Judge wants to remain on doctor’s case

WARREN – Common Pleas Judge W. Wyatt McKay has filed a response with the Ohio Supreme Court, assuring justices that he is not biased or prejudiced against a doctor in a long-running medical malpractice case.

”Furthermore, there is no appearance of impropriety. This court is more than capable of presiding over the remaining issues in this case,” McKay wrote in a letter to the court’s Office of Legal Resources.

The judge was filing his answer within the 15-day deadline imposed by the court after receiving an affidavit of disqualification earlier in the month from an attorney for Dr. Tara Shipman, who was held liable by a jury that found $13.9 million in damages for the doctor’s treatment during the delivery of a baby who has suffered medical problems since her birth.

McKay’s letter was followed by another letter from local attorney Frank Bodor sent in defense of the local bar and the judiciary, which the lawyer said took major and unwarranted criticism in the affidavit.

The verdict Oct. 21, 2010, for the 11-year-old Leavittsburg girl and her family was later reduced to $9.7 million, but still amounts to the largest amount of civil damages in Trumbull County’s history.

The case is ongoing with attorneys on both sides fighting over issues involving prejudgment interest that could total several more millions of dollars.

The Supreme Court will decide soon whether McKay remains as the judge or whether to assign it to another jurist.

Attorney Joseph A. Farchione, who represents Shipman and who filed the 38-page affidavit against McKay from his office in Denver, cited fallout from the 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.

Farchione also wrote that the appearance of having a bias and prejudice adverse to Dr. Shipman has reached the point that ”an entire medical community believes there is no way to get a fair trial in (McKay’s) courtroom.”

Even though doctors held a news conference and advertised in the newspaper, criticizing the verdict, McKay pointed out in his letter:

”Criticism in the community by certain interested groups of people does not equal evidence of judicial bias or prejudice. If that were the case, judges would be disqualified every time someone did not agree with a decision and had the means to broadcast their criticism to the general public.”

Farchione also criticizes local attorney Martin White, and his affidavit includes a message from a local doctor that describes McKay as White’s ”bedfellow.”

”This court has never been a bedfellow of attorney Martin White. In point of fact, in over 26 years on the bench, by far the majority of malpractice cases against doctors and hospitals have been resolved in their favor,” McKay wrote in his response.

Bodor meanwhile says he takes Farchione’s affidavit seriously: ”I’m not speaking for the bar (association), but I am defending them. My letter was completely unsolicited and it’s based on the ethical rules that are in place.”

”The right of Mr. Farchione to file a request for a judge’s disqualification is acknowledged, but his disparaging and unfounded comments toward the Trumbull County judiciary system including Judge McKay, is without merit …” Bodor wrote.

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.

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.