Physicians discriminate against patients all the time. Pediatricians discriminate against the elderly. Ob-gyns discriminate against men. Urologists specializing in male infertility discriminate against women.

But you cannot illegally discriminate against patients.

There are federal and state laws against illegal discrimination. California’s Unruh Act is instructive.

The Unruh Civil Rights Act (California Civil Code Section 51) provides protection from discrimination by all business establishments in California, including housing and public accommodations, because of age, ancestry, color, disability, national origin, race, religion, sex and sexual orientation. 

The Unruh Act permits disparate treatment that is not “arbitrary, invidious or unreasonable.”

Many aesthetic practices limit their treatment based on certain patients they focus on – the aging face (so, they discriminate against the young), Asian rhinoplasty (so, they discriminate against non-Asians), African American skin treatment (so they discriminate against non-African Americans). What allows such practices to do what they do is they have a reason. Their background, training, and experience is limited to a narrow domain. Their results in their domain of excellence will be better than when they stray outside of that domain.

Many surgeons were trained to do a range of procedures. If they have not performed procedure X in 30 years, they likely are rusty. Perhaps it would be better to refer that patient to someone else. That someone else will get a better result. And the reason must be objectively true.

If you do not want to perform a superficial surgery on a patient with hepatitis C because of your perceived risk of sticking yourself with a needle, good luck with that. You may have a valid subjective reason to turn the patient away. But objectively, you would lose a case alleging disability discrimination. Just double glove.

Not surprisingly, in California all types of lawsuits are propelled, alleging discrimination.

Here are California cases where claims of age and gender discrimination were pushed back.

Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th1171 (4th Dist. 2006) (theater did not violate the Act by offering discount prices to “baby boomers” to attend a musical about that generation, inasmuch as it allowed greater access to the theater); Sargoy v. ADR Tr. Corp., 8 Cal. App. 4th 1039 (Cal. App. 2d Dist. 1992) (age-based preferences are justified by compelling state interests and are consistent with the public policy favoring assistance to the elderly). In Frye v. VH Prop. Corp., B246991, 2014 WL 69126, at *4 (Cal. App. 2d Dist. Jan. 8, 2014), the Court of Appeal in an unpublished decision affirmed the dismissal of gender discrimination claims against a golf course, for its offering of discounts and free gifts during Breast Cancer Awareness Month. The court noted that the public policy of promoting breast cancer awareness was “more compelling” than it was in Pizarro.

Third, courts have rejected claims of gender discrimination where the activity uses gender as a proxy for a different category of people—such as mothers or people at risk of breast cancer. In Cohn v. Corinthian Colleges, Inc., 169 Cal. App. 4th 523, 86 Cal. Rptr. 3d 401 (2008), for example, the court held that the defendant’s Mothers’ Day promotion, in which female attendees at a baseball game received a free tote bag, did not violate the Unruh Act because “the giveaway was based on motherhood, with gender only a secondary consideration.” That is, the intent of the promotion was not to honor women above men, but mothers against the rest of the population, and giving tote bags to adult females was a practical alternative to taking the time to verify that each woman who received a tote bag was in fact a mother. The court reasoned that because only women can be mothers, the discrimination did not emphasize an irrelevant difference or perpetuate an irrational stereotype.

So, discrimination against patients is permissible if it is not illegal discrimination. Disparate treatment is allowed so long as it is not “arbitrary, invidious or unreasonable.” There must be an objectively valid reason. This can include your medical background, training, and experience. You are not required to stumble through a procedure and deliver questionable results if it’s been years since you operated on a specific type of patient and if specific training and experience are required to deliver excellent results to THAT type of patient.

What do you think?

Medical Justice provides free 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 free consultation – or use the tool shared below.

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 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.

Insurance policies are contracts. You pay a premium. In exchange, the carrier covers a specific risk.

Life insurance is the simplest example. You pay a premium and the carrier pays a set amount to your beneficiaries if you die. Whether you die or not is easily determined. (At least most of the time it is easily determined…We won’t get into the unusual circumstance of a person who goes missing and is declared “dead” – for insurance purposes – after many years.)

Of course, the carrier may still deny coverage. There are terms and conditions. It covers the risk based on certain representations. If you have a history of cancer and do not disclose that detail to the carrier – when asked in the application-  and you later die of the same cancer, expect the carrier to deny coverage. The decision to accept the risk is based on specific representations.

If a carrier denies coverage when the policy suggests it should do otherwise, the policyholder may have a claim for bad faith. And the amount of money at play can dwarf what the carrier may have been on the hook for originally.

To be sure, a policyholder also has specific obligations.

For example, you must timely notify the carrier of a high-risk event. Assume you have a claims-made policy with an anniversary date of July 1^st. You perform a wrong level surgery on a patient April 15^th. (I know. Two unhappy events on the same day.) You take the patient back to the operating room the next day. You are aware of the high-risk event. You get a letter from a lawyer asking for records on April 22^nd. (I know, couldn’t the patient have at least waited until the sutures were removed?) You notify your carrier August 1^st, well after the policy’s anniversary date. Your claims-made policy has started a new year. This lawyer files a lawsuit On September 1^st.

Can the carrier deny coverage? It depends upon in which state you live. But, yes, the carrier likely can and will deny the claim. They will argue that they manage their reserves annually and you missed the deadline to report a reportable event.

If you learn one thing from this post, it is this. If you experience a high-risk event, strongly consider notifying the carrier ASAP. It will preserve your rights for the carrier to pay for a lawyer to defend the claim and pay a settlement/judgment if that is the ultimate outcome.

Sometimes, a carrier will scratch its head, writing that they are not sure, at this point, whether a claim is covered. Still, they will pay for an attorney to investigate and defend the claim. But they will reserve their rights to not pay a settlement or judgment (or if paid, claw back what they paid on the claim from you). Their duty to defend is broader than their duty to pay for a loss.

Now for the $52M verdict.

This story begins in 2012.

Dr. Pawankumar Jain, of Las Cruces, was accused by the New Mexico Medical Board of overprescribing opioids resulting in the death of at least 17 patients. Two of the 17 patients were Ruben Bonilla, Jr. and Serina Clark. Bonilla died from Dr. Jain’s injudicious prescribing of morphine in August 2010. He was 43 and was survived by 11 children. Days later, Clark died from Dr. Jain’s injudicious prescribing of opioids and other medications. She was 28 and was survived by three young children.

The doctor’s license was suspended by the Medical Board. The carrier learned of these high-risk events from someone other than the doctor – the insurance broker.

In 2012, [the doctor’s] insurance agent saw a television news story about the physician being accused by the state medical board of overprescribing opioids, resulting in the deaths of 17 patients. The next day, the agent obtained copies of documents from the state medical board, including a summary suspension order and a notice of contemplated action.

The notice of contemplated action specified that [the doctor] had deviated from the standard of care through injudicious prescribing, leading to approximately 17 patient deaths due to drug toxicity. Because the agent realized that lawsuits could be filed against [the doctor]  for the deaths, she sent the insurance company the paperwork from the medical board so the insurer would be aware of the potential claims.

However, when the insurer received the information, it did not investigate or seek more information as it was required to do. The insurer failed to get medical records or specific patient names, and none of the 17 deaths were recorded in the insurance company’s claims system (a failure to follow company procedure). Instead, the insurance company decided to cancel [the doctor’s] policy effective the following month.

The company sent [the doctor] a cancellation letter advising him that his policy was being terminated due to “license suspension, nature of allegations, and practice profile,” and offered him a tail policy to purchase.

The insurance company did not advise [the doctor] that he should ensure all potential claims were reported, including the 17 deaths, before his policy expired. The company also did not advise him that he had a claims-made policy and what that meant regarding future lawsuits that might be filed after his policy period expired.

About a year later, two of these 17 patients sued the doctor for the opioid-related deaths. When he was served with the summons, the doctor notified his carrier, PULIC. The carrier denied the claims.

The doctor’s life went from bad to worse. He and his wife of 35 years filed for divorce. He then filed for bankruptcy. The bankruptcy trustee filed a lawsuit against the carrier for failing to defend and pay claims related to the two deaths. This trustee then settled the case with the two plaintiffs by paying the families $680k from the bankruptcy estate. And by assigning the bad-faith lawsuit against the carrier to the plaintiffs.

The doctor was done with this case. The two plaintiffs could continue forward as if they were the policyholder.

The case continued into 2020, when a New Mexico District Court held that PULIC (the carrier) owed Dr. Jain a defense and indemnity for the Bonilla and Clark wrongful death lawsuits in 2013, that PULIC breached its insurance contract with Dr. Jain, and it violated New Mexico’s Unfair Insurance Practices Act. Early in 2023, an Albuquerque jury determined that PULIC also willfully violated the Unfair Practices Act and engaged in punitive conduct, resulting in a $52 million verdict for punitive damages.

Had Dr. Jain settled the case on his own (outside of bankruptcy), arguably he would have been the recipient of the $52M verdict. That would have been quite a payday. But those funds now belong to the plaintiffs.

Will PULIC file an appeal? Presumably. They may also negotiate with the plaintiffs, settling the case for an amount it can live with.

In this case, the carrier was aware of the high-risk events. While the doctor had a duty to notify the carrier of the high-risk events, it already knew about the cases, and their potential for litigation. Carriers say they need to be timely notified so they can properly allocate reserves to pay for such claims. The prior knowledge made it harder for the carrier to justify the denial of coverage.

What is not clear is whether the doctor actually purchased tail coverage. The reporting suggests he did not.

The second take-home point is this. If you terminate coverage with a carrier, and you have a claims-made policy, you should either purchase tail coverage or make sure the new carrier will cover any claims that pop up down the road for past medical care (nose coverage). You do not want a window of time lingering where no carrier is covering your risk for medical events that have not yet surfaced as bona fide legal claims.

If a carrier denies a claim, and you believe the policy language supports that they should cover, and you have met all your obligations, you may have a claim for “bad faith.” As you can see from Dr. Jain’s circumstances, a jury may award a sizable sum, well beyond policy limits.

What do you think?

Medical Justice provides free 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 free consultation – or use the tool shared below.

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 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.

A riveting podcast series (The Retrievals) highlights the stories of women who visited the prestigious Yale Fertility Clinic. Their allegations. For egg retrieval procedures, they received saline instead of fentanyl for pain.

The vials said fentanyl. Unbeknownst to everyone, a nurse was feeding her own habit, leaving the vials with no active ingredient.

When the egg retrieval procedures were performed, the patients had less sedation/analgesia than most dental procedures.

Yale settled with the Department of Justice. And lawsuits now abound.

Egg retrieval is not a particularly complicated procedure. With ultrasound guidance, a needle pierces the vaginal wall to access the ovaries. The eggs are removed by gentle suction. The procedure is described as relatively painless “and takes 20 to 30 minutes under twilight anesthesia.”

Relatively painless.

Not so at Yale.

In ‘The Retrievals’, a dozen victims describe feeling ‘gut-wrenching pain’ during the procedure; many had asked for more medication, but all were told that they had already been administered the maximum dosage. 

‘It was bad instantly,’ says a woman named Leah. ‘And it shouldn’t really be bad instantly, like you shouldn’t wake up and be in horrific nightmarish pain. But I woke up and it felt like someone had been inside me and gutted me.’ 

‘It was like someone had been inside me, scraped me hollow, and it was burning.’ 

Another patient, Laura says, ‘I remember thrusting my hips up and saying, “I feel everything!”‘

After the procedure, one patient texted her sister-in-law, baffled, and told her: ‘I could drive myself home right now, I’m that alert.’ 

“I was thrusting my hips and telling these people, like wide awake speaking to them, “I feel everything you’re doing!”‘

‘I just remember texting them that it’s hard to believe that we have a fentanyl epidemic where people are addicted because it did nothing to me.’ 

And on and on.

As many as 200 patients were alleged to have received saline, instead of fentanyl. The patients were told they’d be receiving midazolam for drowsiness, and fentanyl for pain.

Over a five-month period, Donna Monticone, a nurse at the clinic was stealing fentanyl and replacing it with saline.

In October 2020, after months of patients complaining that they suffered unimaginable pain during their surgeries, an anesthesiologist working at the clinic noticed that a cap came off a vial fentanyl too easily.

Within three days, Donna Monticone was questioned by authorities and denied taking the fentanyl at first. She later came clean when her drug test came back positive. 

She confessed to stealing vials of fentanyl from the storage room and injecting herself in the bathroom at work up to four times a day. Then she took the empty canisters home to fill them with saline solution, she swears that she used a clean needle every time.

She estimated that she tampered with 75 per cent of the fentanyl given to patients at the clinic. Some of the vials contained pure saline and some were a mix.

Monticone lost her job. The Department of Justice (DOJ) was notified. DOJ sent letters to ~200 patients explaining they were potential victims in a federal case.

Lawyers for plaintiffs believe the number of affected patients is even higher.

As for Monticone, she was a divorced mother of three in a custody battle with her ex-husband.

‘I was overwhelmed by the sense that I would never be free,’ said Monticone in court records. ‘That I would have to take more time off of work, find more money to pay the lawyer and engage in yet more litigation, I suddenly couldn’t see or think straight anymore.’

It was around this time that she resorted to stealing drugs from the clinic.

Monticone’s sentence was much more lenient than you’d expect.

Monticone was sentenced to just four weekends in jail instead of a recommended five year jail sentence.

U.S. District Court Judge Janet C. Hall also sentenced her to three months of home confinement and three years of supervised release.

The civil case against Yale is gathering steam. And whether Yale’s Fertility Center will be able to re-establish its reputation remains to be seen.

What do you think?

Medical Justice provides free 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 free consultation – or use the tool shared below.

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 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.