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Mirkin v. Medical Mutual Liability Insurance Society of Maryland5/3/1990
ogical Associates, informing them that the specimen that he submitted to them for testing was much larger than 20 by 10 millimeters as stated in its Tissue Examination Report. "The specimen was huge . . . I am sure that the total amount of skin was 18 centimeters by about 7 cm," Dr. Mirkin wrote. Four days later, Dr. William Lee, a pathologist with Cytopathological Associates, sent Dr. Cohen an amended pathology report, which, the report noted, was "made with the aid of Dr. Gabe Mirkin's operative description." It stated that the " ntire specimen measure 18
cm x 7 cm x 7-9 mm in thickness. There is a deeply pigmented slightly elevated lesion in the center measuring 20 mm x 10 mm in size." Dr. Mirkin then called Dr. Sanford Barsky at Cytopathological Associates and discussed the amended report. Shortly thereafter, a second amended report was sent to Dr. Cohen by Dr. Barsky which attempted to explain the discrepancy between the original and amended reports. This report, which also described the specimen sent to them by Dr. Mirkin as 18 by seven centimeters, explained that the 20 x 10 millimeter specimen referred to in the original Tissue Examination Report was the section used for testing that was cut out of the 18 by seven centimeter section submitted to the lab by Dr. Mirkin. This report also stated that the lesion itself measured five by four millimeters.
On December 8, 1983, Mirkin was contacted by Bennington's lawyer who requested copies of Bennington's medical records and bills. On January 9, 1984, Dr. Mirkin sent him a letter enclosing what he termed "my operative notes and the pathology report." What was actually sent were copies of the second amended Tissue Examination Report completed by Dr. Barsky and a billing record describing Bennington's visit to Dr. Mirkin. The billing record enclosed, however, was not the one prepared at the time of Bennington's visit that described the excision of an 11 millimeter lesion from the patient's left leg. Rather, the billing record forwarded to Bennington's attorney was prepared by Dr. Mirkin after receiving the letter requesting Bennington's medical records, and it described the excision as 18 by seven centimeters, and recommended that the patient see another doctor for follow up treatment for the cancer. This record, although handwritten by Dr. Mirkin sometime between December 8 and December 19, 1983, was dated March 4, 1982, the date that Mirkin performed the excisions on Bennington's thumb and left leg. In addition, Dr. Mirkin also sent a letter to the claims department of his insurer, Medical Mutual, along with a copy of the letter from Bennington's attorney, the second amended Tissue Examination Report
and a billing record. This billing record, however, was different from both the original and the one forwarded to Bennington's attorney. The billing record sent to Bennington's attorney indicated that Dr. Mirkin spoke to Bennington about getting follow up care on March 11, 1982 and the billing record sent to Medical Mutual stated that this conversation took place on March 4, 1982. Furthermore, Dr. Mirkin did not mention to either Bennington's attorney or to Medical Mutual the existence of the original billing record. He also later testified that at the time that he prepared the second and third billing records he "had an idea" that Bennington might file a malpractice claim against him. To summarize, the correspondence that Dr. Mirkin sent to Medical Mutual and Bennington's attorney did not mention the existence of the original billing record, nor did it mention the fact that the billing record that was forwarded was not prepared at the time Bennington was treated by Dr. Mirkin but was drafted some 21 months later and was backdated t
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