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.
Most people hate litigation. If they are sued, they’d like their case to be dropped.
Not this defendant. He wants to defend his case before the US Supreme Court.
Why?
He believes if the current case is actually dismissed, he’ll be sued again and again. He wants a final resolution. For him. And other similarly situated businesses.
Let me explain.
Deborah Laufer has physical disabilities and vision impairments. She has worked extensively as a “tester.” A tester searches for potential violations of the Americans with Disabilities Act, and then works with a law firm to collect a settlement from a business. It can be very lucrative.
Laufer filed a lawsuit in Maine against Acheson Hotels. She alleged that the website for a hotel operated by Acheson failed to provide enough information about the inn’s accommodations for people like her, those with disabilities. She alleged this paucity of information was a violation of the Americans with Disabilities Act.
A lower court threw out her lawsuit. It ruled that Laufer had no standing to sue. She had zero plans to actually visit the hotel. As a tester, she just wanted to find a cause of action. It concluded that she was not injured by the website’s lack of information. No harm, no foul.
This was then appealed to the 1st Circuit. This Circuit reinstated the lawsuit.
Different circuit courts in the US have come to different conclusions. Three circuit courts of appeals – the Second, Fifth, and Tenth – have rejected standing in “tester cases.” The First and Eleventh have held that allegations such as those in Acheson Hotels do establish standing. You need standing to actually sue.
When there is a split decision in the circuit courts of appeals, this is ripe for resolution by the Supreme Court.
And this case was scheduled for oral argument before the Supreme Court on October 4th.
Now, Laufer wants this litigation to halt. Why? If SCOTUS rules against her, that’s the end of tester cases in federal court for situations that have allowed her and/or law firms working with her to profit.
Laufer now asserts, via new counsel, Kelsi Brown Corkran of the Georgetown University Law Center,
the justices dismiss Laufer’s case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other “testers.”
Tristan Gillespie was Laufer’s prior attorney. Tristan is in a heap of trouble.
A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 “tester” complaints in one day, each seeking $10,000 in attorneys’ fees even though it was “highly improbable” that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers “not once, or twice, but hundreds of times,” and that he had “litigated his cases with his clients as an afterthought” – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.
Laufer’s new attorney said the case before SCOTUS should be dismissed so that the disciplinary actions against the attorney she used previously don’t become an unnecessary distraction.
Uh huh.
Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction “from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself.” Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit’s decision in her favor should not stand.
Adam Unikowsky, the lawyer for Acheson Hotels, said dismissing this case would be unfair to his client. The circuit split needs a resolution. And he wants SCOTUS to stick the final nails in the coffin to tester cases.
“Laufer’s litigation program,” Unikowsky contended, “was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer’s effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes” by avoiding a ruling from the Supreme Court in Acheson’s favor, which would block all such “test” cases nationwide.
If Laufer’s case is dismissed, Unikowsky suggested, Acheson could be sued again, even though it has spent substantial resources defending against her lawsuit. And more broadly, he added, it will “set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.”
Why should doctors care about this case? How does an ADA case involving hotels apply to them?
We featured two podcasts with Nick Pujji of the Dentons Law Firm focused on a scourge taking a bite out of West Coast physicians.
“There is a scourge taking a bite out of West Coast physicians. What kind of scourge? A legal scourge. Doctors of all specialties (but especially those in cash-pay specialties) have been targeted by frivolous lawsuits specific to website accessibility and the Americans with Disabilities Act (ADA). Thankfully, remedies exist. We spoke with Mr. Nick Pujji, of the Dentons Law Firm, at length about this topic. We discuss how doctors can reduce the risk they’ll be sued for frivolous ADA challenges – and what do to in the event they are sued. Mr. Pujji’s wisdom is invaluable – every doctor NEEDS to protect their practice BEFORE they sued. Our podcast has the details. (Episodes 65 and 66).”
The scourge in question?
A hearing-impaired tester “patient” navigated to plastic surgeons’ websites, noting that an occasional YouTube marketing video did not have closed captioning enabled. She couldn’t read the marketing message in the videos. Her attorney was collecting about $10k to $15k per settlement. This “patient” didn‘t even live in California where the surgeons worked. And she had no noticeable interest in having any surgical procedure done. She was a tester.
Will the SCOTUS decision affect tester lawsuits on website accessibility under ADA law?
Maybe.
There could still be lawsuits under state law. But perhaps the pendulum will swing in the other direction.
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.
Related:
1)These tester cases are frivolous. Thank goodness I am retired and do not need to face them.
2)This illustrates perhaps outrageously why contingency arrangements in general for lawsuits are open to nefarious conduct on the part of attorneys.
3)The class action lawsuit cases are also open to grand abuse. I have seen class action lawsuit cases where the attorneys raked in 1/3 of the payout just for filing the case with the court and getting it certified as a class. As I understand it, ALL such class action cases get settled. Why? Because the penalties for taking these cases to trial, if the case is lost, would bankrupt whatever company is being sued. This is legal extortion. Just like the tester cases.
4)But wait there’s more. Legal extortion also exists at the federal and state level.
First with the tobacco lawsuits against cigarette manufacturers. State AGs and US attorney’s filed case after case and the tobacco companies paid out billions in settlement dollars.
Did any of that money go to help tobacco injured patients?
Did any of that money go to help educate kids about the dangers of tobacco?
If so, can we see some accounting of where those funds were allocated?
After all we the public were the plaintiffs in those cases.
Did those funds go into state and federal general funds?
Of course they did.
5)But wait there’s more. Currently US attorney’s and State AGs are suing, first the opioid manufacturers, then the distributors, then the pharmacies, that dispensed opioids. Any physician prescribing “too many” opioids were sanctioned.
The payout from all of those entities regarding PRESCRIBED opioids, is in the multiple billions of dollars.
This is legalized extortion.
How much of those funds are actually going to drug treatment?
Some but not anywhere near enough.
Has there been any education to kids about the dangers of opioids?
Not that we have heard.
BTW, now that prescribed opioids are almost impossible to obtain, guess what the addicts are doing now? Instead of using hillbilly heroin (Oxycontin), they are using real heroin, dirty needles and all. Oh wait there’s more. The drug dealers wanting to ensure more addicts seeking an even better high, are now pushing illegally obtained fentanyl. The addicts are willing to take the risk of death to get a still better high.
The drug dealers have a free pass to bring fentanyl across the open border.
The manufacturer of the components of illegal fentanyl in China are free to manufacture as much as they can, and ship as much as they can to come across the southern border.
What is our federal US Attorneys or state AGs doing about that?
What no legalized extortion for the drug cartels?
Equal justice under law? Really?
Is it any wonder that the US citizenry has disdain for how the “Justice system” has evolved in the US.
So frivolous cases will continue, bleeding our citizen’s pockets dry (since after all, those businesses have to pass along those litigation costs as an externality cost to all of us).
Dropping a complaint is grounds for the plaintiff to ~request~ that a case be dropped because it’s moot. But at that point, it’s generally up to the defendant whether to drop it. This has been the situation with some frivolous laws that were being litigated. When cert got granted, the law was changed or nixed. This worked a few times, but after the sued party (state via its legislature) re-reversed and reinstated the offensive laws, SCOTUS or Circuit Courts got involved and said that no, the case doesn’t have to go away.
And then the worm turned. If it works there, it should work with SCOTUS. There are a few legal organizations, like the Institute for Justice and Alliance Defending Freedom that take these cases, always pro bono. IJ has taken over 400 cases, and argued before SCOTUS a number of times–always successfully.
Parenthetically, this is parallel to the cases of the Masterpiece Cake Shop where people wanting to intimidate and harass the owner kept trying to get him to violate his religious beliefs–not once, but twice. That the case wasn’t dismissed the second time is the ultra-travesty. Pretty much what I’ve come to expect from the Colorado bench.
This particular game for “fun and profit” underlines exactly what it means to “game a complex system in order to find loopholes and exploit them.”
It should be noted that any physicians who attempt similar machinations will be convicted of medical claim’s fraud and WILL go to jail for them.
Congress is not particularly bothered by lawyers who do the same thing. So we will never find a Representative Pete Stark interested in “felonizing” such practices from the attorneys.
This is what we get by allowing attorneys so much power. It WAS possible for powerful MD political groups to fight against Congress.
But they folded like cheap suits.
I wonder if any physician members of these professional associations were ever a target of these attacks?
Probably not.
Michael M. Rosenblatt, DPM