West Virginia Business Litigation : West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

My thanks to Mack Sperling, who writes the North Carolina Business Litigation Report, for directing me earlier this month to a Fourth Circuit decision, which involves a dispute over a  physician’s practice privileges and the Health Care Quality Improvement Act of 1986.  Wahi v. Charleston Area Medical Center, Inc., 2009 WL 962310 (4th Cir. 2009).

Fellow Charleston blogger Bob Coffield, author of the Health Care Law Blog, wrote this thorough analysis of the decision,  As Bob explains, this decision makes several points that should be of particular interest to lawyers who represent hospitals and others involved in the peer-review process. 

Bob's firm represented the hospital in the appeal, and Kenneth W. Starr, former solicitor general and current dean of the Pepperdine University School of Law, argued on behalf of Dr. Wahi. 

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 You may have thought -- or hoped -- that you wouldn’t hear any more about John A. King, the discredited surgeon and defendant in 124 malpractice lawsuits that have resulted in settlements of more than $100 million.  But you would not be so lucky.

According to Paul J. Nyden’s article in the February 1 (Charleston, WV) Sunday Gazette-Mail, a qui tam (whistleblower) complaint filed on May 12, 2006 alleged that King performed unauthorized experimental surgeries on 26 of his patients. 

On November 17, 2008, United States District Judge John T. Copenhaver, Jr. unsealed the complaint, which was filed in the Southern District of West Virginia against medical device manufacturer EBI, L.P. on behalf of eight of King’s former patients whose medical expenses were submitted for payment to or paid by Medicare or Medicaid.   United States ex rel. Lisa Coiner v. EBI L.P., Civil Action No. 2:06-CV-0353.

Here is the complaint, which alleges that:

In sum and substance, King and [his former physician assistant David] McNair took studies that failed in laboratory animals, and then, without any reasonable basis to conclude that they would be successful, began to experiment on humans.

The complaint also alleges that EBI “established a system of kick-backs to physicians who prescribe EBI Ionic Spacers.  These kick-backs are administered by the EBI sales department, and frequently disguised as consultantships although unrelated to any scientific or educational activity.  The kick-backs have taken the form of cash payments, travel benefits, entertainment and other benefits.”

And as if all of that weren’t enough, the complaint alleges that King and McNair failed to obtain the patients’ informed consents and institutional review board approval that are required for an experimental treatment protocol, such as the surgery that King and McNair performed. 

According to the docket, the United States is not intervening in the case at this time, and EBI’s answer is due on or before March 10.

That story was followed by one on February 2, in which Nyden reported that the United States Trustee for King’s bankruptcy in Alabama had filed a notice of intent to abandon claims made by King in his lawsuits against various defendants, including HCA, Putnam General Hospital, individual physicians, and corporate officials.  That means that King will not be able to recover from the defendants in those actions. 

Additionally, a hearing was scheduled for yesterday before United States Bankruptcy Judge Thomas Bennett on King’s defense to the Internal Revenue Service's claim that he owes more than $1 million in unpaid taxes. 

Then, Nyden reported on February 4 that, in what has become a routine occurrence, King has sued the lawyer he had hired to represent him in lawsuits against three other law firms and HCA.

Representing himself this time, King filed suit on January 28 against Lance Rollo in United States District Court for the Northern District of West Virginia.  Here is the complaint, in which King alleges claims for negligence/malpractice and breach of contract by Rollo in representing him against his former lawyers and HCA (I have omitted the 27 exhibits attached to the complaint).  King v. Rollo, Civil Action No. 1:09-CV-0015.

King seeks $25 million compensatory and $25 million punitive damages from Rollo, but hasn’t attempted to serve the complaint.

The Credentialing Resource Center Blog points out that at this rate, King won't have anyone left to sue,  And the NY Medical Malpractice and Accidents blog is right that you can't make this stuff up.

Finally, in a bit of good news, Nyden reported yesterday that the Pennsylvania Board of Osteopathic Medicine has scheduled a hearing on April 6 to determine whether to revoke King's license.  King’s defense to the proceeding is that Pennsylvania cannot revoke his license, as he had already voluntarily withdrawn it in October 2008.  Fortunately, the withdrawal of his license does not prevent the Board from revoking it. 

King has already lost his medical licenses in Alabama, Indiana, Michigan, Ohio, Texas, Virginia, and West Virginia; his licenses expired without any formal action in Georgia and New Jersey.  But incredibly, he still holds licenses in Florida, New York, and Tennessee. 

 

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    Charleston Area Medical Center’s Board of Trustees has voted to pay $11.5 million to Dr. R. E. Hamrick, Jr. by September 5, and bring an end to his lawsuit against the hospital arising from the revocation of his privileges in 2004 when he attempted to self-insure his medical professional liability coverage.   Here is Eric Eyre's article in yesterday's Charleston Gazette.

    Last month, the Circuit Court of Kanawha County reduced the jury’s verdict of $5 million in compensatory damages and $20 million in punitive damages to $2 million and $8 million, respectively.  The additional $1.5 million represents interest at 8.25% that has accrued since the verdict in February.  Here are my posts regarding the trial court’s rulings and the original verdict.

    CAMC will pay at least $2 million of the settlement from its cash reserves, but is responsible for payment of the entire amount by the agreed-to deadline.  Whether CAMC's insurance coverage pays any of the settlement is far from certain, considering the declaratory judgment actions filed by two of CAMC’s insurers, which claim that they have no obligation to indemnify CAMC for any payment made to Hamrick.  If the insurance companies prevail in those actions, CAMC will end up paying the entire amount.

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    It turns out that Charleston Area Medical Center is facing two lawsuits over insurance coverage for Dr. R. E. Hamrick, Jr.’s $25 – now $10 – million verdict, not one, as I wrote yesterday. 

    In May, Employers Reinsurance Corporation now known as Westport Insurance Corporation filed a declaratory judgment action in federal court against CAMC and its captive insurer, Vandalia Insurance Company, to determine whether it owes any duty to CAMC.  Employers Reinsurance Corporation v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-CV-0303. 

    ERC reinsures CAMC's $25 million policy with Vandalia, and its policy with Vandalia requires that it be given “prompt, written notice” of any loss, occurrence, claim, event, etc. that has a “reasonable possibility of resulting in a claim for indemnity hereunder.”

    ERC claims that CAMC did not notify it of Hamrick’s lawsuit until February 11, 2008, which was four days after the jury returned its verdict for $25 million.  ERC argues that it did not receive the notice required by its policy with Vandalia and that it is entitled to a declaratory judgment that it has no obligation to indemnify Vandalia for any payments made to CAMC nor any obligation to directly indemnify CAMC.

    Neither defendant has responded to the complaint yet.  Because this action was filed before Executive Risk Indemnity’s lawsuit and involves the same subject matter, the two suits are likely to be consolidated before United States District Court Judge Joseph R. Goodwin. 

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    In February, a Kanawha County (Charleston), West Virginia jury awarded Dr. R. E. Hamrick, Jr. $25 million in compensatory and punitive damages when it determined that Charleston Area Medical Center improperly revoked his privileges and damaged his reputation due to his efforts in 2004 to self-insure his professional liability for $1 million.  Here is my post about the verdict.

    CAMC filed post-trial motions to reduce the verdict and for a new trial, which were argued in April.  Judge Jack Alsop, who is presiding over the case after the seven Kanawha County Circuit Court judges recused themselves, ruled on the motions last week, and offered mixed relief to CAMC.

    In its order granting CAMC’s motion for remitittur of damages, the court found that the compensatory damage award of $5 million “shocks the conscience” and was not supported by the evidence because Hamrick “has invariably admitted he has suffered no pecuniary harm or financial loss as a result of CAMC’s actions.  There was no evidence adduced at trial of any type of emotional distress or physical harm. Dr. Hamrick’s reputation as one of the area’s finest surgeons was minimally reduced, if in any way.”   

    CAMC had requested that the compensatory damages award of $5 million be remitted to $1 million.  The court found that Hamrick had asserted two causes of action, invasion of privacy and defamation, and was entitled to $1 million for each cause of action, and reduced the award to $2 million. 

    The court did not engage in as much analysis of the punitive damages verdict of $20 million, but did find that:

“CAMC’s misconduct [against Hamrick] was not an isolated event as to Dr. Hamrick, but was continual over a period of three to four years. There is limited evidence of any similar misconduct as to the treatment of other physicians with privileges at CAMC. Even with this, the degree of reprehensibility, it does not warrant an award of twenty million dollars in punitive damages.”

The court decided to maintain the same 4:1 ration of punitive damages to compensatory damages, and remitted the punitive damages award to $8 million, for a total award of $10 million.

    In considering CAMC’s motion for a new trial, the court rejected CAMC’s arguments that the jury had a “mistaken view of the case,” that the court improperly allowed Hamrick’s expert to testify, that the court misapplied the law of the case doctrine, that the court allowed testimony regarding alleged profanity about Hamrick, and otherwise denied CAMC the opportunity to present evidence, and denied its motion.  Here are the order denying the motion for a new trial, and the final order, from which either or both parties can appeal.

    CAMC is also fighting another lawsuit resulting from the verdict.  In June, Executive Risk Indemnity, Inc., which reinsures Vandalia Insurance Company, CAMC’s captive insurer, filed a declaratory judgment action in United States District Court for the Southern District of West Virginia, alleging that it has no duty to defend or indemnify CAMC as a result of the verdict.  Executive Risk Indemnity, Inc. v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-CV-00810. 

    Executive filed suit against CAMC, Vandalia, and Employers Reinsurance Corporation, now known as Westport Reinsurance Corporation.  Its complaint also asserts that, if the court finds that coverage is available, Vandalia and Employers Reinsurance Corporation, it is entitled to equitable contribution for all or part of the verdict.  None of the defendants has responded to the complaint yet.

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   A few days ago, I wrote that the Circuit Court of Putnam County had approved three settlements in cases alleging medical malpractice by discredited surgeon John King, and had rejected the parties' requests to keep those settlements confidential.

    Last Thursday, the court approved and made public the terms of nine more settlements, but it appears unlikely that the terms of the settlements of the remaining 58 clients represented by Curry & Tolliver will be revealed.

    Because the parties are not asking the court to make a specific finding in those cases that the settlements are good faith settlements, its approval is not necessary, and those plaintiffs will voluntarily dismiss their claims against the settling defendants.  Here is the notice of presentation of stipulation for and order of dismissal presented by the Curry & Tolliver plaintiffs.

    These are the details of the nine settlements approved last week, as described by Paul J. Nyden in his article in Friday’s Charleston Gazette:

• Lisa and Stephen Coiner, $1.45 million for injuries to Lisa Coiner;

• Linda and Marvin Goodpaster, $1.32 million for injuries to Marvin Goodpaster, including $46,773 set aside for each of two children;

• John and Lisa Hansroth, $1.15 million in a settlement involving injuries from King's surgery on John "Andy" Hansroth, a Charleston Gazette reporter who died in March 2005.  The settlement included money for their three children;

• David and Zamba Holestin: $1.32 million for a failed spinal fusion operation to David Holestin, including $187,915 for one of the couple's two children who was alive at the time of the failed surgery;

• Matthew and April Murphy: $150,000 for injuries to one of their daughters during an operation King performed on her broken arm.  Their daughter suffered no permanent injuries;

• Katherine and Barry Rutledge, $2 million for King's failed treatment of Katherine Rutledge's minor foot problem, which later caused her legs to be amputated; and
  

• Carrie Ann and Mark Triplett, $730,000 for a flawed 2003 operation, which included $70,463 for each of their two children.

    In addition, the court approved two other settlements by King patients whose competency to enter into their settlements had been at issue.  In those settlements, Regina Bird received $2 million and Steven Dingess received $750,000. 

    I realize that the parties may have legitimate reasons for not wanting to disclose the terms of the remaining settlements, but I think that Putnam County Circuit Court Judge Spaulding is correct that the public has a right to know whether these were legitimate cases.  Under these circumstances (did King operate on any patient without committing malpractice?), the court should determine whether every settlement was made in good faith and if so, order the disclosure of its terms.  

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    In March, I wrote that most of the plaintiffs in the medical malpractice actions against discredited surgeon John King had reached settlements with several of the defendants.  Last week, three plaintiffs had their settlements approved by the Circuit Court of Putnam County, West Virginia.  What I find interesting is that Judge O. C. Spaulding refused the parties’ request to keep the amounts of the settlements confidential.   

    Paul J. Nyden wrote about the hearing in last Wednesday’s Charleston Gazette.  In denying the parties' request for confidentiality, Judge Spaulding  noted the publicity and attention that the cases had generated state-wide and nationally, and said that, “the public has a right to know, were these legitimate cases?” 

    You can answer that question for yourself.  These are the settlements that were approved, according to the article:

• $1,083,384 for the estate of Cora Linville, who died three years after her back surgery resulted in multiple infections;
  

• $923,585 for the estate of John Higgenbotham, who was 91 when he died.  Higgenbotham never woke up after King performed a massive spinal operation on his back; and 
  

• $423,585 for the estate of Leatha Johnson, who died less than three months after King performed the first of four surgeries to repair fractures and counter infections.  
  

    Court approval for these settlements was necessary because the Supreme Court of Appeals of West Virginia held in Estate of Postlewait ex rel. Postlewait v. Ohio Valley Medical Center, Inc., 591 S.E.2d 226 (W.Va. 2003), that West Virginia Code § 55-7-7 “clearly contemplates and requires that all compromises of wrongful death actions be submitted to the circuit court for approval.”  

    Another hearing is scheduled for May 22 for court approval of nine settlements of plaintiffs who were minors when King performed surgery on them.  

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    In an order entered on Monday, the Supreme Court of the United States rejected Camden-Clark Memorial Hospital’s petition for a writ of certiorari from the Supreme Court of Appeals of West Virginia’s decision not to review the jury’s verdict of $6.5 million in a medical malpractice action filed against the hospital.  Camden-Clark Memorial Hospital v. Boggs, Bernard, No. 07-812.  Here are my posts from last September about the hospital’s petition for appeal and the Supreme Court of Appeals’ refusal thereof. 

    Reporter Andrew Clevenger has an article about the case in today’s Charleston (West Virginia) Gazette, in which he mentions that a “countersuit” filed by the hospital against Bernard Boggs, alleging that Boggs’ original lawsuit was frivolous, is still pending.  It seems like a verdict for $6.5 million in the underlying action, plus sanctions in the amount of $1.3 million, would prove that Boggs' lawsuit had merit.  

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    There have been some significant developments this week in the medical malpractice lawsuits against discredited surgeon John A. King, which were removed to federal court as a result of the bankruptcy petition filed by King last year in Alabama.

    On Wednesday, the plaintiffs represented by the firm of Curry & Tolliver informed the United States District Court that they had negotiated the settlement of their claims with several parties, including David McNair (King’s physician’s assistant) and the corporate entities consisting of Teays Valley Health Services, Inc. d/b/a Putnam General Hospital, HCA, Inc., Healthtrust, Inc.-The Hospital Company, and Hospital Corp., LLC.  The plaintiffs’ motion to lift the stay also identified several cases in which further proceedings, such as the appointment of a guardian ad litem or court approval of a wrongful death settlement, are necessary. Here are the plaintiffs’ motion and Paul J. Nyden’s article in yesterday's Charleston Gazette.   

    The motion did not disclose the amount of the settlements, and informed the Court that Curry & Tolliver’s clients’ claims against King, Robert Edwards a/k/a Bob Edwards, Wright Medical Technology, Inc., and EBI L.P. would continue.  The latter two defendants manufactured spinal implant devices used by King in some of the surgeries.  Additionally, the claims of the remaining 54 plaintiffs, who are represented by other counsel, will continue against all defendants, although Nyden reported that those cases could soon settle against HCA and Putnam General.

    On Thursday, the district court granted the plaintiffs’ consolidated motion to remand the actions to the Circuit Court of Putnam County, West Virginia, finding that equitable remand was appropriate, even though the civil actions are related to King’s Chapter 7 bankruptcy and therefore conferred subject matter jurisdiction on the Court under 28 U.S.C. §§ 1334(b) and 1452(a).  Here are Judge John T. Copenhaver, Jr.'s Memorandum Opinion and Order and Nyden’s article in today's Gazette.

    The district court acknowledged that the defendants’ concerns about “an irremediable taint present in the jury pool” were “no small matter,” but found that other factors argued in favor of remand.  Specifically, the court found that remand “presents no significant [bankruptcy] estate administration concerns.”  Second, although “some discrete issues respecting federal law have arisen in this action and mass removal,” those issues are “quite limited[,]” (compared to the number of issues that are “routine factual questions presented under state law negligence and damage theories that state circuit courts encounter with some frequency.”  Third, the court recognized the extensive efforts already undertaken by the state court judges to prepare the cases for trial: “A forum switch at this juncture would require perhaps multiple judicial officers in this district to familiarize themselves with the voluminous record and rulings made in the circuit court.  Comity is necessarily threatened in such a setting.”  Thus, the court concluded “that a majority of the applicable factors weigh[ed] in favor of equitable remand[,]” and remanded the 124 actions to circuit court.

    Finally, one other story in the Gazette this week about King discussed a development, which, because of its relative insignificance, I have saved for the end of this post.  According to Nyden’s article in Wednesday’s edition, King has applied to become a real estate appraiser in Tennessee, Before you start laughing, his application “for trainee registration and exam approval” was approved unanimously by the Tennessee Real Estate Appraiser Commission at its December meeting.  King’s plan is to work as a physician for 10 to 12 days per year and spend the balance of the year working as an appraiser.

    Apparently, King did not tell the commission about the medical malpractice lawsuits pending against him in West Virginia or Alabama, but, according to the minutes of the December meeting, did explain that he had to leave West Virginia because “’he was a whistleblower against a group of physicians who were participating in health-care fraud[,]’” who “’made false accusations against him to the West Virginia Medical Board that led to other medical boards suspending his license.’”

    Not surprisingly, the commission’s administrative director has sought guidance from the national Appraisal Foundation about how to process King’s application.

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    I think I’m going to avoid predicting how an appellate court will rule in a particular matter, and instead focus on the issues presented.  Yesterday, I wrote that Camden-Clark Memorial Hospital’s petition for appeal from a $1.3 million sanctions award was being considered by the Supreme Court of Appeals, and that I thought that the Court would accept the petition.

    According to the Court's website today, the Court refused the petition by a vote of 5-0.

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    Last spring, the Circuit Court of Wood County, West Virginia awarded $1.3 million in sanctions against Camden-Clark Memorial Hospital and its lawyer for their alleged misconduct before and during the trial of a medical malpractice action (which itself resulted in a verdict of $6.5 million).

    The Supreme Court of Appeals today considered the hospital’s petition for appeal from the sanctions award.  The Court did not have the vote posted on its website by the end of the day, but it should be posted tomorrow.  Here are the hospital’s petition for appeal and the plaintiff’s response in opposition, courtesy of plaintiff's counsel, Chris Regan.

    Even though the Court rejected the hospital’s petition for appeal from the underlying malpractice verdict, I think the Court will accept this petition because of the amount of the award and in order to review the alleged (mis)conduct at issue in the case.  It is rare enough in West Virginia for a trial court to award sanctions, but to do so in this amount is startling.  

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    A Kanawha County (Charleston), West Virginia jury has awarded $5 million in compensatory damages and $20 million in punitive damages to a surgeon who claimed that Charleston Area Medical Center damaged his reputation and improperly revoked his privileges over a dispute about his professional liability coverage.  CAMC has promised to appeal the verdict.  Here are Eric Eyre’s article about the verdict in yesterday’s Charleston Gazette and his article from last week when the trial began.

    The trouble started in 2004 when Dr. R. E. Hamrick, Jr. decided to self-insure his professional liability coverage by placing $1 million in a trust account.  CAMC challenged his right to do so, and revoked his privileges on September 10, 2004.  Hamrick appealed the revocation, and the Supreme Court of Appeals of West Virginia issued a preliminary injunction on September 16, 2004, ordering CAMC to reinstate his privileges, and subsequently entered a standing order that enabled him to continue to care for his patients.

    Hamrick filed suit against CAMC, alleging, inter alia, that it engaged in misconduct regarding his professional liability insurance and damaged his reputation by revoking his privileges.  In 2005, the circuit court ruled that CAMC failed to show that Hamrick’s self-insurance was actuarially unsound or violated the Medical Professional Liability Act, and granted summary judgment in his favor.  The Supreme Court voted 5-0 not to hear CAMC’s appeal.

    In 2006, CAMC changed its policy to allow physicians to insure themselves, and the West Virginia Legislature enacted § 55-7B-12 of the Medical Professional Liability Act, which authorizes a physician to self-insure by establishing an irrevocable trust of not less than $1 million.

    Assuming that the judgment order is entered without too much delay, CAMC's petition for appeal will be considered during the Supreme Court's Fall Term, which starts in September. 

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    The focus of the medical malpractice litigation against discredited surgeon John A. King has moved to federal court as the parties deal with the effect of King’s bankruptcy.  Here is my post from last week about the removal to federal court of some (as of that point) of the cases against King.

    Last week, United States Bankruptcy Judge Thomas B. Bennett (who formerly practiced in Charleston, West Virginia) of the Northern District of Alabama granted the motions filed by eight plaintiffs and lifted the automatic stay against litigation in their cases against King that had been pending in the Circuit Court of Putnam County, West Virginia.  King consented to the stay being lifted in the cases.  Here are one of the motions to lift the stay and the order granting the motion.

    Yesterday, Teays Valley Health Services, LLC f/k/a Teays Valley Health Services, Inc. d/b/a Putnam General Hospital, HCA Inc., Healthtrust, Inc.-The Hospital Company, and Hospital Corp., LLC, who are also defendants in the lawsuits against King, filed motions in the first ten cases set for trial (which include the eight cases in which the plaintiffs filed their motions) to lift the automatic stay in order to pursue their cross-claims against King.  Here is one of the motions filed by the defendants.  The defendants’ motions have been set for a final hearing on January 17, 2008.

    Meanwhile, in federal court in West Virginia, the defendants have removed the 124 cases (121 cases according to the plaintiffs) against King to the Southern District at Charleston, where they have been assigned to Judge John T. Copenhaver, Jr.  Judge Copenhaver conducted a case management conference on December 20 and entered this order on December 21, which designated one of the cases as the lead case and established a briefing schedule for the plaintiffs’ consolidated motion to remand and the defendants’ response.  Here are the plaintiffs’ motion to remand and memorandum in support, which were filed today.  The defendants’ response is due by January 28, 2008, and the plaintiffs’ reply is due within ten days thereafter.  Judge Copenhaver’s order also stays all of the cases involved in the removal, which means all of the cases against King.

    In support of their motion, the plaintiffs argue that the court lacks jurisdiction under 28 U.S.C. § 1452(a) (regarding the removal of claims related to bankruptcy cases) and alternatively because of principles of abstention and equity.  I expect that the court will rule promptly on the plaintiffs' motion, probably in late February or early March.  If the court grants the motion to remand, then the first group of cases can be rescheduled for trial, as the Bankruptcy Court has lifted the stay in those cases and there is no other impediment (at this point) to trial. 
 

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    A few days ago, I wrote that John King, the discredited surgeon who practiced at Putnam General Hospital, had filed his bankruptcy schedules, which showed that his only asset is a 1993 Volvo with a value of $500.

    I understand that counsel for some of the plaintiffs in the medical malpractice actions against King had already moved the Circuit Court of Putnam County to lift the stay imposed by King's bankruptcy and had scheduled a hearing for December 20.  Last week, though, the defendants removed several of the actions to federal court on the grounds that claims or causes of action related to a pending bankruptcy case may be removed pursuant to 28 U.S.C. § 1452(a).   Here are the removal petition and an exhibit that have been filed in one of the cases against King. 

    At this point, the plaintiffs' remedy is to move to remand the actions to state court.  That motion must be filed within 30 days of the filing of the removal petition, unless the basis for the motion is that the federal court lacks subject matter jurisdiction, which may be raised at any point prior to final judgment.

    I noticed that in King's bankruptcy petition and his schedules, he identified himself as John King, and not as Christopher Wallace Martin, which has been his name since he legally changed it in 2006.  But according to Paul J. Nyden's story in the Sunday Gazette-Mail, King has changed his name back to John Anderson King, based on a November 14 filing in the Jefferson County (Alabama) Probate Court.  Apparently, King did not give any reason for this change, unlike the one last year, which he claimed was necessary because he was the victim of identity theft perpetrated by a former co-worker.

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    After filing his emergency Chapter 7 bankruptcy petition on November 21 in United States District Court for the Northern District of Alabama, Dr. John King filed his schedules on Tuesday, and listed his only asset as a 1993 Volvo, estimated value $500.  Here are King's bankruptcy petition and the schedules of assets and liabilities.

    Last month, I wrote about the possibility of King filing for bankruptcy and the effect that the filing would have on the medical malpractice trial that was set to begin, at that point, on November 27, which was changed to December 3.    

    Paul J. Nyden wrote about King's bankruptcy filing in yesterday's Charleston Gazette, and pointed out that while King identified his sole asset as the Volvo on the schedules (which must be verified as true and correct under penalty of perjury), he described his assets very differently in a hearing last year before the Circuit Court of Putnam County, West Virginia (where 122 medical malpractice cases are pending against King and other defendants).  

    At that time, King testified under oath that "he had assets in 11 different offshore and domestic accounts.  His offshore assets were contained in a limited liability company and in a trust fund established in San Jose, Costa Rica.  King testified he also held assets in nine other trusts and accounts, four of which were based in Nevada, including an 'irrevocable life insurance trust.'  King's accounts included: the Bone Maker Trust, the Bone Crusher Trust, and the Bone Lover Trust." 

    So what happened to those assets and trusts?  King didn't list them on his schedules.  And although King has changed his name to Christopher Wallace Martin, he did not mention that name anywhere in his filing.  In any event, the immediate effect of King's filing is to stay the pending malpractice cases against him for 90 days, and perhaps longer. 

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    On Wednesday, Charleston Gazette reporter Paul J. Nyden wrote that the first medical malpractice trial against Dr. John King would start on November 27 in Putnam County, despite a request by Putnam General Hospital to change the venue.

    At a hearing on Tuesday, Circuit Judge O. C. Spaulding declined to move the trial, but acknowledged that continued publicity could require a change of venue.  PGH also urged the court to reverse the determination that punitive damages could be awarded against the hospital, as a result of the verdict earlier this year when PGH and its parent, HCA, were found to have negligently hired and credentialed King as an orthopedic surgeon.  Spaulding upheld the verdict, which means that punitive damages are available to the plaintiffs in the 122 pending cases. 

    Then, another article by Nyden in yesterday’s Saturday Gazette-Mail described a development that could affect the cases, at least temporarily.  At a previously scheduled pre-trial hearing on Friday, Judge Spaulding reported that King’s lawyer had contacted him and indicated that King intends to file for personal bankruptcy, perhaps as early as this coming week.  As a result, Spaulding postponed the trial scheduled for November 27 until December 3.

    Federal bankruptcy law would give King an automatic stay of at least 90 days, and perhaps considerably longer.  The plaintiffs’ lawyers could move to lift the stay in order for the cases to proceed, but I think the bankruptcy court would likely keep the stay in effect.

    I will post King’s bankruptcy petition as soon as it is available.  At this point, it’s impossible to know his financial condition and whether his decision to file for bankruptcy is simply intended to delay the trial or is motivated by some other consideration.  I doubt that the plaintiffs have ever expected to collect anything from King personally.  With 122 cases, many of which present absolutely egregious instances of malpractice, any meaningful recovery for the plaintiffs would have to come from the other defendants, including PGH and HCA. 

    Spaulding has scheduled another pre-trial hearing for November 28 and will begin jury selection on November 29, unless the proceedings are stayed by King’s bankruptcy.  More trials are scheduled to start in January 2008, which would also be affected by any filing.

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    In a ruling issued last month, the Supreme Court of Appeals of West Virginia ruled that a circuit court should have given the plaintiffs the opportunity to amend their complaint against two local hospitals in accordance with the West Virginia Medical Professional Liability Act (MPLA), rather than suffer the dismissal of their lawsuit for failure to comply with its provisions.  Blankenship v. Ethicon, Inc., 2007 WL 30344262 (W.Va.).

    In 2003, the plaintiffs filed suit against several defendants, including Charleston Area Medical Center and Herbert J. Thomas Memorial Hospital, resulting from the implantation of contaminated sutures.  The plaintiffs asserted several causes of action against the defendants, including product liability claims for negligence, strict liability, and breach of express and implied warranties, violations of the West Virginia Consumer Credit and Protection Act, and the intentional infliction of emotional distress.  The plaintiffs sought compensatory and punitive damages and equitable relief in the form of an investigation by the hospitals to investigate and determine “what patients were implanted with the Vicryl sutures and to then inform the patients so identified of the defective condition of those sutures.”

    The hospitals alleged that any claims against them must be pled according to the MPLA, which required the plaintiffs to obtain a certificate of merit for their claims and to provide the hospitals with pre-suit notice of the action. The hospitals moved for summary judgment on the grounds the plaintiffs’ claims were barred by their failure to comply with the MPLA.

Continue Reading...

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    In the Saturday Gazette-Mail (Charleston, West Virginia), Tom Searls has a nice recap on Camden-Clark Memorial Hospital's appeal to the Supreme Court of Appeals from a $6.5 million verdict in a medical malpractice trial.  I wrote yesterday that the Court rejected the petition by a vote of 3-2.

    Also in the paper is an article on Marshall University's decision to start disciplining students who are accused of downloading songs illegally.  Marshall's decision was apparently prompted by the lawsuits filed by some record companies against two students, which I wrote about earlier today.  Although 20 Marshall students received pre-litigation settlement letters from the Recording Industry Association of America (RIAA) in February, and nine more received them last month, Marshall had not previously taken any disciplinary action.  According to Stephen Hensley, the dean of student affairs, who is quoted in the article, the students' use of Marshall's network to download and/or distribute the songs violates the university's code of conduct and carries the risk of disciplinary action.

    Marshall needs to be careful in how it proceeds.  It has an interest in upholding its code of conduct and giving students a disincentive from engaging in similar conduct, but it cannot and should not rely solely on the RIAA's allegations against a student as the basis for any disciplinary action.  As noted in a 2005 post in the blog, Ars Technica,

But the RIAA has been wrong before, as it was in its 2003 suit against Sarah Seabury Ward, a sixty-something sculptor who was accused of downloading gangsta rap. The suit was eventually withdrawn, but the case (and others like it, including one against a dead grandmother) does shed some doubt on the RIAA's ability to correctly identify the infringing party.   With Santangelo's case now headed for trial, a judge's ruling may provide more clarity about what the RIAA can and cannot do in its war on musical piracy.

    There is also an equal protection issue.  It isn't clear from the Gazette-Mail article whether Marshall is going to discipline only the two students who have been sued or the nine who received the RIAA's pre-litigation settlement letters.  But if it's going to act against the nine who received the letters last month, what's it going to do about the 20 students who received the letters in February?   Dean Hensley's explanation that, "We were new at it then, and we're not so new at it now," isn't very reassuring. 

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    As a follow up to yesterday's post, the Supreme Court of Appeals refused, by a vote of 3-2, Camden-Clark Memorial Hospital's petition for appeal from an adverse jury verdict of $4,834,380.00, which was rendered last year in a medical malpractice case. 

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    Yesterday on the Supreme Court of Appeals' motion docket, Camden-Clark Memorial Hospital presented its petition for appeal from a verdict in an action alleging wrongful death due to medical malpractice.  In March 2006, the Wood County jury returned a verdict of $6.5 million, which was subsequently reduced to $4,834,380.00 to reflect an offset from a settlement with another party.   Bernard Boggs, Administrator v. Camden-Clark Memorial Hospital Corp., Nos. 063408 and 070578. 

    In addition to the jury verdict's in the underlying action that was before the Court yesterday, this is the case that also resulted in an award of sanctions against the hospital and its counsel for more than $1.3 million a few months ago.

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    I have written on several occasions about the medical malpractice cases that are pending against Dr. John King and Putnam General Hospital, where he was employed from November 2002 until June 2003.  In July, a jury found that Putnam General Hospital and its parent, HCA, are liable for negligently hiring and credentialing King to perform orthopedic surgery.  I also wrote about a video that was mysteriously posted on YouTube, which purported to contain clips from certain plaintiffs' depositions followed by clips from surveillance videos.

    Two days ago, In the Sunday Gazette-Mail (Charleston, WV), Paul J. Nyden wrote that King has sued John Fitzpatrick and John Jessee, two of the lawyers who have represented Putnam General and HCA in the litigation, and their firm, LeClair Ryan.  Jessee still practices at the firm, but Fitzpatrick left earlier this year and joined Wheeler Trigg Kennedy LLP in Denver.  The suit was filed in United States District Court for the Northern District of Florida.  King v. LeClair Ryan, et al., Civil Action No. 5:07-CV-00112-RS-AK.

    In King's complaint, which is accompanied by 17 exhibits, he basically alleges that the  defendants' defense of the hospital has adversely affected his ability to practice medicine and has been responsible for the adverse publicity he has received.  The exhibits include copies of newspaper articles, correspondence, and pleadings from the underlying malpractice litigation.    (Although King has legally changed his name from "John Anderson King" to "Christopher Wallace Martin," he identifies himself in the complaint as "John Christopher King.")

    Counsel for John Jessee today filed a motion to dismiss and supporting memorandum on the grounds that Jessee has not committed any acts that would subject him to the court's jurisdiction, nor does Jessee have sufficient minimum contacts with Florida to support an action against him there.   There have been no responsive pleadings filed by or on behalf of LeClair Ryan or Fitzpatrick. 

    This is not the first lawsuit that King has brought against lawyers who have represented Putnam General Hospital.  King has been a plaintiff in several lawsuits in federal court for the Southern District of West Virginia.  He has sued, in various actions, a wide range of defendants, including multiple lawyers and law firms, Putnam General Hospital, its officers and directors,  the American Osteopathic  Association, the American  Medical Association, and the Daily Gazette Company (which publishes the Charleston Gazette and the Daily Mail).   All of the cases have been dismissed on the defendants' motions, which is the same fate that will befall King's lawsuit in Florida federal court.

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    I wrote last week about the video that was posted on YouTube on June 26, which consisted of clips from depositions of six medical malpractice plaintiffs followed by clips from surveillance videos of five of them, which purport to show contradictions between their testimony and their activities.  The plaintiffs are suing Dr. John King for malpractice.  Also, last week, a jury ruled that the hospital that hired and credentialed King and HCA, its corporate parent, could be defendants in the lawsuits.

    According to a story in the Saturday Gazette-Mail (Charleston, WV), lawyers for HCA sent a letter last Thursday to Putnam County Circuit Judge O.C. Spaulding, in which they denied that their client had anything to do with the video.  The video posted on June 26 came after the circuit court imposed a gag order and sealed the pleadings on June 8.  That order was necessitated, at least in part, by an earlier video posted on YouTube that purported to show surveillance of one of the plaintiffs, but actually was another of a person unrelated to the litigation.  That video had been released by a media consultant retained by the defendants. 

    In the letter, HCA's lawyers advised the court that they had informed their media consultant, who has not been identified, and a group known as the Center for Individual Freedom of the court's June 8 gag order.  However, two other groups, the Evergreen Freedom Foundation and the National Federation of Republican Assemblies, mentioned the June 26 video in e-mails sent to the Associated Press on July 20, in which they decried lawsuit abuse.  A representative of the Republican group denied receiving the video or having any contact with anyone involved in the malpractice cases.

    I think HCA's lawyers' letter raises more questions that it answers.  The video was made by someone who had access to both the plaintiffs' video depositions and their surveillance videos, which would seem to be a pretty small number of people.  And I'm willing to bet that the defendants had not shared the surveillance videos with the plaintiffs.  I suspect that a third party, who was furnished with the deposition videos and the surveillance videos, made the YouTube video and posted it.  The court needs to find out who's responsible so that it can prevent this conduct from continuing to occur. 

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    In June, I wrote about the gag order imposed by Putnam County Circuit Judge O.C. Spaulding in the medical malpractice cases pending against Dr. John King.  The order was prompted, at least in part, by a video that appeared on YouTube, which purported to show one of the plaintiffs pushing a shopping cart, which she apparently had testified she was no longer able to do.  The trouble was the woman in the video wasn't the plaintiff, she was someone unrelated to the litigation.  At a hearing on June 8, the defense lawyers admitted to giving materials to their media consultant, who provided them to (unnamed) third parties.  The court also entered an order, effective June 8, sealing all pleadings filed in the cases.

    Now, according to Associated Press reporter Larry Messina, whose story appeared in yesterday's Charleston (West Virginia) Gazette, on June 26 (more than two weeks after the gag order was entered), another video was posted on YouTube, which consisted of clips from six of the plaintiffs' depositions, followed by clips from surveillance videos of five of the plaintiffs, showing them purportedly engaged in activities they said they couldn't perform.  Messina's attempts to reach the poster were not successful, and I was unable to find the video today on YouTube when I searched for it.  Judge Spaulding is apparently aware of the video, but has not indicated how he intends to proceed.

    Obviously, the video was intended to portray the plaintiffs negatively, but even if its goal was to make them look sympathetic, it is prohibited by the gag order.  Judge Spaulding should make a serious inquiry into how the video ended up on YouTube, and sanction whomever is responsible.  The other Putnam County judge presiding over the King malpractice cases, Edward Eagloski, has already revoked the pro hac vice admission of a Texas lawyer who had appeared on behalf of the defendants, and the same thing could easily happen here.

   

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    This morning's Charleston (West Virginia) Gazette has a story by Paul Nyden about the jury's verdict finding Putnam General Hospital liable for negligently hiring and credentialing Dr. John King.  Nyden points out that Putnam General lost its credentialing files for King, which resulted in an adverse inference instruction being given to the jury (meaning that the jury may infer that because the hospital lost the file, its contents hurt the hospital and helped the plaintiffs).

    Putnam General's lawyer argued in his closing that King had not done anything wrong, which probably came as a surprise to the jurors, who, being from Putnam County, have been exposed to media reports for the past few years about the results of King's brief time at Putnam General, such as patients who had limbs amputated needlessly, patients who had surgeries to implant hardware that had not received FDA approval, and patients left in such precarious positions medically that they literally can't find other doctors to assume their care. 

    The dilemma for Putnam General is that if it argued in this trial that King was a horrible surgeon, it is at least implicitly conceding liability for hiring and credentialing him.  On the other hand, if Putnam General took the approach (which it did)  that it did nothing wrong and would hire King again if given the opportunity, it has no credibility with the jury. 

    Considering that the jury's verdict means that Putnam General is now a co-defendant in 122 medical malpractice suits in Putnam County and could be liable for punitive damages, its exposure (or more precisely, HCA's exposure as the owner of Putnam General) could reach into the tens or hundreds of millions of dollars.

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    Following a two week trial, a jury has determined that Putnam General Hospital is liable for hiring and credentialing Dr. John King, who is a defendant in more than 110 medical malpractice lawsuits.  Last month, I wrote about the lawsuit and the controversy surrounding Dr. King's employment.

    According to the (Charleston) Daily Mail, the jury deliberated for about an hour before determining that Putnam General Hospital (now known as CAMC Teays Valley Hospital) will be a co-defendant with King in 122 lawsuits against him, based on its negligence in hiring him and giving him privileges to perform orthopedic surgery.  The jury also determined that the plaintiffs can seek punitive damages against Putnam General.  The medical malpractice trials start in September.

    This verdict is a blow to Hospital Corporation of America, Inc., which formerly owned Putnam General, and has been trying to put as much distance between itself and Dr. King as possible.  I noted in my earlier post that Judge O. C. Spaulding had ruled that the plaintiffs' lawyers would not be permitted to mention HCA's formerly ownership of Putnam General or that HCA had paid an $840 million fine in December 2000 for alleged unlawful Medicare and Medicaid billing practices. 

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    When West Virginia Governor Joe Manchin underwent a knee replacement last year, he complained afterward that he could not make sense of the medical bills he received, and questioned why a patient couldn't receive one bill that listed all of the providers' charges.

    According to the Charleston Gazette, based on his own experience, Manchin directed the West Virginia Health Care Authority to create a Website that would let consumers know the cost of various procedures.  The result is www.comparecarewv.gov, which permits searches by procedure or by hospital.  For each procedure, the site gives the average facility charge, the average professional charge, and the average total charge (the total of the facility and professional charges).  The type of procedure may affect the number of facilities available.  The site's obvious benefit is that the additional information enables consumers to make more informed choices about their care and treatment, and to weigh factors such as cost and distance.

    And one other feature in particular of the Health Care Authority's own Website, www.hcawv.org, merits a mention.  There is a link to a document repository called Your On-Line Document Archive (Y.O.D.A.), which provides access to many of the agency's filings, such as SEC reports, financial statements, and Medicaid and Medicare cost reports, which can be downloaded as PDFs (or in Excel format, for some of the spreadsheets.)   For example, here is Charleston Area Medical Center's 2006 Financial Disclosure, which details charges, fees and salaries of more than $55,000.

   

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    Over the past couple of weeks, there have been more developments in the litigation against Dr. John King. If his name is not familiar to you, Dr. King was an orthopedic surgeon who practiced at what was formerly Putnam General Hospital (now CAMC Teays Valley Hospital) in Hurricane, West Virginia in 2002 and 2003. (You can Google him and learn much, much more.)

    Although Dr. King only practiced at Putnam General for approximately seven months, he is a defendant in more than 110 medical malpractice lawsuits. The plaintiffs have also made claims against Putnam General Hospital, its former parent, Hospital Corporation of America, Inc., and other corporate entities within the HCA chain. Because of the number of cases and the complexity of the issues, the judges in Putnam County have been holding hearings on a weekly or bi-weekly basis. Continue Reading...

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     A West Virginia state court judge has awarded sanctions of $1.3 million against Camden-Clark Memorial Hospital, located in Parkersburg, West Virginia, and its lawyer for their conduct before and during a 2006 medical malpractice trial. Chief Judge Robert A. Waters of the Circuit Court of Wood County found that the hospital and its lawyer engaged in extensive misconduct in several areas.  A copy of the Court’s 54 page order is here. 

    The Court found that the hospital had:

• defrauded the plaintiff, as found by the jury by clear and convincing evidence;
• violated multiple court orders, as found by the Court on December 19, 2005 (at an earlier hearing);
• made numerous material misrepresentations of fact and law to the plaintiff and the Court, both before and during the trial of the action;
• concealed important evidence until the commencement of trial and even in the middle of trial, including the very documents the hospital had been ordered to produce by the Court;
• destroyed, concealed or altered material evidence in advance of trial, including cardiac monitor strip times and nurse's notes;
• advanced frivolous defenses before the Court; and
• wasted countless hours of the Court's time, as well as that of the plaintiff and his counsel, through all of the above misconduct.

Continue Reading...

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    This is an update to a post last November on www.health-insurance-litigation.com about allegations of patient-dumping by Kaiser Permanente in Los Angeles.  The Los Angeles Times reported on Wednesday that Kaiser has agreed to a settlement of civil and criminal charges brought by the Los Angeles City Attorney.  The first-of-its-kind settlement "requires the HMO to establish new discharge rules, provide more training for employees and allow a well-known former U.S. attorney to monitor its progress."

    Under the proposed settlement, Kaiser will pay a small civil fine and some investigative costs to the city, and make a larger contribution to a charitable foundation.  The pending criminal charges will be dismissed, and Kaiser's compliance will be monitored on an on-going basis. 

    I said it in November, and I'll say it again: you have watch the patient, Carol Reyes, being dumped to believe it.  YouTube has the tape recorded by the "dumping cam" installed by the homeless mission where Reyes was dumped.  The camera was there because the area was such a popular place for hospitals and police departments outside Los Angeles to dump people,

   

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