Some letters from attorneys are crisp, concise, and to the point. They allege you did something negligent. They want a check. If you don’t deliver said check, they will sue you. Linear and algorithmic.

Then you have to analyze your real as well as practical liability.

Were you negligent? Did the patient have a bad outcome even though you performed at the standard of care? How big is the check demanded versus the amount of time you’ll invest defending the case? What will legal fees be if you pay out of pocket? Is the demand more in small-claims territory or one your carrier would address?

Some attorneys believe that just threatening to sue you is insufficient. They really want to squeeze you. They might add a paragraph on the bottom that states if the matter can’t be amicably settled within two weeks, they will file a complaint to the Board of Medicine. One problem just multiplied into two.

Are lawyers allowed to do that? Well, no.

We’ll use California as a prototypical example. Pull out your dusty copy of California Rules of Professional Conduct. These are the ethical tenets California lawyers agree to abide by.

Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges

(a) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(b) As used in paragraph (a) of this rule, the term “administrative charges” means the filing or lodging of a complaint with any governmental organization that may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(c) As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons* under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.

The lawyer can actually file the Board complaint behind the scenes. That is not prohibited. Even if the complaint does have the incidental effect of obtaining an advantage in a civil dispute. But he cannot threaten to file a complaint to add visible pressure to settle a case. 

An attorney making the threat is subject to disciplinary action, including disbarment.

Going into the time machine, the seminal case addressing this issue was Crane v. State Farm of California 30 Cal.3d 117 (1981). In that case, the Rule was 7-104, which morphed into a later rule 5-100, which morphed into the current rule 3.10. But the gist is the same.

An attorney sent a letter to the opposing side stating that if certain information was not received within five days, suit would be instituted and “the Department of Savings and Loan and the Attorney General’s Office will be requested to assist us in solution.” (Id. at 121.)

A notation on the letter indicated that copies were being sent to a named deputy attorney general and a named commissioner of the Department of Savings and Loan. The California Supreme Court concluded that when the facts were viewed from the perspective of the recipient of the letter “and considered in context,” including the notation that copies of the letter were sent to government agencies, the letter “could quite reasonably be construed as violative of rule 7-104.”

Various Bar Associations in California have disseminated the memo, advising against making threats.

“The import of Crane is that a threat to present charges need not be expressly stated in words of a threatening nature, but may be inferred from the circumstances; and, that the innocent subjective intent of the maker of the statement is not a relevant factor. If the statement can be reasonably interpreted as a threat to present criminal, administrative or disciplinary charges, in the context of a civil dispute, that is sufficient to constitute a violation of Rule 5-100(A).” (Los Angeles County Bar Ass’n Formal Op. No. 469 (1993). See Cal. State Bar Formal Op. No. 1989106; Cal. State Bar Formal Op. No. 198373.)

Following Crane, California ethics opinions have cautioned that even a communication by an attorney to the opposing side mentioning that he or his client will present a criminal, administrative or disciplinary charge against the opposing party or attorney can be interpreted as a threat under rule 5-100.

For example, if an attorney informs opposing counsel that his client intends to file an administrative complaint, “there is a definite risk that such a statement may be interpreted as an implied or veiled threat” prohibited by rule 5-100. (Cal. State Bar Formal Op. No. 198373.)

Does a lawsuit have to be filed for these rules to be applicable? No. The filing of a civil action is not a prerequisite to the applicability of Rule 3.10 or any of its predecessors.

“As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons under civil law, whether or not an action has been commenced.”

So, lawyers are within their ethical obligations to threaten non-frivolous litigation. They are within their rights to threaten litigation and incidentally file a Board complaint. They breach their ethical obligations if they threaten litigation and threaten to file a Board complaint if you don’t quickly settle.

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.

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.

Abortion is a lightning rod issue. It has been that way since Roe versus Wade was decided. It has been that way since Dobbs versus Jackson overturned Roe versus Wade. State legislatures are now able to codify their standards for what is and is not permissible.

What is the current law?

In 2021, Texas passed the heartbeat rule.

The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. The Texas Heartbeat Bill became state law with a trigger in place that subjected it to a Supreme Court ruling which has now effectively enabled it.

Doctors face criminal prosecution for abortions in Texas after a fetal heartbeat is detected (generally 6 weeks). The penalties can be onerous. Physicians who perform abortions in violation of the law can face life in prison.

More recently:

A new affirmative defense was created that applies to the prosecution of abortions. HB 3058 creates an affirmative defense for doctors and health care who perform an abortion in two scenarios:

1. An ectopic pregnancy (which is when a fertilized egg implants and grows outside the main cavity of the uterus); and

2. A premature rupture of the amniotic membrane in a pre-viable embryo (in other words, the mother’s water broke before the embryo was viable).

To prove the affirmative defense, the defendant must show that he or she exercised reasonable medical judgment in providing medical treatment for those complications. Keep in mind that as an affirmative defense, it is one that must generally be raised in court. In other words, it may not prevent an arrest and prosecution; if proven it would mean that criminal responsibility should not attach. The new law provides the same defense may be raised in a hearing with the Texas Medical Board.

Recently, news broke of a woman in Texas who sought a court order to allow her to terminate her pregnancy (post-heartbeat-detection). The lower court ruled in her favor. The Texas Attorney General appealed to the Texas Supreme Court. That Court put a hold on the lower court ruling to give it time to opine. In the meantime, the woman, Kate Cox, supposedly went out of state to have the procedure done.

On December 11^th, the Texas Supreme Court published its opinion. It’s only 7 pages, so it’s a short read.

First, it recapitulated the facts which triggered the legal case.

Kate Cox and her husband Justin are the parents of two children. Ms. Cox is about twenty weeks pregnant with a third child—one who has received a tragic diagnosis. The Coxes and their doctor sue to prevent the enforcement of Texas laws that generally prohibit abortion. These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception. The law allows an abortion when:

in the exercise of reasonable medical judgment, the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced. TEX. HEALTH & SAFETY CODE § 170A.002(b)(2).

The Court continued that courts don’t make this decision. Doctors do. They use reasonable medical judgment, an objective standard. The law defines “reasonable medical judgment” as “a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.” TEX. HEALTH & SAFETY CODE § 170A.001(4). In this case, the patient’s doctor supported the case with a “good faith belief” that the existing medical exception was relevant. Good faith belief is a subjective standard. Reasonable medical judgment is an objective standard. They are not the same.

Only a doctor can exercise “reasonable medical judgment” to decide whether a pregnant woman “has a life-threatening physical condition,” making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion. In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires. No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses. The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks. Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires. Despite this, the trial court ruled that a prospective abortion would “fall within the medical exception” to Texas’s abortion laws. Based solely on the verified pleading, it issued an order restraining the Attorney General from enforcing the abortion laws against Dr. Karsan and others related to the case. The State seeks relief from the trial court’s order.

A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.

Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard. Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it. The trial court erred in applying a different, lower standard instead of requiring reasonable medical judgment.

Though courts may not expand the statute beyond the Legislature’s remit, limiting a physician’s judgment by construing the exception more narrowly than the statute provides would likewise be error. For example, the statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.” The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.

A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed. Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a “life threatening physical condition” that places her “at risk of death” or “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”

The Court then closed by stating the Texas Medical Board is empowered to provide guidance related “to any confusion that currently prevails.” The Court seemed to be asking the Texas Medical Board to pre-emptively answer these questions as doctors.

“Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do.”

“The Board could assess various hypothetical circumstances, provide best practices, identify red lines, and the like. It has provided such needed guidance in other contexts, such as its COVID-19, Guidance & Frequently Asked Questions (FAQs), available at https://www.tmb.state.tx.us/page/coronavirus. And if the Board does provide guidance, it can request an opinion from the Attorney General, who has substantial civil-enforcement authority, regarding the legal effect of physicians’ compliance with the Board’s guidance. See TEX. GOV’T CODE § 402.042(b)(5).”

Given the steep penalties, it is understandable why physicians would want guidance and support in defining what is and is not allowed in Texas. Will such a task force be convened by the Texas Medical Board with recommendations published soon? I would not hold my breath.

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.

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 1^st 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 4^th.

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?

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.