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From medical-malpractice case to legal-malpractice claim

Widow sues attorney after dismissal for lack of prosecution

Linda Cartzendafner says her husband died of an infection after nurses at Ruxton SurgiCenter injected him with a needle that became unsterile during failed attempts to place an IV.

Cartzendafner filed a lawsuit Nov. 4 in Baltimore City Circuit Court — not against Ruxton or its staff, but against attorney Barry S. Brown, who she claims bungled her medical malpractice suit against Ruxton.

Stephen A. Markey III, representing Cartzendafner in her suit against Brown, said the medical malpractice action was dismissed after Brown “sat on it” without serving any of the defendants. Brown then allegedly lied to Cartzendafner, telling her the suit was “in arbitration.” By the time she discovered it had been dismissed, the statute of limitations had expired.

“She is barred from holding responsible the people she believes caused her husband’s death,” Markey said.

A call to Brown’s office phone Tuesday yielded a recording saying that the number had been disconnected. No one answered the door that afternoon at a downtown apartment listed in Brown’s name.

According to Cartzendafner’s complaint, her husband went to the Ruxton SurgiCenter in May 2000 for an epidural steroid injection. One nurse tried several times to place an IV needle into his left arm and hand without success, the complaint states, completely removing it and then reinserting it each time.

She then left the needle on an unsterile tray and went to get another nurse, who used the same needle to stick Donald Cartzendafner in his right hand, the complaint says. He subsequently developed cellulitis — an infection of the soft tissue — which spread to his bloodstream, causing fatal sepsis. He was 60.

Linda Cartzendafner retained Brown’s services on May 8, 2003 to file a complaint with the Health Claims Arbitration Office against the surgical center, the nurses, the doctor that supervised them and the physicians group he worked for. Court records show that Brown, who was admitted to practice in Maryland in 1989, worked on the case for some time, filing amended complaints to add new respondents and defendants and certifying two expert witnesses.

But Cartzendafner’s legal malpractice suit states that Brown took no further action after November 2003.

Almost three years later, according to the suit, the complaint was dismissed due to “lack of prosecution.” For years after that, the suit states, Brown lied when Cartzendafner called or visited his office, telling her the case was still pending.

According to the suit, Cartzendafner found out her case had been dismissed in January 2009, when she fired Brown and requested that her file be sent to Jay D. Miller of Miller, Murtha & Psoras LLC.

“I’m the one who sent her to Steve Markey because I knew immediately there was now a legal malpractice case rather than a medical malpractice case,” Miller said. Markey has his own two-partner firm, The Law Offices of Stephen A. Markey III P.C., which has locations in Towson and Forest Hill.

Cartzendafner’s lawsuit is not the only action facing Brown right now: he is also under investigation by the Attorney Grievance Commission of Maryland.

In findings and conclusions filed Thursday in Baltimore County Circuit Court, Judge Patrick Cavanaugh said Brown “violated rules of professional conduct and engaged in conduct that is prejudicial to the administration of justice.” Cartzendafner’s complaint was one of several cited by Bar Counsel.

Both the Bar Counsel and Brown will have the chance to file exceptions to Cavanaugh’s findings and conclusions. The Court of Appeals ultimately will decide whether Brown violated the rules of professional conduct and, if so, what the sanction should be.

Miller was subpoenaed to testify at Brown’s grievance commission hearing and, in terms of the medical malpractice case, said Brown “screwed it up.”

Miller has a theory about why Brown stopped advancing the case.

“He was not a medical malpractice lawyer,” Miller said. “I think he thought ‘Well, this case is so obvious, I’ll get it settled.’ Then he realized he was in over his head.”

Still, Miller said he could not fathom why Brown would not tell Cartzendafner her case had been dismissed. He said it could ultimately cost her a lot of money, as medical establishments are required to carry malpractice insurance, while lawyers are not.

“She has to hope there’s significant funds available from this attorney to compensate her…,” Miller said. “Which there may not be.”