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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2001-11



IN RE: MARK W. BIXBY

Order (public reprimand) entered by the Board April 26, 2001

SUMMARY1


In August of 1995, a client hired the respondent to represent her in a claim of medical malpractice against a hospital. The respondent had the client's medical records reviewed by a nurse with whom he was working on a similar case. The nurse concluded that the client's case had merit and the respondent sent a notice of claim to the hospital on December 5, 1995.

On February 9, 1998, the date the statute of limitations was to expire, the respondent filed suit against the hospital. The medical malpractice tribunal was subsequently scheduled for September 18, 1998. In July of 1998, the respondent forwarded the client's medical records to a physician for an expert opinion. In late August of 1998, the respondent learned that the expert could not substantiate a medical malpractice claim.

Upon learning that the expert had not found malpractice, the respondent arranged with defendant's counsel to file a stipulation of dismissal. Before the stipulation was filed, the respondent received a phone call from the Court stating that the tribunal would be cancelled because of a panelist's unavailability. The stipulation of dismissal was filed on September 16, 1998 and the tribunal was not rescheduled. The respondent did not discuss the decision to dismiss the case with the client.

In October of 1998, the client called the respondent to obtain an update on her case. The respondent advised her that the tribunal had been cancelled and falsely advised her that a new date would be set. He did not tell her that the case had been dismissed. Between October 1998 and January 1999, the client attempted to contact the respondent on several occasions to determine the status of her case, but he did not return her calls.

In January of 1999, the respondent telephoned the client and set up an appointment for January 29, 1999. At the meeting, the respondent advised the client that the expert had not rendered a favorable opinion. However, the respondent again failed to advise the client that her case had been dismissed. Following the January 29, 1999 meeting with the respondent, the client called the court to find out the procedure for obtaining a new date for the tribunal. The clerk advised her that the case had been dismissed with prejudice.

Thereafter, the client asked the respondent for a copy of her file. The respondent made several promises to deliver the file but did not actually do so until the end of April, after a complaint was filed with Bar Counsel.

The respondent has no prior discipline and the underlying case may not have been viable. Nonetheless, the respondent's dismissal of the client's case without authorization by the client was in violation of Mass. R. Prof. C. 1.2(a) and 1.4(b). The dismissal of the case was also a misrepresentation to the Court and to defendant's counsel of the respondent's authority to do so, in violation of Mass. R. Prof. C. 8.4(c) and (h).

In addition, the respondent's failure to obtain an expert opinion from a qualified physician until three years after he was retained, or to do so prior to sending the notice of claim or filing the lawsuit, was neglect, in violation of Canon Six, DR 6-101(A)(2) & (3), Canon Seven, DR 7-101(A)(1),(2) and (3), and Mass. R. Prof C. 1.1 and 1.3. His failure to keep the client informed about the status of her case and his failure to return her telephone calls was in violation of Mass. R. Prof. C. 1.4(a). His intentional misrepresentation of the status of the case to the client was in violation of Mass. R. Prof. C. 8.4(c) and (h). Finally, his failure to promptly return the client's file upon request was in violation of Mass. R. Prof. C. 1.16(e).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the parties' recommendation and imposed a public reprimand.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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