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Mirkin v. Medical Mutual Liability Insurance Society of Maryland5/3/1990
o the time of the treatment.
On May 23, 1984, Bennington filed a claim against Dr. Mirkin with the Health Claims Arbitration Office alleging that Dr. Mirkin was negligent in failing "to properly excise the malignant melanoma with sufficient margins to prevent recurrence" and in failing "to schedule follow-up examination after the excision for the purpose of early detection and treatment of any recurrence." In August of 1985, Dr. Mirkin's deposition was taken and the existence of the original billing record, a copy of which was given to Bennington at the time of his treatment, was made known to Medical Mutual. Shortly thereafter, Medical Mutual's claims agent, Kathleen Killeavy, discussed the matter of the different billing records with Dr. Mirkin, who was notified by Medical Mutual claims manager Richard L. Donniez on December 2, 1985 that "the possibility exists that there may have been additions or alterations made by you to your office notes and bills. If these alterations or additions should prove to be prejudicial and material, we reserve the
right to withdraw coverage and the defense of this civil action against you."
On January 21, 1987, after a hearing, the Health Claims Arbitration Panel determined that Dr. Mirkin was liable to Bennington for negligence in the amount of $650,000. During the course of that hearing, Dr. Mirkin testified that none of the three billing records were accurate. Kevin McCarthy, Esq., the attorney retained by Medical Mutual to represent Dr. Mirkin, reported to Killeavy that the chairman of the panel that heard the case told him, off the record, that the panel's decision was based on Dr. Mirkin's improper follow up and that " o member of the panel believed that Dr. Mirkin was credible as a witness."
On September 21, 1987 Medical Mutual notified Dr. Mirkin that his insurance would be cancelled as of October 17, 1987, for "alteration of records." On October 2, 1987, Dr. Mirkin filed a complaint with the Insurance Commissioner alleging that Medical Mutual had violated § 234A(a) of the Insurance Code, which proscribes, inter alia, the cancellation of insurance for any arbitrary or capricious reason or for a reason other than one that involves "the application of standards which are reasonably related to the insurer's
economic and business purposes." A hearing on this complaint was held before the Insurance Commissioner on April 22, 1988 and continued on May 18, 1988 and August 16, 1988. At this hearing, Medical Mutual stated that the underwriting standard it applied in cancelling Dr. Mirkin's insurance was as follows:
Professional liability insurance will not be provided to any physician who, in connection with a prior claim, materially altered medical records after becoming aware of the possibility of a claim arising from an act or omission in the furnishing of professional services. Alteration includes any addition, correction or change to or written supplementation of the patient's medical records occurring after the creation of those records unless the subsequent addition, correction, change or supplementation is clearly labeled to indicate that it is not a contemporaneous record.
The Insurance Commissioner concluded that this standard satisfied § 234A, but had been improperly applied because there was
no evidence that Mirkin, or any of his personnel, in any way altered Bennington's records. The additional report presented by Mirkin was more complete than the billing record maintained by his office. The billing record represents the only record maintained by Mirkin of medical care and treatment given to Bennington and was in no way altered. Therefore [Medical Mutual] has not
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