Weber denied chance to depose doctor over scant med mal certificate

Steve Gonzalez May 1, 2008, 5:12am



Madison County Circuit Judge Barbara Crowder denied Bruce T. Vest, Jr., M.D.'s motion to compel the deposition testimony 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 alleged Edwin Season, M.D. has a history of providing "baseless, unreasonable and inadequate" certificates of merit.

Weber was challenging 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.

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, 2006, Tamara Greco, a 36-year-old mother of three, was seen by Vest on April 30, 2004, for treatment of a sprained ankle. 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, the complaint states.

Weber argued that the plaintiff attorney used "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 in his motion.

According to Weber, a state statute defining the matter 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."

He claimed the plaintiff attorney attempted to "thwart" the statute's legislative intent.

Weber also claimed the statute goves 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 argued he had the right to depose Season to discover the care exercised in evaluating the case and to determine the basis for his conclusions.

Weber also argued that unless he got to depose Season, Vest would be unable to meaningfully participate in any mediation without learning the basis for Season's certificate.

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

Weber also claimed Vest had 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."

Plaintiff attorney Burton Newman of St. Louis disagreed.

Newman argued that Weber's motion was baseless and wholly unsupported by the record and denied "with the strongest possible force" that Season or he conducted themselves in any improper way.

He also argued that just because Vest disagrees with Season's report does not entitle him to depose him.

Newman further argued that the statute to which Weber refers is a pleading requirement designed to reduce a frivolous, not a substantive defense.

He added that even if a written report subsequently proved to be mistaken or unsupported by the evidence, it would not provide a basis for dismissing the lawsuit.

Newman said if Crowder were to permit the deposition of Season without first finding his affidavit was deficient, she would be allowing an irrelevant and wasteful level of sub-discovery never contemplated by the statute or its purposes.

In her two-page written order issued April 22, Crowder ruled that since there have been no motions filed alleging the affidavit was untrue or not based upon reasonable cause, she was denying Vest's motion.

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.

Greco is seeking at least $100,000 in damages.

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