot.

The lawsuit said Azzo was negligent in failing to assess the possibility of DVT and failed to properly assess his swollen and painful leg during a follow-up visit.

The jury ruled that Azzo was negligent in his care and treatment and that the negligence was a proximate cause of DVT.

The jury awarded $31,532.87 for medical expenses and $191,315 in lost wages. With $2 million for pain and suffering, mental anguish, loss of enjoyment of life and loss of consortium, the original verdict was worth more than $2.2 million.

The jury trial began on Sept. 30.

The lawsuit filed May 1 by Melissa Surber alleged her daughter Kelsey underwent surgery for a labral tear. After the surgery, Kelsey complained of shoulder and neck pain, she says.

The complaint says Kelsey was diagnosed with chronic long thoracic neuropathy. Pain continued after a second surgery, she claims.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Hazard

BECKLEY – A Summers County woman is suing over claims that a doctor provided inadequate medical care.

Diana Cook filed a lawsuit Aug. 14 in the Circuit Court of Raleigh County against Dr. David L. Stuart, citing negligence and medical professional liability.

The plaintiff alleges that Dr. Stuart negligently performed medical examinations and a cholecystectomy procedure on July 7, 2011. As a result of the defendant’s negligent actions, Cook suffered further injury requiring major surgery, according to the complaint.

The plaintiff is seeking an undisclosed amount of damages.

She is being represented by Charleston attorneys Sprague W. Hazard, Andrew L. Paternostro and Jeff D. Stewart of The Bell Law Firm PLLC and Fayetteville attorney Kevin B. Burgess of Hamilton, Burgess, Young & Pollard PLLC.

Circuit Court of Raleigh County Case No. 13-C-653.

Raleigh General Hospital

BECKLEY – A patient is suing a hospital doctor after an allegedly improper diagnosis led to continued pain and discomfort.

Leona L. Hagerman and Clayton Hagerman filed a lawsuit dated July 31 against Cordell Honrado M.D. in the Circuit Court of Raleigh County, citing negligence.

According to the complaint, on Jan. 27, Leona Hagerman began experiencing extreme low back pain and numbness and tingling in her lower extremities.

She says that an ambulance was called and she was taken to Raleigh General Hospital. Hagerman claims that while at the emergency room, she complained that her back pain was a 10 out of 10 and that it radiated down her leg, as well as experiencing some urinary problems.

The complaint says that she was examined by Dr. Honrado and after a few hours, she was admitted to Raleigh General for pain control.

According to the complaint, an MRI was performed and results revealed a disc herniation at L4-5 with spinal stenosis and a broad disc bulge. The complaint alleges that Dr. Honrado called an orthopedic spinal surgeon around 7 p.m. on Jan. 27, but informed the surgeon that Hagerman did not have radicular leg pain, did not inform him of her urinary problems and was not showing any signs of cauda equina syndrome.

According to the complaint, on the morning of Jan. 28, Hagerman was seen by another physician and had to be catheterized.

Hagerman also claims that an orthopedic spine surgeon reviewed her films and condition and ordered that she receive an emergency transfer to another facility for surgery to be performed as soon as possible.

The complaint claims that Hagerman was transferred via air transfer to West Virginia University Hospital and underwent an emergency spine procedure. According to the complaint, after the her discharge on Feb. 2, she continued to suffer from loss of bowel and bladder functions, genital sensation and difficulty walking, as well as other permanent damages from cauda equina syndrome.

The Hagermans are seeking damages in excess of the jurisdictional limit. They are being represented in the case by Charleston attorneys Robert V. Berthold, Jr. and Holly G. DiCocco of Berthold Law Firm PLLC.

Raleigh County Civil Action No. 13-C-634.

O’Dell

PRINCETON – Ronnie K. Compton filed suit in Mercer County Circuit Court on Aug. 15, naming Frederick Barker, MD, doing business as Four Seasons Surgical, as the defendant.

Compton clams he underwent a laparoscopic cholecystectomy performed by Dr. Barker in August 2011. Compton alleges that during that surgery, pieces of the endo sac bag, which were utilized to transport and remove the gallbladder through a trocar site, tore off and remained inside of Compton.

According to Compton, Dr. Barker knew the foreign object remained in Compton and it was likely to cause infection or other complications but Dr. Barker was unable to locate it after a considerable effort.

Compton claims that during a post-operative visit, he told Dr. Barker about pain he was having in his abdomen, but Dr. Barker told him it was unrelated to the foreign object when, in fact, it was due to the foreign object.

Eventually, Compton says he underwent another surgery to remove the object but had suffered in pain up until that point. Compton alleges Dr. Barker was negligent in his treatment and seeks to hold him liable for his injuries.

Compton is seeking an undisclosed amount in damages. He is represented by attorney Tony L. O’Dell.

Circuit Court of Mercer County Case No. 13-C-325

Welsh

PRINCETON – Bernice Wayne Janutolo Jr., individually and as administrator of the Estate of Carolyn S. Janutolo, has filed suit in the Circuit Court of Mercer County on Sept. 29, naming Michael Hegstrom, M.D., as the defendant.

Bernice Janutolo claims her mother Carolyn Janutolo was negligently treated by Dr. Hegstrom on and after July 8, 2011.

Specifically, Bernice Janutolo alleges Hegstrom failed to timely and properly asses Carolyn Janutolo’s post-operative internal bleeding and hemorrhage.

Bernice Janutolo claims Hegstrom failed to provide additional and necessary surgical treatment to Carolyn Janutolo so as to properly treat the source of the hemorrhage and enable her to become hemodynamically stable.

According to Bernice Janutolo, Dr. Hegstrom’s negligence was the cause of her mother’s death for which she now seeks damages.

Janutolo is seeking an undisclosed amount in damages. She is represented by attorney Robert P. Welsh of the Masters Law Firm.

Circuit Court of Mercer County Case No. 13-C-364

St. Francis Hospital

CHARLESTON – A man is blaming a physician after he claims he was negligent and failed to properly care for him.

Dr. Shawn Thomas was named as a defendant in the suit.

On Dec. 2, Donald L. Weekley Jr. presented to the emergency room at St. Francis Hospital and again presented to the same emergency room on Dec. 4, and was diagnosed with non-obstructive kidney stones of the left and right kidney, according to a complaint filed Sept. 12 in Kanawha Circuit Court.

Weekley claims on Dec. 7, Thomas performed an operative procedure consisting of a cystoscopy, left ureteroscopy, laser lithotripsy, stone extraction with stent insertion and urethral dilation.

During the procedure, a perforation occurred and Thomas placed a stent in Weekley, with a string left on the end of the stent, according to the suit.

Weekley claims he was discharged later that day with a pain level being 10 out of 10 and on Dec. 9, he returned to St. Francis with pain, hematuria and dysuria.

The next day, Weekley was taken to an outpatient surgery suite at St. Francis by Thomas, where the previously placed stent was removed under IV sedation, according to the suit.

Weekley claims on Dec. 13, he was admitted to St. Francis and a stent was placed on Dec. 15 by another physician.

On Dec. 28, the second stent was removed from the left kidney and on Jan. 17, a CT scan indicated that the left ureter was still obstructed, according to the suit, and on Feb. 15, a physician attempted to insert a double J stent, but was unsuccessful, as the ureter appeared to be blocked.

Weekley claims he was transferred to Charleston Area Medical Center and the care of Dr. James Tierney, who performed multiple procedures from February through May, including placement of a nephrostomy tube, additional stent placements and removals and on March 5, a false passage of the UBJ was found.

Thomas negligently, carelessly, recklessly, incompetently and in a deviation from the normal standard of medical care, failed to properly care for Weekley, according to the suit.

Weekley is seeking compensatory damages. He is being represented by Robert V. Berthold Jr. and Holly G. DiCocco of Berthold Law Firm PLLC.

The case has been assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 13-C-1736

Calwell

CHARLESTON – A couple are suing Hospital Development Co. for injuries allegedly caused by its facility and employees.

Hospital Development Co. is doing business as Roane General Hospital. Drs. Daniel B. Prudich and Maria L. Kessell were also named as defendants in the suit.

On Aug. 18, 2011, Sandra Ellis presented to the emergency department of Roane General, complaining of pain and swelling in her right lower leg over the previous five to seven days, according to a complaint filed Sept. 12 in Kanawha Circuit Court.

Ellis claims Prudich treated her and diagnosed her with right leg edema and advised her to follow-up with her primary care physician, Kessell.

On Aug. 31, Ellis presented to Roane General to follow up with Kessell and Kessell indicated the presence of peripheral edema and prescribed Ellis a diuretic, ordered an echocardiogram and chest x-ray and instructed her to follow up in one month, according to the suit.

Ellis claims she was examined three times between Sept. 10, 2011, and Sept. 25, 2011, in Roane General’s emergency department or by Kessell, and on Sept. 27, 2011, a referral was given for a vascular surgeon named Dr. Patrick Stone, as Ellis’ “current visit problem” was indicated to be Peripheral Vascular Disease.

On Oct. 17, 2011, Ellis presented to Charleston Area Medical Center’s emergency department, complaining of foot pain and a foot infection, according to the suit.

Ellis claims an examination of the right foot showed “clear evidence of deep necrosis with foul smell coming from her foot.”

On Oct. 19, 2011, a below-the-knee amputation was performed on Ellis’ right leg and on Oct. 24, 2011, an above-the-knee amputation of her right leg was performed, according to the suit.

Ellis claims the defendants owed her a duty to skillfully, prudently and thoroughly diagnose, care, treat, advise and observe her in such a manner as would reasonably prudent physicians who were confronted with and by similar conditions and circumstances.

Ellis and her husband, Paul Ellis, are seeking compensatory damages with pre- and post-judgment interest. They are being represented by W. Stuart Calwell Jr., Melissa H. Luce and Benjamin D. Adams of the Calwell Practice PLLC.

The case has been assigned to Circuit Judge Jennifer Bailey.

Kanawha Circuit Court case number: 13-C-1737

MacCallum

LOGAN – Boone County residents are suing over claims that a local medical center provided inadequate medical care.

Phyllis Ann Hill and Norman Hill filed a medical malpractice lawsuit Aug. 30 in the Circuit Court of Logan County against Logan General Hospital LLC, doing business as Logan Regional Medical Center.

The plaintiffs allege the defendant and Dr. Shook negligently performed Phyllis Hill’s foot surgeries on May 13, 2011, and Sept. 30, 2011.

The defendant negligently performed the surgery, failed to keep proper records, failed to follow up after complications, failed to perform conservative therapy, failed to properly care for infection and refused to perform ordered x-rays on Phyllis Hill’s foot because her hospital bill was not paid in full, according to the complaint.

As a result of the defendant’s negligent actions, Hill suffered further injury, it is alleged.

The plaintiff is seeking an undisclosed amount of damages, including loss of consortium damages. She is being represented by Madison attorney Judson C. MacCallum of Conaway & Conaway PLLC.

Circuit Court of Logan County Case No. 13-C-223.