Doctor seeks new judge
By CHRISTOPHER BOBBY
WARREN – The losing side in a multi-million dollar medical malpractice case wants the trial judge thrown off the case and a replacement jurist to hear remaining post-judgment issues.
An attorney for Dr. Tara Shipman filed the affidavit of disqualification against Common Pleas Judge W. Wyatt McKay recently with the Ohio Supreme Court, citing fallout from a 2010 trial that has caused ”wholesale distrust of the Trumbull County legal system.”
”This erosion in public confidence in the Trumbull County judiciary and Judge McKay has resulted in, but not limited to, public protests, press conferences and other media communications by and on behalf of the Trumbull County medical community,” the affidavit states.
Shipman got hit with the largest amount of civil damages in Trumbull County’s history after a jury returned a verdict of $13.9 million against her Oct. 21, 2010. That was later reduced to $9.7 million.
Plaintiffs in the case were local family members of an 11-year-old Leavittsburg girl who sued the doctor and won after suffering catastrophic medical problems since birth. They were represented by local attorney Martin White and other lawyers.
”Plaintiffs repeatedly have engaged in deceptive manipulations of the law and fact in their arguments and requests for rulings from Judge McKay. In turn, Judge McKay has almost universally accepted these representations at face value, resulting in inexplicable rulings against and irreparable prejudice to Dr. Shipman,” the affidavit states.
McKay declined any comment on the affidavit Wednesday, instead pointing out that he would draft a formal response to the document that would be filed with the Ohio Supreme Court within 15 days.
White said it would be inappropriate for him to comment on the disqualification affidavit that was originally filed in Columbus under seal.
Some doctors have been openly critical of McKay and White, and one year ago, a large group of Warren physicians even wore their white lab coats while staging a press conference to discuss how excessive malpractice insurance premiums – brought on by too many malpractice suits – were driving them to early retirement or to move their practices.
The filing by Shipman’s attorney Joseph Farchione, who is now with a firm in Denver, postpones a status conference in the case scheduled for Friday when more post judgment issues were to be heard. The case is continued indefinitely until the disqualification matter is resolved.
Most recently the 11th District Court of Appeals affirmed McKay, who during prejudgment interest proceedings ordered Shipman’s defense team to turn over certain discovery-related documents from their files for inspection and in advance of a judicially supervised deposition of the doctor and others.
Prejudgment interest in the case is expected to amount to several more millions of dollars.
The appellate court also affirmed and the Supreme Court refused more than once to hear Shipman’s appeal on a $10.5 million bond posted by the doctor’s insurance company in September 2011 to assure a fund that damages could be drawn from.
McKay originally ordered a $14.5 million bond, which the 11th District reduced to $10.5 million while affirming the creation of the bond.
In the original case, the family of Haley Cobb claimed that Shipman’s decision not to perform a Caesarean section led to Haley not receiving sufficient oxygen while in the womb, causing brain injury and ultimately her cerebral palsy.
The family settled for $6.5 million before the trial with another doctor, who has since died, and Trumbull Memorial Hospital.
Despite the fact that the eight-member jury decided the amount of damages awarded to the Cobb family after trial, Shipman’s attorney points out in the affidavit:
”Unfortunately, in response to the constant urging of plaintiff’s counsel, the actions, events, and rulings in this case have made it clear that Judge McKay bears the appearance of having bias and prejudice adverse to Dr. Shipman, to the point that an entire medical community believes there is no way to get a fair trial in his courtroom.”