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Mirkin v. Medical Mutual Liability Insurance Society of Maryland5/3/1990
of the need for follow up care were issues in the malpractice suit subsequently filed against Dr. Mirkin.
Dr. Mirkin contends that the second set of medical records were not alterations because the original record was in no way modified and because the second set gave a more complete account of the medical procedure performed. While this may be true, the original record was concealed and a record made 21 months later was backdated, thereby misrepresenting it as the original record. If the second set of records was intended merely to supplement the original with a more detailed account of the procedure performed, there would have been no reason to conceal the original record and backdate the supplemental one. Although the circuit court and this Court are constrained by a narrow scope of review, it is nonetheless incumbent upon us to "examine all inferences and factual conclusions drawn by the agency to make sure that they reasonably follow from facts. We must also examine all facts found by an agency to insure that there was evidence to support them." Doctor's Page 550} Hosp. v. Maryland Health Resources, 65 Md. App. 656, 667, 501 A.2d 1324 (1986). We find no evidence to support the Insurance Commissioner's factual finding that Dr. Mirkin did not materially alter his records after becoming aware of the possibility of a claim arising from an act or omission in his furnishing of professional services to Bennington.
II.
Dr. Mirkin also argues that the standard employed by Medical Mutual in cancelling his insurance policy violates § 234A because it is not "reasonably related to the insurer's economic and business purposes." We disagree. Medical Mutual has provided in its brief the following explanation for its adoption of this standard:
Credible, accurate, contemporaneous medical records are the foundation of the proper defense of a medical malpractice claim. Even if contemporaneous records are not complete, credible testimony of a treating physician may be used to supplement the records and demonstrate compliance with the applicable standard of care. If a physician submits subsequently prepared medical records which are represented as contemporaneous, however, the credibility of the contemporaneous records as well as of the physician will be destroyed.
We find this standard to be reasonably related to Medical Mutual's economic and business purposes. Medical Mutual is denying coverage to those physicians whose medical records cannot be relied on when defending a claim against them. The reasonableness of this is brought into even sharper focus by the $650,000 award assessed by the Health Claims Arbitration Panel in Bennington's favor against Dr. Mirkin. Indeed, Dr. Mirkin admitted at the hearing before the panel that none of his billing records were accurate, and it is not surprising that he was not considered to be a credible witness by the panel.
Dr. Mirkin asserts that appellee's justification for the standard is not sufficient; that in order to comply with
§ 234A an insurer must present statistical evidence which satisfies the three part test employed in Crumlish v. Ins. Comm'r, 70 Md. App. 182, 190, 520 A.2d 738 (1987). In employing this three part test the Crumlish court, as the Court of Appeals noted in Muhl v. Magan, 313 Md. 462, 475-76, 545 A.2d 1321 (1988), "presupposed that the statute could be satisfied only by an objectively demonstrable, statistical basis for underwriting." There are, however, circumstances in which this is not possible. See, e.g., Miller v. Ins. Comm'r, 70 Md. App.
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