Board of Medicine Gives Reprieve Enabling Sexual Predator to Practice for 18 Years. Justice Finally Served.

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I have never understood why some women spontaneously become pen pals and virtual lovers with violent felons currently incarcerated. Some even marry the object of their desire.

This behavior is not dissimilar to a recent Facebook group launched in support of Dr. Johnnie Barto, a Johnstown, Pennsylvania pediatrician.

Dr. Barto was recently sentenced to 79 to 158 years in prison. The prosecutor asked for a sentence of 31 to 63 years in prison. Dr. Barto is currently 71 years old.

So, what did he do?

Barto pleaded guilty in December 2018 to sexually abusing two family members.

He also pleaded no contest to sexually assaulting 31 children, most of them patients. Many were now adults. By pleading no contest, he did not admit guilt, but he did accept the punishment.

Barto’s wife included her own victim impact statement:

“He has been lying to me about everything for all of the 52 years I have known him. … He spent his whole sinister life lying and sneaking around, so he could carry on his abuse uninterrupted,” she said. She said her heart was heavy for the victims.

Other victims spoke their mind:

Erika Brosig (who was 13 when abused) said she can still feel Barto’s cold hands and hear the exam table paper crinkling underneath her body. “The sound of you moaning will haunt me until the day I die,” she told Barto.

One victim said that because of what Barto did to her, she rarely sees a doctor and is terrified of taking her children to one. Another told the court she showers in the dark because she’s ashamed of her body.

Many spoke of lifelong struggles with depression, anxiety, panic attacks and distrust of men. “I’ve lived my life in pain, hopelessness and despair,” a woman said in her statement.

The prosecutor argued that Barto became a pediatrician so he’d have a ready supply of victims – typically prepubescent girls; one was an infant.

Guess what? In 2000, Barto appeared before the Pennsylvania Board of Medicine on administrative charges he molested two young girls in the 1990s. The regulators concluded the charges were incongruous to Barto’s reputation and allowed him to continue practicing medicine. This break likely even emboldened him.

During his tenure as Johnstown’s beloved pediatrician, he served as an elected school board member. Ribbons of support were distributed and worn at a high school football game as he worked to keep his license.

The judge presiding over the case summed up his feelings of disgust:

“All I can say is that the justice system is not perfect, but it worked the second time.”

Apparently, there’s a word for the psychology behind prison pen pals – “hybristophilia” – a paraphilia or condition in which one feels sexual arousal or has an affinity for people who do reprehensible things.

These negative acts range from “small” offenses like cheating or lying to terrible crimes such as serial murder and assault. The condition is different than someone who may be physically attracted to a criminal despite their crimes; a person with hybristophilia is drawn to the person because of the crimes they committed. Those who identify as having hybristophilia often become pen pals, start fan sites, and form relationships with the accused — some have even married criminals while the inmates are still incarcerated. Famously, some serial killers have inspired fan clubs and groupies, consisting primarily of women who are drawn to their extreme bad-boy aesthetic.

While hybristophilia may explain the Facebook support group for Dr. Barto, the simpler explanation is just plain denial. It’s horrifying to think that a parent could be duped into allowing their vulnerable child to be examined by a predator.

What do you think?


ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.

Federal Government Considering Plunge into Regulating Stool

C. difficile is a thorny problem for hospitalized patients because physicians have generously prescribed progressively stronger broad spectrum antibiotics, killing off good bacteria, making it easier for the bad bacteria to proliferate.

The condition affects 500,000 Americans each year and takes 30,000 lives.

When yogurt and standard probiotics don’t stop the diarrhea (and there is evidence to suggest they may be good first line treatments), some have turned to fecal matter transplants (FMT) to rebuild the good bacteria.

How does it work?

The treatment transfers fecal matter from healthy donors to the bowels of sick patients. Transfer can be via mouth or colonoscopy. Before you judge, the treatment by mouth requires processing to make it palatable.

The question before the FDA is whether fecal microbiota should be considered a drug. Or are fecal microbiota analogous to organs, tissues, and blood products transferred from the healthy to the ill?

Let’s go back in time. In 2013, the FDA announced a draft decision to regulate FMT as a new drug. They stated they would study the matter. Almost 6 years later, a decision is expected soon.

Some entities, such as practicing gastroenterologists and patient groups, want the FDA to butt out. Others (such as biotechnology and pharmaceutical companies) want the FDA to regulate. The conflict is turning into a s*%tstorm.

In a summary of the conflict, the NY Times reported:

Dr. Alexander Khoruts, a gastroenterologist at the University of Minnesota, said he feared the F.D.A. was favoring the interests of what he calls the “poop drug cartel,” a group of companies seeking approval for new ways to deliver the active ingredients in transplanted feces. Three of the companies, Rebiotix, Seres Therapeutics and Vedanta Biosciences, have raised tens of millions of dollars from investors and they recently formed an association to advance their interests with the F.D.A.

“An obscene amount of money is being thrown around by companies trying to profit off of what nature made,” said Dr. Khoruts. “I don’t think there are clear villains here, but I worry that the regulators are not caught up on the latest science and that the interests of investors may be exceeding those of patients.”

“The first principle of medicine is do no harm, and at the moment we don’t have a long-term track record of F.M.T.’s adverse effects,” said Dr. Sahil Khanna, an associate professor of gastroenterology at the Mayo Clinic who has conducted industry-funded clinical trials on fecal transplants. “We also need to move away from transferring poo from one person to another.”

Experts in the field of bioethics and many doctors are pressing the F.D.A. to come up with a new regulatory category that reflects the groundbreaking nature of microbiota therapies.

In 2012, around the time the FDA released its draft, a microbiologist at MIT, Mark Smith, founded OpenBiome as a non-profit stool bank. That entity now supplies the lion’s share of fecal matter for transplants in the US. Since its founding, tens of thousands of patients have been treated and cured with FMT. Some patients feel relief within hours of being treated.

The FDA is in a holding pattern and has adopted a wait and see approach for FMT for patients who have failed conventional treatments for C. difficile. Desperate patients has resorted to taking shortcuts with a relative’s stool , saline, and an enema.

Ms. Duff, the head of the C. diff patients group, credits her own recovery from the disease to a homemade concoction her husband created with his own stool in the kitchen blender.

I hope that blender was thoroughly washed before being used again. The larger point is that the number of effective treatments are few; and FMT is so effective. The FDA should make it easier to obtain access.

Insurance companies are also in a holding pattern waiting for FDA guidance. Until the FDA decides, most carriers are not reimbursing for FMT.

So, what does farm to table (or, more accurately, bench to bedside) look like:

The organization (OpenBiome) produces 900 to 1,000 monthly treatments, most of them bottled liquids that are packed in dry ice and sent overnight to clinics across the country. Any unpleasant odors are confined to an airtight production facility, where employees in white hazmat suits gingerly handle clear plastic bags filled with a mud-colored slurry.

The material comes from donors who earn $40 a pop and must pass intensive screenings and regular medical checkups. “It’s harder to become a stool donor than it is to get into M.I.T.,” said Carolyn Edelstein, who runs the organization.

From the pharmaceutical companies’ perspective, if patients can buy a treatment directly from OpenBiome for a modest sum, then no one will enroll in a clinical trial. They are arguing that they have invented a novel means of delivering FMT and they should be able to extract a premium price if it passes formal regulatory approval.

Who knows how this will come out in the end? Let us know your thoughts. And if you’ve found yourself in a medico-legal bind, use the form below to connect with us.

Request Your Confidential Medico-Legal Consultation

You’ll receive a confirmation message upon submission. If you do not find this message immediately, please check your junk box.

Your confirmation email will contain a brief message from Dr. Segal, who will review your situation and determine whether Medical Justice can assist. Afterwards, our team will contact you to schedule your consultation.


ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.

Before and After Photos. Do You Own Them? Or Not?

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Many aesthetic surgeons and dentists use before and after photos on their web site to market their practices. They are demonstrating to the public at large what they can reasonably expect if they select their practice.

They are more than just plain vanilla images. They are photos of patients who have given permission to use their images. These patients expect these images will be used solely for the purpose for which they have given consent.

And the doctor is affirming that the type of work they do is represented by such photos. These photos are not the one in a million outlier. They are not doctored (no unintended) by lighting and shadowing to misrepresent or oversell. Indeed, the Board of Medicine and Dentistry views any such misrepresentation as false and deceptive advertising. In short, these photos are indicia of professional reputation.

I always assumed the person who shoots such pictures owns all rights to the images. That is what I expect when I hire a photographer to take headshots or film a wedding / graduation. If the photographer wants to give me access to use as I see fit, he transfers ownership to me, either by assigning ownership or licensing with a fully paid up perpetual license to use. Such transactions are not that complex. I hire the photographer. I get pictures. But behind the scenes, that’s how intellectual property issues are addressed. (OK, it’s actually a little more complex than that.)

Onward to Pohl versus MH SUB I LLC (dba Officite). Mitchell Pohl is a dentist in Florida. He took pictures of his patient, Belinda, before and after he worked on her teeth. He posted these images on his website. He even took the trouble to register these photos with the US Copyright Office.

A company called Officite found and used these images on websites promoting other dental practices.

Pohl hired attorneys who sued for copyright infringement.

The defense argued that the images contained no artistry, the bare minimum threshold for acquiring copyright.

The court agreed with the defense. The dentist lost.

The case is being appealed and I believe the outcome will be overturned.

In his ruling, the judge wrote:

“There is nothing remotely creative about taking close-up photographs of teeth. The before and after shots served the purely utilitarian purpose of displaying examples…to potential customers.”

The dentist took issue with that conclusion.

The dentist stated:

“[The judge] failed to realize that the creativity didn’t begin right there when I picked up the camera. The creativity began when the patient walked into the office and I saw a blank canvas. It stopped when I pushed the shutter.”

In a 1991 unanimous US Supreme Court case, Feist Publications, Inc., v. Rural Telephone Service Co, the justices set a low bar for copyright protection. The threshold is originality. Originality means the work was independently created by the author (as opposed to copied from another source) and it possesses some minimal degree of creativity. Even a slight amount of creativity is sufficient “no matter how crude, humble, or obvious it might be.”

The defense argued that simply aiming a point and shoot camera at someone’s mouth is not artistry.

The dentist was asked details about the photo shoot. Whether the patient was sitting or standing. What type of camera was used? The dentist was not able to remember the details. The goal of such questions was to minimize the role the dentist played in the photographic creativity.

To prevent a court from second guessing the “artistry” of the before and after photos, doctors should document and standardize items such as camera angle, lighting, exposure, and other technical aspects. Or spend time addressing (and documenting) how the subject is staged. This is a minor headache.

Still, I would argue there are public policy implications to allowing before and after pictures to be used on any website without the doctor’s permission. The most obvious reason: On the original doctor’s site, the doctor is representing HIS work – what HE is capable of performing. On another doctor’s site, it is possible for patients to be confused, wrongly believing the before and after pictures are the work of the second doctor. Now all patients will not be able to trust any before and after pictures on any site. Of course, the judge might argue there are other ways to address that dilemma such as holding the second professional accountable for false advertising or professional disciplinary action. But that requires much more effort than sending a simple cease and desist letter.

Next, patients on the original doctor’s site have given permission to use those photos in a limited way – only on the original doctor’s website. Had those patients known those photos could appear anywhere, they would just say no. In that new world, no patient would allow their photos to be used on any site. And prospective patients would now have to find some other way to assess a doctor’s talent.

Finally, we have seen cases of juvenile satirists stealing before and after photos to make YouTube videos mocking such patients for having undergone aesthetic surgery. One such budding YouTube sensation had over one million followers. After the doctor asserted a copyright claim over the original photos, YouTube took down the mockumentary, much to the patients’ relief. If the judge’s interpretation of copyright is allowed to stand, the patient will have to suck it up and just live with a third party mocking them online.

For all these reasons, I expect this copyright decision to be short-lived. Still, if you are a doctor who uses before and after pictures, document the consistent way you take these photos and add some additional minimal creative flair. The five minutes of thought you put into it today may protect your intellectual property later.

What do you think?

Let us know your thoughts. And if you have questions regarding copyright law in the medical space, use the form below to request a confidential consultation.

Request Your Confidential Medico-Legal Consultation

You’ll receive a confirmation message upon submission. If you do not find this message immediately, please check your junk box.

Your confirmation email will contain a brief message from Dr. Segal, who will review your situation and determine whether Medical Justice can assist. Afterwards, our team will contact you to schedule your consultation.


ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.

Medspa Slammed with Class Action Lawsuit for Violating TCPA

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Ever heard of TCPA?

Most people haven’t.

It stands for Telephone Consumer Protection Act. And it’s the second most frequent federal lawsuit after employment law claims. And now a medspa is on the receiving end.

Simply put, it’s a cash cow for plaintiff’s attorneys. And why not? As Willie Sutton once opined… he robbed banks because that’s where the money was.

What is it and what triggers it?

In 2019, TCPA is mostly triggered by SMS text message marketing. The business send offers to its prospects by text message. Text messages are generally opened and read. It’s effective.

SMS texting implemented by automated systems is regulated by the Telephone Consumer Protection Act of 1991 (TCPA). TCPA is enforced by the FCC. The FCC updated its TCPA regulations in July of 2015. And there’s a recent appellate court ruling which considered whether the FCC over-reached. That ruling created more questions than answers. The litigation machine roars on.

Initially, TCPA was designed to prevent dinner being interrupted by pre-recorded junk marketing calls to landlines. That was in 1991. When we had land lines and actually ate dinner together. Today, TCPA mostly tackles text messages.

The statutory damages for violating TCPA is $500 per text or actual damages, whichever is greater. The statutory damages are up to $1,500 per text for willful or knowing violations.

It doesn’t take much for this number to get large quickly. 1,000 x $500 = $500,000.

Because the number can get large quickly, class action lawsuits in this domain are enticing to attorneys, even when a business has done everything right. There is no cap on aggregate statutory damages. Multi-million dollar settlements are not uncommon.

In Kolinek v. Walgreen, Walgreens settled a class action suit for $11 million. What horrible thing did Walgreens do? A consumer provided his mobile number to Walgreens when he picked up a prescription. The pharmacist allegedly stated the number would only be used to verify his identity for future refills. Walgreens then sent messages reminding the consumer to pick up his refills. (Here, the number was not actually used to “verify his identity”; it was just a helpful reminder about refills.) The consumer filed a TCPA class action lawsuit. Multi-million dollar settlement. By the way, each consumer received about $20. The lawyers received millions.

How does a business prevent such mischief? If the text message is advertising or marketing, the business must obtain express prior written consent from each consumer who will receive a text. The consumer cannot be charged for the text. There’s a laundry list of items that must be included in a consumer’s written consent to be TCPA compliant. And the burden is on the business to obtain this consent. Getting this consent is like getting HIPAA consent for every consumer – yet again.

We’re sure a business that sells TCPA services will tell its clients not to worry. But, are they willing to indemnify the client for potential multi-million dollar judgment? Most errors and omissions or general business liability policies do not cover TCPA claims or they explicitly exclude TCPA claims. Medical malpractice insurance claims do not cover TCPA claims.

At least with medical malpractice, a plaintiff needs to allege an injury. The doctor is typically covered with medical malpractice insurance. And many states cap damages.

With TCPA, the sky is the limit. The mistake can be innocuous. And insurance is generally not available to ease the sting.

Still, it IS possible to promote robust SMS text message marketing campaigns and comply with TCPA. The time to get this right is before there’s a problem.

We’ve been preaching about this for several years now. Healthcare was late to the litigation fiesta. If you are doing ANY text message marketing or just considering it, get in touch with us. Now. Don’t think. Act.

Request Your Confidential Medico-Legal Consultation

You’ll receive a confirmation message upon submission. If you do not find this message immediately, please check your junk box.

Your confirmation email will contain a brief message from Dr. Segal, who will review your situation and determine whether Medical Justice can assist. Afterwards, our team will contact you to schedule your consultation.


ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.

Request Your Confidential Medico-Legal Consultation


You’ll receive a confirmation message upon submission. If you do not find this message immediately, please check your junk box.

Your confirmation email will contain a brief message from Dr. Segal, who will review your situation and determine whether Medical Justice can assist. Afterwards, our team will contact you to schedule your consultation.