Damages sought from medical malpractice lawyer

May 28, 1994|By Sheridan Lyons | Sheridan Lyons,Sun Staff Writer

Marvin Ellin, one of Baltimore's most visible medical malpractice lawyers, finds himself on the other end of a malpractice lawsuit in Baltimore County Circuit Court.

The civil suit against Mr. Ellin was filed by the husband and four children of Cherie M. Bishop, 53, of Middle River, who died 24 hours after entering a Delaware hospital in June 1986.

The family accuses Mr. Ellin of legal malpractice for not filing a claim against the hospital within Delaware's two-year time limit.

In pretrial rulings Monday, Judge Thomas J. Bollinger said the jury first must decide whether the family has a valid claim for medical malpractice against the hospital. If so, he said, it will decide whether there was legal malpractice by Mr. Ellin.

The trial is expected to last several weeks.

Mrs. Bishop, who had a history of kidney stones and heart trouble, was en route to Ocean City with her daughter on June 18, 1986, when she was overcome by pain. Her daughter, Diane Jeanette Crouse, 39, of Forest Hill testified Tuesday that she called an ambulance to take her mother to nearby Beebe Hospital in Lewes, Del., at 12:40 p.m.

Mrs. Crouse planned to return to see her mother the next day at lunchtime. But instead she received an emergency phone call from the hospital that morning and rushed there, where she found that her mother had died shortly after noon.

According to the lawsuit, Mr. Ellin agreed in November 1987 to represent the Bishops in a wrongful-death action for $750, plus a percentage of the award, and said the case was strong.

But in early November 1988, the family alleged, Mr. Ellin met with Mrs. Bishop's husband, James E. Bishop Sr., now 65, and Mrs. Crouse and taped a conversation in which he tried to get them to say that he had been retained only to investigate Mrs. Bishop's private physician -- who never was involved -- then tried to talk them out of suing the hospital.

He didn't mention the two-year time limit, according to the lawsuit, but did say he needed $35,000 to pursue the case, which would be "a roll of the dice," with only a 50 percent chance of success.

At a meeting in April 1989, the lawsuit alleged, Mr. Ellin was "intimidating and abusive," tried to get Mr. Bishop to say he knew about the time limit and blamed him for the delay. The attorney also said he never actually had been retained, but repeated that he needed $35,000 to file a case that might be thrown out of court, according to the suit.

Alleging legal malpractice, the lawsuit seeks compensatory damages from Mr. Ellin to replace what the family believes it would have won if it had sued the hospital -- more than $100,000 for Mrs. Bishop's pain and suffering and more than $500,000 for wrongful death and mental anguish.

The dispute centers on whether Mrs. Bishop died from a heart condition or from an infection of the bloodstream caused by the kidney stones, as the Bishops allege.

Mr. Ellin's attorney, Alvin I. Frederick, told the jury several times, "This case is about hindsight and second-guessing. . . . People don't die from kidney stones."

He said the hospital was not negligent. Its doctors didn't have Mrs. Bishop's medical records, but she had told them of a congenital defect of her heart's aortic valve and of a possible heart attack she had suffered two days earlier. She showed none of the warning signs of infection until less than an hour before she died, he said.

"This infection would not have killed anyone with an ordinary heart," Mr. Frederick said.

But Edward Greensfelder Jr., representing the Bishop family, told the jury that the hospital's negligence caused Mrs. Bishop's death.

Mr. Greensfelder said Mrs. Bishop recognized the pain from three previous kidney stones, and the emergency room correctly diagnosed the problem as an infection caused by the stones. But he said doctors did not order a blood culture or start antibiotics, which led to cardiovascular collapse.

Mr. Greensfelder discounted the woman's heart condition, saying it is present in 10 percent of the population and had caused her no serious problems. She worked full time at Safeway Moving and Storage in Middle River with Mr. Bishop, he said.

Despite a valid claim that the hospital violated the proper standard of care, Mr. Greensfelder said, Mr. Ellin "never brought the Bishops' case in the first place."

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