A Kanawha County judge on Tuesday refused to throw out a lawsuit against a Charleston gastroenterologist who has been accused in multiple lawsuits of sexually assaulting female patients under anesthesia.
About 40 former patients of Dr. Steven Matulis filled Circuit Judge Joanna Tabit's courtroom on Tuesday to hear arguments over motions asking the judge to dismiss the complaint.
Lawyers with the Calwell Practice and P. Rodney Jackson, who filed the lawsuit, want Tabit to grant the lawsuit class-action status on behalf of Matulis' female patients from the past six years who underwent a colonoscopy procedure.
Tabit ordered both sides to come up with a proposed scheduling order in the next two weeks. Before Tabit decides whether to grant the lawsuit class-action status, a certification hearing must be held.
The lawsuit filed in November against Matulis was also filed against Charleston Gastroenterology Associates and Day Surgery Center. Matulis practiced at both locations.
Lawyers for the defendants argued that Tabit should dismiss the medical malpractice lawsuit because the plaintiffs didn't allege a physical injury.
The judge responded, however, that West Virginia law doesn't require a physical impairment to prove an injury has occurred.
"Is there a more vulnerable population than those under anesthesia?" Tabit said Tuesday. "It's everybody's worst nightmare."
The complaint states the women who were patients of the doctor don't know whether they are victims of sexual assault, after having a procedure by the doctor in which they were under anesthesia. The former patients also don't know if the colonoscopy procedure given by Matulis is reliable.
Not knowing whether an assault occurred creates substantial concern and distress for the women, according to the lawsuit.
The lawsuit alleges Matulis failed to comply with the time requirements for careful withdrawal of a colonoscope during colonoscopy procedures. The lawsuit wants those who received a colonoscopy that is not medically reliable to be given the option to have the procedure repeated by a competent physician at the expense of the defendants.
Medical records of Matulis' patients also show that Matulis was reckless while performing colonoscopy procedures, lawyers said - which means he could have misdiagnosed patients.
"There's now a new fear," said lawyer Stuart Calwell on Tuesday. "Cancer."
The defendants in the case hadn't yet responded to the lawsuit when they filed the motions to dismiss. Tabit gave them 20 days from Tuesday to respond.
According to a separate lawsuit filed last year, Charleston police told at least two women, about a week after they underwent a procedure, that they had been the victims of sexual assault by Matulis.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.