V I R G I N I A:
IN THE CIRCUIT COURT FOR THE CITY
VIRGINIA STATE BAR, ex rel.
FOURTH DISTRICT (SECTION II)
v. IN CHANCERY NO. 021034
TARA MARIE McCARTHY
1. At all times relevant hereto, Tara Marie McCarthy, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. The Respondent was counsel for Suzanne Yaras, one of the Defendants in a medical malpractice action in the Circuit Court for the City of Alexandria, brought by Bette Wilson, Guardian for her daughter, Kanika Wilson, Law No.99-0084.
3. On January 27, 2000, the Respondent, pursuant to the Rules of the Supreme Court of Virginia and to the scheduling order in the case, designated four individuals as expert witnesses on behalf of Defendant Yaras on the issues of standard of care and causation. The individuals so designated included Erin Foley, MD, and Louise Hershkowitz, CRNA.
4. In the designation of expert witnesses the Respondent represented with respect to Ms. Hershkowitz that she would testify on behalf of Defendant Yaras that Yaras met the standard of care regarding the administration of anesthesia, that the monitoring of Plaintiff Wilson during the course of the medical procedure was within the appropriate standard of care and that the resuscitation procedures eventually employed on Plaintiff Wilson were within the appropriate standard of care.
5. In actual fact, prior to such designation, the Respondent had been advised by Nurse Hershkowitz that she had a number of areas of concern about the standard of care provided to Ms. Wilson by Defendant Yaras, and that the care of the patient by Defendant Yaras failed to meet the standards of care of nurse anesthetists in a number of areas, including, but not limited to those described in Paragraph Four above. Hence, the description of the testimony as set forth in the designation of witnesses by the Respondent, which the Respondent represented as being the opinions of Nurse Hershkowitz, and what she would testify to as an expert, was misleading and contrary to the certain of the actual opinions directly stated to the Respondent by Ms. Hershkowitz concerning the standard of care provided by Defendant Yaras.
6. The Respondent asserted with
respect to Dr. Foley that she would testify as follows:
a. the anesthetic agent used in this case was appropriate;
b. the injuries complained of were not due to the lack of care or diligence on the part of Suzanne Yaras;
c. Suzanne Yaras's qualifications rendered her appropriately skilled and trained as a nurse anesthetist;
d. the equipment used by Suzanne Yaras seemed appropriate;
e. Defendant Yaras complied with the applicable standard of care in managing and assessing that the equipment was safe to use; and
f. Defendant Yaras's monitoring of Kanika Wilson's clinical status and her resuscitation were all within the standard of care and did not proximately cause any damage to the Plaintiff.
7. Prior to the designation of Dr. Foley by the Respondent as an expert witness for Yaras, Dr. Foley had advised the Respondent in a telephone conversation that, in her professional opinion, the care provided by Yaras failed to meet the requisite standards of care.
8. Subsequent to such designation by the Respondent, counsel for Plaintiff Wilson made numerous requests to schedule the depositions of Hershkowitz and Foley. Shortly before their scheduled depositions (scheduled by court order), both individuals were withdrawn as experts by the Respondent.
9. Prior to the time of such designation
Dr. Foley had advised the Respondent that she would not testify as an expert
on behalf of Defendant Yaras. Further, Ms. Hershkowitz had advised the Respondent
that she would not testify to all of the opinions set forth in her designation.
Therefore, the designation by the Respondent of Dr. Foley as an expert who would
testify on behalf of Defendant Yaras was false, and known by the Respondent
to be false at the time such designation was made. The designation by the Respondent
of Ms. Hershkowitz as an expert who would testify on behalf of Defendant Yaras
was false in part, and known by the Respondent to be false in part at the time
such designation was made.
10. As a result of the false and misleading designation of individuals as experts for the Defendant when those individuals had not consented to testify on behalf of the Defendant, as well as the false and misleading statements concerning the content of the professional opinions of the individuals themselves, counsel for the Plaintiff expended substantial amounts of time and expense in attempting to schedule depositions of the designated experts.
II. NATURE OF MISCONDUCT
RULE 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal;
RULE 3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) Obstruct another party's access to evidence.
(i) File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or
RULE 4.1 Truthfulness In Statements
In the course of representing a client a lawyer shall not knowingly:
(a) Make a false statement of fact or law.
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
(b) commit a _..deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;
(c) engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;
The statements of fact that are contained in this agreed disposition, to the extent they are admissions, shall not be deemed admissions in any proceeding or tribunal except one relating to the status of the Attorney as a member of the Bar in an Virginia State Bar disciplinary action or matter.
C. MITIGATING FACTORS
The signatories hereto acknowledge that a mitigating factor taken into account in this Agreed Disposition is the absence of a prior disciplinary record on the part of the Respondent.
D. STIPULATION OF DISPOSITION
The Respondent shall receive a thirty (30) day suspension of her license to practice law in the Commonwealth of Virginia, to commence on the November 22, 2002, and conclude on December 21, 2002.
SEEN AND AGREED:
YVONNE DeBRUYN WEIGHT
Special Assistant Bar Counsel
RHETTA M. DANIEL
Attorney for the Respondent
WILLIAM D. CREMINS
TARA M. McCARTHY