W. Va. Judge Rejects Faked Injury Defense in Med Mal Lawsuit

August 14, 2007

A West Virginia judge upheld a $1.7 million malpractice judgment against a doctor who claimed the plaintiff had faked the injury, ruling that surveillance footage contradicted the allegation.

Randolph County Circuit Judge John L. Henning’s order, filed earlier this month, reaches the “undeniable conclusion” that Dr. Kenneth D’Amato’s allegation was without merit. Henning’s ruling came in a lawsuit filed by Melvyn and Betty Heckel.

Melvyn Heckel, a 67-year-old building contractor, and his wife alleged D’Amato performed spine surgery in 2002 that left him legally blind.

A jury ruled D’Amato negligent in 2006 and awarded damages. Lawyers for the osteopath asked Henning in January to dismiss the judgment, alleging Melvyn Heckel had defrauded the court.

D’Amato’s lawyers presented about 50 hours of surveillance video from an Elkins construction site to argue that Heckel does not have any visual impairment.

Henning heard from expert witnesses from both sides and watched all surveillance footage from the site.

“Defendant’s briefs and filings describe an image of the plaintiff engaging in all the work a man could possibly accomplish on a construction site with no physical limitations,” the ruling said. “The footage clearly shows that he is disabled and unable to contribute in any significant fashion, even as a laborer.”

The judge noted that while legally blind, Heckel had explained to the jury at trial that he had limited vision. D’Amato did not dispute Heckel’s level of vision during the trial, focusing instead on whether he had given informed consent, the order said.

Henning also said D’Amato’s lawyers failed to realize or admit that Heckel has special tools and even a wristwatch designed for the visually impaired.

The judge also said D’Amato had “failed to include footage of the plaintiff struggling to exit and walk down steps from a public building in Elkins with the assistance of his wife.”

“John Henning is a long-serving trial judge, considered very conservative,” said Kent Carper, one of the Heckel’s lawyers and a Kanawha County commissioner. “His opinion speaks for itself, but found absolutely no merit to their allegation against the plaintiff.”

Lawyers for D’Amato were not immediately available for comment Thursday. They have appealed the case to the state Supreme Court.

The verdict had been $1.86 million, and included $660,000 for such “non-economic” damages as pain and suffering. These were reduced to $528,374 to reflect both a related settlement from Davis Memorial Hospital in the case and a $500,000 cap on such damages.

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