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Prominent Dermatologist Practice in Montgomery County, Maryland Found Liable for Patient's Death

Tuesday, November 18, 2008 General News J E 4
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ROCKVILLE, Md., Nov. 17 A jury has found a prominentdermatology practice in Montgomery County, Maryland liable for a patient'sdeath from malignant melanoma and awarded damages to the patient's family of$5.8 million.

The verdict was against a dermatologist employed in the practice of NormanA. Lockshin, M.D., P.A., in Silver Spring, Md. Dr. Lockshin is a pastpresident of the Washington, D.C. Dermatological Society. Dr. Lockshin wasnot found personally liable, but his professional corporation will have to paythe damages on behalf of its former employee who was found responsible for thepatient's death. That employee is Michael Albert, M.D., who now lives inWoodbridge, Connecticut.

The patient was Richard Semsker, a Rockville, Maryland attorney. Mr.Semsker died at age 47 in October 2007, leaving a widow and two children.

The verdict was returned late on Friday, November 14, in the courtroom ofJudge John Debelius in Montgomery County Circuit Court. The jury haddeliberated for one day after hearing five days of evidence.

In September 2004, Mr. Semsker went to Dr. Lockshin's office to have somepainful boils on his upper back examined and to have a full body skin check.It was Dr. Albert's first day on the job as a part-time moonlighting employee.His full-time job at the time was as a medical officer for dermatologic drugsfor the Food & Drug Administration in Rockville.

Dr. Albert's examination documented two cysts and an atypical mole(technically known as a "nevus") on Mr. Semsker's upper back, all of which herecommended be removed, plus a mole on his lower back which Dr. Albertrecommended for monitoring. Mr. Semsker returned to the dermatology officefour times over the next two months in the fall of 2004 to have the othergrowths removed from his back. The untreated mole on the lower back turnedinto a melanoma sometime over the next two years.

When Mr. Semsker returned to the dermatology office in August 2006,shortly after his wife noticed that the mole had turned color, it was excisedby Dr. Benjamin Lockshin, the son of the office's founder, Norman Lockshin.Shortly afterward, it was found that the cancer had traveled to dozens oflymph nodes in the patient's groin and lower abdomen. Mr. Semsker underwentnumerous treatments, including radiation, surgery and experimentalchemotherapy with interleukin, but the cancer eventually traveled to hisbrain, and he died in October 2007.

The Semsker family filed a lawsuit against Dr. Lockshin, his practice, Dr.Albert, and Mr. Semsker's primary care doctor. The primary doctor reached aconfidential settlement with the family during the trial. Dr. Lockshindocumented the same mole as 6 millimeters in diameter in 1998, at which timehe wrote a letter to the primary doctor recommending it be removed. Then in2004, when Dr. Albert saw the patient, he measured the lower back mole as 13mmin diameter, but did not realize the mole had doubled in size in the past sixyears, because Dr. Lockshin in the meantime had purged his files of oldrecords. A copy of Dr. Lockshin's 1998 letter was found in the file of theprimary doctor, who also did not realize the mole had doubled in size becausehe never compared the two letters he received from the dermatology officeabout the mole.

The family alleged that Dr. Albert should have removed the lower back moleeven if he did not know it had increased in size, because it was still of aworrisome size and the patient was already scheduled to have, and did have,another mole and two cysts removed from the back during that same fall of2004.

Dr. Albert asserted that he had treated the patient appropriately, but heannounced from the witness stand during trial that he had left the practice ofmedicine because of the lawsuit and was planning to become a high schoolbiology teacher in Connecticut. He had trained at Harvard Medical School andthe Massachusetts General Hospital in Boston.

The family called as an expert witness a prominent melanoma researcher atthe University of Pittsburgh, Dr. John Kirkwood, M.D., who testified that Mr.Semsker would have had a 95 percent chance of a complete cure if the mole hadbeen removed in the fall of 2004, but that the subsequent two-year delay inremoval allowed the cancer to travel from the skin into the bloodstream andbecome incurable. Dr. Kirkwood testified that nearly all the advances inpatient survival of melanoma over the last fifty years have been due to earlydetection and removal of worrisome moles.

Melanoma is a cancer of the cells that produce melanin, the pigment thatcolors the skin. According to the American Cancer Society, about 62,000Americans are diagnosed each year with melanoma, and about 8,000 die from thedisease.

The family was represented at trial by Patrick Malone of Patrick Malone &Associates, P.C., in Washington, D.C., and Jon Thornton of Pierce & Thornton,in Norfolk, Virginia.

The family sued Dr. Lockshin personally because of his destruction of hisold records, which would have informed Dr. Albert that the mole had doubled insize and was not a stable congenital mole as he assumed. The jury found thatDr. Lockshin was not liable because he had kept the records for the minimumfive years required by Maryland law. The American Medical Association ethicscode advises doctors to retain medical records as long as they may be of"reasonable value" to a patient. Dr. Lockshin testified that he was not awareof the AMA ethics code when he destroyed the records.

"Mr. Semsker's doctors had six years to remove this mole when it wascompletely curable," said the Semskers' attorney Patrick Malone. "If they hadpaid attention he would be alive today. This was a patient who fell throughthe cracks of the medical system because of poor communication among hisdoctors."Contact for further information: Patrick Malone Patrick Malone & Associates, P.C. 1331 H Street N.W. Washington, D.C. 20005 202-742-1500 pmalone@patrickmalonelaw.com www.Patrickmalonelaw.com

SOURCE Patrick Malone & Associates, P.C.
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