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Mirkin v. Medical Mutual Liability Insurance Society of Maryland5/3/1990
Gabe Mirkin, M.D., appeals from an order of the Circuit Court for Baltimore City which reversed a determination by the Insurance Commissioner that Medical Mutual Liability Insurance Society of Maryland (Medical Mutual) violated
Md.Code Ann., Art. 48A, ยง 234A when it attempted to cancel appellant's professional liability insurance. This litigation arose under the following circumstances.
On March 4, 1982, 24 year old Tom Bennington, Jr., accompanied by his father, went to see Dr. Mirkin to have a wart removed from his thumb. Dr. Mirkin examined Bennington's thumb as well as a black lesion on his left leg. Dr. Mirkin told Bennington that the lesion looked cancerous and recommended that a biopsy be performed to determine whether it was malignant. Dr. Mirkin's secretary anesthetized the area for a biopsy excision. Because this was Bennington's first visit to Dr. Mirkin, the physician's secretary also filled out a billing record for Bennington and wrote on it "Exc nevus left leg 11 mm, multicolored changing" denoting the excision of the lesion 11 millimeters in length from Bennington's left leg. She also noted "Exc wart right thumb" on the billing record, describing the excision of the wart. The wart was removed, but before Dr. Mirkin removed the lesion, Bennington's father told Dr. Mirkin that they did not have insurance to cover medical expenses. In response, Dr. Mirkin said that he was so certain the lesion was cancerous that the biopsy was not really necessary and that he could remove the lesion and a section of tissue around it in his office at that time. This would eventually have to be done, he explained, and it saved Bennington the expense of the biopsy. The Benningtons agreed with this suggestion and the lesion and a section of tissue around it were removed. A copy of the billing record, which was the only record made of Bennington's visit to Dr. Mirkin's office, was given to Bennington. It was not changed, however, to reflect the procedure that was actually performed.
Following the procedure, Dr. Mirkin had the lesion and tissue specimen sent to Cytopathological Associates for a pathological examination. The Tissue Examination Report
confirmed that the lesion was cancerous and contained a description of the specimen as "a single pinkish tan tissue with a dark brown pigmented center, measuring 20 x 10 [millimeters.]" A copy of the report was given to Bennington by Dr. Mirkin on a follow up visit.
In August of 1982, Bennington began to experience swelling in his left groin area, and he consulted Dr. Jeremy Cooke. Dr. Cooke diagnosed Bennington as having disseminating cancer. He informed Dr. Mirkin of this and told him that he was now treating Bennington. Dr. Cooke made a notation in his records that the scar on Bennington's leg as a result of Dr. Mirkin's excision was five centimeters in length. Dr. Cooke also referred Bennington to a surgeon, Dr. Kreupz, who later surgically removed a lymph node from Bennington's groin which was also found to be malignant.
In September of 1982, Bennington saw Dr. Max Cohen, a surgical oncologist. Dr. Mirkin, at Bennington's request, sent Dr. Cohen a copy of the Tissue Examination Report prepared by Cytopathological Associates. On September 23, 1982, Dr. Cohen performed a resection of the original excision on Bennington's left leg and removed a lymph node. It was not cancerous. At about this time, Dr. Cohen contacted Dr. Mirkin and expressed his opinion that the excision on Bennington's left leg seemed to be much larger than 20 by ten millimeters as stated on the Tissue Examination Report.
On April 4, 1983, Dr. Mirkin wrote to Cytopathol
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