W. Va. Justices Refuse Appeal in $1.7M Medical Malpractice Case

October 31, 2007

A $1.7 million judgment against an Elkins doctor who allegedly blinded a patient during spine surgery will stand after the West Virginia Supreme Court unanimously declined to hear the physician’s appeal.

Lawyers for Dr. Kenneth D’Amato alleged several errors during last year’s trial that ended with a jury verdict in favor of Melvin and Betty Heckel.

The 67-year-old contractor and his wife alleged D’Amato botched the 2002 elective procedure, leaving him blind.

D’Amato’s petition for appeal also argued that Randolph County Circuit Judge John L. Henning wrongly calculated the final judgment. The original $1.86 million jury verdict was offset by $528,374 from Davis Memorial Hospital, which settled out of the case, and reduced by the state’s limit on such “non-economic” damages as pain and suffering.

The Supreme Court turned down the petition late last week.

D’Amato’s lawyers had also alleged that Heckel was faking his injury, and presented 50 hours of surveillance video from an Elkins construction site. But Henning concluded the video showed Heckel was disabled, even though the defense omitted footage showing him struggling at such tasks as walking down steps.

Heckel’s “whole life changed over this, but he’s prepared to move forward,” said Kent Carper, a lawyer for the couple.

D’Amato’s lawyers did not immediately respond to a phone message requesting comment Monday.

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