Montgomery Co. med-mal case includes Bill Clinton on witness list

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A straightforward medical malpractice case making its way through Montgomery County Circuit Court features a number of twists with one defendant deceased, the other out of the country and a witness list that includes former president Bill Clinton.

Clayven D. Smith Jr. filed suit against Dr. Charles L. Franklin Jr. in January 2015, more than six months after Franklin’s death, according to the complaint.

The suit alleges Franklin began treating Smith in 2008 and diagnosed him with diabetes and hypertension but failed to take action on signs of kidney disease, which eventually Smith to be placed on dialysis.

According to Donald R. Huskey, Smith’s lawyer, a medical expert is prepared to testify that the progression of Smith’s kidney disease could have been slowed if preventative care had been administered.

“Dr. Franklin did nothing,” said Huskey, an Owings Mills solo practitioner.

A pretrial hearing is scheduled for Jan. 20, and a trial is scheduled for March, according to online court records.

Clinton connections

Because Franklin is deceased, Huskey deposed Alexis Herman, Smith’s wife and the personal representative for his estate, to determine how much she knew about her husband’s practice.

Huskey said he also believes Herman has relevant testimony based on her role as secretary of the Department of Labor in the Clinton administration. He cited comments she made about medical malpractice during a 1998 announcement about the Patients’ Bill of Rights, an event also attended by Clinton and Donna Shalala, then-secretary of the Department Health and Human Services.

At Herman’s deposition in October, defense attorney Conrad W. Varner objected to Huskey’s line of questioning related to Herman’s work as Labor secretary, and the issue is being considered by a judge.

Varner, of Varner & Goundry in Frederick, did not respond to requests for comment.

“I thought it was relevant,” Huskey said, adding it is unusual for a personal representative of an estate involved in a medical malpractice lawsuit to also be involved with Patients’ Bill of Rights.

Huskey also questioned Herman about her knowledge of her husband’s business, which she sold after his death.

“It’s not really clear to me… how she sold the practice,” he said.

As for Clinton, Huskey said he could have relevant testimony about Herman’s knowledge of medical malpractice.

“We may get to him, we may not, but we certainly think… that he may be a person with knowledge,” he said.

Second doctor

Franklin’s practice was winding down in 2013 when he sent Smith to Ishtiaq A. Malik, according to the complaint. Malik, also named as a defendant in the lawsuit, did not order any procedures to test Smith’s kidney function for months, by which time Smith’s kidney disease was irreversible.

Malik did not respond to the lawsuit or discovery requests, leading to Montgomery County Circuit Judge Anne Korbel Albright entering a default judgment in April.

Huskey said to the best of his knowledge Malik is out of the country, though it was only in recent weeks that mail sent to his business address began to be returned as undeliverable.

“Until about a month or so ago he had been getting his mail,” he said.

Smith is seeking nearly $10 million in damages from Malik, according to Huskey, and the issue of liability is pending.

The case is Clayven D. Smith Jr. v. Charles L. Franklin Jr. et al., 399550V.