Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
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You received a demand letter from an attorney criticizing your web site. He alleges that it was not accessible by disabled patients, in particular, those who were hearing impaired. He specifically pointed to your videos which showed people talking, but closed captioning was turned off. He alleges his client was discriminated against and could not make an informed decision whether or not to see you. He described your office as a place of public accommodation, arguing that you are subject to the provisions of the Americans with Disabilities Act, and its state equivalent.
The amount he is demanding is 4 figures. Likely less than what it would cost to vindicate your name in court. This attorney knows the math. And to be fair, the closed captions setting on videos was set to “off.” You fixed that technical problem. Going forward the matter should be solved.
You fear that if you agree to settle this case, he’ll cash the check, and then send demand letters for 25 other prospective clients. Meaning, he’ll interpret your reasonable business decision as a sign of weakness and pepper you with new threats.
Well, you’d like to include a term in the settlement agreement that prevents this attorney, or anyone in his firm, from suing you for a similar matter down the road. More broadly, you don’t even want this attorney to solicit other such clients, advertising to anyone who may have been affected by your actions.
Can you do that?
No. I’ll explain why. Then recommend ways TO achieve reasonable protections.
Most, if not all states, mandate against “No suit” provisions in their codes of legal ethics. I’ll illustrate with New York.
The NY Bar published a summary in its Attorney Professionalism Forum.
The answer to your question starts – and mainly ends – with New York Rule of Professional Conduct 5.6(a)(2).
Rule 5.6(a)(2) states that “a lawyer shall not participate in offering or making . . . an agreement in which a restriction on a lawyer’s right to practice is part of the settlement of a client controversy” (emphasis added). As the italicized language indicates, the Rule’s prohibitions are “directed to lawyers on both sides of the restrictive agreement,” covering those who accept the limitation and those who demand it. [N.Y. City 1999-03 (1999)]. Comment [ABA Formal Op. 93-371 (1993)], while not formally part of the Rule, states succinctly, “Paragraph (a)(2) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.” The Rule has been included in New York’s ethics rules with almost identical wording for decades and appears in the ABA Model Rules and the rules in other states as well.
The central purpose of Rule 5.6(a)(2) is simple: to avoid restricting a lawyer settling one case from representing future clients against the same defendant because such restrictions are considered to pose three problems:
- They prevent the public from using the “lawyers who, by virtue of their background and experience, might be the very best available talent to represent those individuals,” and who can do it most efficiently.
- They reward the plaintiff based not on the merits of his or her case but on the defendant’s desire and ability to “buy off” plaintiff’s counsel.
- Demanding such a restriction can create a conflict for the plaintiff’s lawyer, who must weigh the client’s interest in settling a particular case against the lawyer’s own interest in securing future clients and work; this conflict is heightened if the lawyer already represents another plaintiff pursuing an action that would be affected by this restriction.
This Rule has not gone without criticism. One commenter argued it was an anachronism, illogical and bad policy. S. Gillers, A Rule Without a Reason, 79 A.B.A. Journal 118 (Oct. 1993). What are some of the criticisms?
- Lawyers are already allowed to tun down work for all sorts of reasons, including no reason at all. (With some caveats, doctors are also allowed to turn down prospective patients from their practices).
- The concern that future plaintiffs will be denied access to legal recourse is without merit. There are plenty of attorneys who could argue the same case. Just as there likely are plenty of doctors who could take care of a patient not admitted into a specific practice.
- All settlements already create some conflict of interest. If a plaintiff settles a case, they likely will receive less than they could have received at trial. Of course, there’s also a risk that the plaintiff will receive zero. Again, back to the medical analogy, a surgeon will be paid for surgery he performs. By using his medical judgment and recommending surgery he cannot sidestep the reality that he will be paid more handsomely if the patient chooses to have the surgery. A conflict of interest.
These criticisms have not gone without notice.
For example, the court in Feldman v. Minars, [230 A.D.2d 356, 359–61 (1st Dep’t 1997)] in what is probably best viewed as dicta, quoted Professor Gillers at length in concluding that “an agreement by counsel not to represent similar plaintiffs in similar actions against a contracting party is not against the public policy of the State of New York” (emphasis added) even if the Rule explicitly prohibits lawyers from entering into it. The actual holding of the case was that an agreement not to “encourage” (e.g., solicit) other plaintiffs to sue the defendants would be enforced even if an agreement not to represent other clients could not be enforced or could subject the lawyer to discipline. Much more recently, U.S. District Judge Furman was equally vocal in condemning the Rule and its rationale, though he also did so in dicta. [Ipsos-Insight, LLC v. Gessel, 21-CV-3992 (JMF), 2021 WL 2784634 at *7 (S.D.N.Y. July 2, 2021).]
In other words, in some jurisdictions, such agreements are legally enforceable, even if they raise disciplinary issues for the involved lawyers. Meaning, a deal is a deal.
See Lee v. Florida Dep’t of Ins., 586 So.2d 1185, 1188 (Fla. Dist. Ct. App. 1991); Feldman v. Minars, 230 A.D.2d 356, 658 N.Y.S.2d 614, 617 (App. Div. 1st Dep’t 1996) (holding agreement restricting a lawyer’s practice as part of a settlement was not against the State’s public policy). As a direct response to Feldman, the New York City Bar Association issued an opinion that, even if such an agreement is legally enforceable, a lawyer may not ethically enter into a settlement agreement that restricts her own or another lawyer’s ability to represent one or more clients. N.Y.C. Bar. Ass’n Formal Op. 1999-03.
In contrast, in other states, the term is considered against public policy, and its effect in a settlement agreement would not be enforceable. See, e.g., Cardillo v. Bloomfield 206 Corp., 411 N.J. Super.
574, 580 (App. Div. 2010); Jarvis v. Jarvis, 12 Kan. App. 2d 799, 802 (1988).
Clever workarounds are also breaches of legal professional ethics. For example, adding a term in the settlement agreement hiring that same plaintiff’s attorney for YOU will not work. There, the hiring would be done ostensibly to create a future conflict of interest, preventing this attorney from litigating adverse to you, his “new client.”
So, what can you do?
You can ask for reassurances, in writing, that as of the date of settlement, this attorney has not been engaged by similarly situated clients. You are not preventing some future action. But you are making an informed decision as to whether to settle today, based on the attorney’s representation.
If [the plaintiff’s attorney] is willing to answer that question and the answer is no, it likely would not be seen as a restriction on her right to practice to have her make such a statement as part of the settlement. See DeSantis v. Snap-On Tools Co., 2006 U.S. Dist. LEXIS 78362, *34 (D.N.J. Oct. 27, 2006) (similar statement made in class action settlement agreement did not restrict class counsel from deciding to represent clients adverse to defendant in the future).
The NY Bar also came to the same conclusion.
A lawyer refusing to agree to these restrictions should nonetheless be permitted to inform a defendant, as of the time of a settlement, whether and the extent to which the lawyer is aware of any other clients who have asked for representation on the subject matter.
Finally, it likely IS permissible to engage the plaintiff’s attorney down the road as YOUR attorney. But it cannot be part of the settlement agreement in play. It would need to be an entirely independent action well after the dust has settled.
In summary, a settling defendant cannot ethically mandate that the plaintiff’s attorney not sue him in the future. But, from a practical perspective, getting reassurance that there is not a bevy of suits waiting in the wings IS helpful information. And in cases where the underling triggering problem has been solved (in the example above, the website being fixed), the combination of reassurance and the problem being fixed should allow for reasonable REM sleep.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. 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 was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
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.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined 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.
I find a car that’s inconvenient for me to get in and out of. It doesn’t accommodate me. I can either sue the dealership and manufacturer or…I can just buy a different car. If I had a web site (never have, but still…) and it didn’t offer a text crawl, a prospective patient is more than welcome to look elsewhere for a different physician whose communications skill set well exceeds mine.
Apart from the subject matter, this is pretty much the same as the Masterpiece Cake Shop suits and the similar one in which a woman declined to create a website celebrating a same-sex wedding. There is zero way I would have settled this suit. And I would have unmanned the plaintiff’s attorney afterward. As publicly as possible.
Jeff
Extraordinary thinking, research and judgement.
This reminds me of folks,I guess bots, which will scan for certain copyrighted pictures, and then a lawyer demands a huge bank for damages. The solution to this potential problem is not to trust one’s webmaster to give you imaging in the public domain, but to get certification in writing that the image is not copyrighted and, in fact, in the public domain. My foreign webmaster put some images in a new website that he stated were in the public domain but were not. I paid for them and got receipts. Always best to be aware of problems and “not be blindsided”. Believe it or not, physicians don’t know everything in areas other of than what is in their own lane.
New construction or even improvements to existing offices that need to file with the zoning folks. Then, everything is no longer “grandfathered” in but have to be brought up to code. Well, the bathrooms must a 5 foot radius, have grab bars exactly as per the building code, have insulation about the pipes that are exposed, and a mirror in the right place and perhaps tilted down Well, there are people who go to these bathrooms with cameras and a tape measure and any violation gets a demand letter.
There are problems with our old friend OSHA and HIPAA administrative and HIPAA security. HIPAA privacy always has some new regulations that must be learned and then complied with. Some states like Texas has insane HIPAA regulations that must be attempted to comply with. At least a “good faith” attempt.
Docs, there is a War On Doctors, and don’t be blindsided
Richard B Willner
The Center for Peer Review Justice
Since 2000.