Weber wants deposition of expert who filed scant affidavit in med mal case

Steve Gonzalez Jan. 11, 2008, 9:30am

Don Weber

Bruce T. Vest, Jr., M.D, has asked Madison County Circuit Judge Barbara Crowder to compel the deposition of a physician who supplied a one-page, 11-line certificate of merit in a wrongful death suit filed against him in 2006.

Represented by former Circuit Judge Don Weber, of counsel for Reinert & Rourke in St. Louis, Vest alleges Edwin Season, M.D. has a history of providing "baseless, unreasonable and inadequate" certificates of merit.

Weber challenges the validity of Season's report.

"Such a perfunctory and conclusory statement is wholly inadequate to inform Defendants of the nature of plaintiff's claims against them," Weber wrote in his motion.

Weber claims he has made repeated requests of the plaintiff's attorney to produce Season for a deposition, but has been denied.

James Greco filed the suit against Vest and Orthopedic & Sports Medicine Clinic alleging the failure to provide anticoagulant therapy to his wife, Tamara, led to her death.

According to the complaint filed in Madison County Circuit Court April 24, Tamara Greco, a 36-year-old mother of three, was seen by Vest on April 30, 2004, for treatment of an injury. According to the suit, she twisted her left ankle and foot the day before her doctor's visit.

James Greco claims his wife told Vest that she was taking birth control pills and was 5-feet, four-inches tall and weighed 230 pounds.

Tamara Greco had a history of two previous fractures and a previous strain to her left ankle, the suit claims.

James Greco claims x-rays were negative and his wife was diagnosed with a sprained left ankle and was treated with the placement of an equalizer brace and was told to call if she had further problems.

Greco then claims his wife revisited Vest on May 5, 2004, with complaints of pain in her left ankle and foot and also pain and burning with numbness to her toes.

Vest diagnosed her as having a "severe" left foot and ankle sprain and was given samples of Bextra and a refill on her Vicodin prescription.

"On May 7, 2004, Tamara Greco suffered a bilateral pulmonary thromboemboli which, according to her death certificate, was due to, or as a consequence of immobility of her left foot," the complaint alleges.

Weber claims after the enactment of 735 ILCS 5/2-622 plaintiff medical malpractice attorneys in Madison County rendered it useless and have "thwarted the legislative purpose of the enactment by using the artifice of employing one doctor to submit an inadequate certificate and then dropping that doctor from the case."

"Such an artifice insulates the Certificate of Merit doctor from any liability or accountability for that doctor's conduct in initiating the expensive and time consuming defense of frivolous medical malpractice claims by local doctors," Weber wrote.

According to Weber, Section 622(e) provides that "allegations and denials in the affidavit, made without reasonable cause and found to be untrue, shall subject the party pleading them or his attorney to sanctions."

Weber also claims Section 622(e) gives the moving party the right to depose and examine any and all reviewing health professionals who prepared reports used in conjunction with an affidavit required by the section.

"Defendants believe the allegations made against them by Dr. Season in the Certificate of Merit and in the complaint to be unreasonable and untrue," Weber wrote. "Dr. Season must be held accountable for his actions."

Weber contends he has the right to depose Season to discover the care he exercised in evaluating the case and to determine the basis for his conclusions.

According to Weber, Madison County Circuit Judge Barbara Crowder entered an order for mandatory mediation which requires all parties to participate in good faith after 90 days of all depositions.

"The mediation order requires Defendants to participate in mediation 'in good faith' despite the fact that Defendants have no basis whatsoever to believe that they did anything wrong in the care and treatment lf Tamara Greco," Weber wrote.

"In fact, Defendants are aware of substantial expert medical opinion proving that their treatment of Tamara Greco in this specific case was proper, timely and appropriate," Weber added

Weber argues that unless he gets to depose Season, Vest will be unable to meaningfully participate in any mediation without learning the basis for Season's certificate.

He also argues that Season must be considered as a "controlled expert witness" since he was paid by plaintiffs to render an expert opinion and therefore are required to produce him for deposition.

Weber also claims Vest has a right to know Season's training, education and expertise in this particular field and other matters.

"Dr. Season has stated he has reviewed the medical records relevant to this case," Weber wrote. "He has knowledge of the facts and circumstances in this specific matter and his deposition is relevant to the case and could also lead to relevant and discoverable information."

James Greco claims that Vest's alleged negligent acts caused or contributed to the death of his wife causing him and his children to suffer a pecuniary loss, funeral expenses, loss of services, companionship, comfort, instruction, guidance, counsel, training and support of Tamara Greco.

He also claims that his wife suffered from conscious pain and suffering until the time of her death as a result of professional negligence.

Seeking at least $100,000 in damages, Greco is represented by David Perney and David Horan of St. Louis.

Crowder has yet to set a hearing on Weber's motion.

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