WILMINGTON, Del. – Among six ethical violations, the Supreme Court of Delaware disbarred a Pennsylvania attorney on Oct. 23 for failing to disclose the presence of altered medical records, records central to the resolution of a medical malpractice litigation which led to a $6.25 million verdict against the attorney’s client.
A report from the Supreme Court of Delaware’s Board of Professional Responsibility released earlier this year claimed Daniel J. McCarthy “assisted his client with perpetrating a fraud by failing to disclose the existence of altered medical records, a material fact in the medical malpractice action where the care provided was a central issue in the case.”
The Board recommended McCarthy be disbarred in Delaware, saying his actions were "at best dishonest, and at worst criminal."
McCarthy opposed the Board’s Report and said it was not consistent with precedent, but the Supreme Court of Delaware adopted the report’s recommendation to terminate his Delaware bar license.
The high court dispensed the disbarment to McCarthy, an attorney of 33 years, for events stemming from his participation as pro hac vice counsel for a Dr. Phyllis James. James was sued in August 2007 in Delaware state court for medical malpractice by Letoni Wilson. In May 2008, James’ assistant, Michelle Montague, was added as a defendant.
Wilson is the mother of a boy born on July 17, 2006, who was taken to see James shortly after his birth at her medical facility (and fellow defendant in the underlying case, New Castle Family Care). Wilson was concerned about her son’s jaundiced condition at four days old, and sought medical treatment from James on July 21 of that year.
According to the complaint, two days later on July 23, the baby’s jaundice worsened. When Wilson called the New Castle Family Care office, she was allegedly told by physician’s assistant Montague to bring her son into the office the following day or visit Christiana Hospital.
Wilson brought her baby to the hospital, where his system was found to have toxic levels of bilirubin, a pigment formed during the breakdown of red blood cells. Such high levels of bilirubin lead to a condition called Kernicterus, which can cause irreversible neurological damage.
Doctors at Christiana Hospital in fact diagnosed Wilson’s son with Kernicterus, which led him to develop brain damage, cerebral palsy and a host of other medical conditions.
A Delaware jury sided with Wilson in March 2010 and awarded her $6.25 million in the underlying medical malpractice action.
As the award handed down against James was in excess of the limits of her insurance policy with Preferred Professional Insurance Company, James initiated litigation in the Superior Court of Delaware for bad faith and breach of contract relating to her PPIC policy, and for legal negligence against the law firm that represented her in the underlying case.
During discovery in the bad faith case, Wilson and her attorney, Kenneth M. Roseman, indicated that’s when they discovered alterations had occurred to Wilson’s son’s medical chart after he was admitted to Christiana Hospital.
Specifically, the chart changed the location of the jaundice on the child’s body to just the face and sternum (and not the abdomen), and included a note James says she provided to Wilson about jaundice-based health risks to her son after he was hospitalized – since James had medically treated the child’s older brother, who was also jaundiced as an infant.
The Board’s report inferred James’ testimony on these matters was inaccurate and misleading, and said McCarthy failed to point that out or provide the complete and later-altered medical records, despite being obligated to do so by pre-trial stipulation.
McCarthy believed he did not have to provide the altered medical records in question, according to the report.
Supreme Court of Delaware case 229-2017
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com