Medical Boards, DEI, and Lawsuits. Identity Politics on Life Support?

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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.

 

Physicians are aware of the mantra “Do No Harm.” There’s a Virginia-based advocacy group also called Do No Harm. One of its missions is to erase identity politics in medical education and clinical practice. It has filed 150 discrimination complaints to the Office of Civil Rights under the US Dept of Education. And with the assistance of the Pacific Legal Foundation, it just filed a lawsuit against the Louisiana State Board of Medical Examiners. Actually, the lawsuit is against Governor John Bel Edwards, in his official capacity as the executive who nominates/selects medical board members.

The gist of the lawsuit is this.

Louisiana passed a law in 2018, Act 599, which specifies the governor must consider candidates ethnicities when making appointments from four entities: LSU Health Sciences Center at Shreveport, LSU Health Sciences Center at New Orleans, Louisiana Hospital Association, and a consumer list of candidates without background medical expertise (laypersons). Every other member from the four entities must have a minority background, such that at least two of the four seats will be filled by minority candidates during the next appointment cycle.

The Act does not define a minority.

Other requirements for physician members are straightforward: “resident of state for more than six months, currently licensed and in good standing to engage in practice of medicine in Louisiana, actively engaged in the practice of medicine in Louisiana, five years of experience in practice of medicine in Louisiana after licensure, not convicted of a felony, not been placed on probation by the Board.”

In the lawsuit, Do No Harm alleged the statute enables the exclusion of non-minority candidates, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The lawsuit catapult enabled liftoff after the Supreme Court decision last year ending affirmative action in higher education. There, Students for Fair Admission, Inv. versus President and Fellows of Harvard College, held “Harvard’s and UNC’s (University of North Carolina’s) admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.”

In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions on Thursday. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause, which bars racial discrimination by government entities.

Writing for the majority, Chief Justice John Roberts explained that college admissions programs can consider race merely to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student “must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote. The majority effectively, though not explicitly, overruled its 2003 decision in Grutter v. Bollinger, in which the court upheld the University of Michigan Law School’s consideration of race “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the Roberts opinion.

Back to the Louisiana lawsuit. It’s not the only one. Do No Harm has also sued Medical Board of California requiring CME courses cover implicit bias training, arguing it violates participants rights to free speech.

In 2019, the California Legislature enacted Assembly Bill 241. As of January 1, 2022, all continuing medical education courses in California must include discussion of “implicit bias.” But the efficacy of implicit bias training in reducing disparities and negative outcomes in healthcare is controversial in the medical community and lacks evidence. Because of that controversy, because they prefer to teach different, evidence-based subjects, and because they do not want to espouse the government’s view on implicit bias, Plaintiffs Azadeh Khatibi and Marilyn Singleton, as well as at least one member of Plaintiff Do No Harm, do not want to be compelled to include discussion of implicit bias in the continuing medical education courses they teach.  

Rather than respect the freedom and judgment of continuing medical education instructors to choose which topics to teach, California law now requires the Medical Board of California to enforce the mandate that all continuing medical education courses include discussion of implicit bias. Under the First Amendment to the United States Constitution, the government cannot compel speakers to engage in discussions on subjects they prefer to remain silent about. Likewise, the government cannot condition a speaker’s ability to offer courses for credit on the requirement that she espouse the government’s favored view on a controversial topic. This case seeks to vindicate those important constitutional rights.

Also in the firing line include governor of Tennessee (addressing Board of Podiatric Medical Examiners) and the medical journal Health Affairs. The common denominator is using race as the distinguishing feature in selecting candidates for leadership roles or positions.

Given that the US Supreme Court has re-defined the contours of what is permissible, oversight organizations are changing direction or messaging. For example,

Joe Knickrehm, vice president of communications for the Federation of State Medical Boards (FSMB), told Medscape Medical News that the organization recommends medical boards include appointees who “reflect the demographics of the state” and are “drawn from different regions…and diverse specialties.”

FSMB’s board membership policy further states that “sex, race, national or ethnic origin, creed, religion, disability, gender identity, sexual orientation, marital status, or age above majority should not preclude an individual from serving on the board.”

While being drawn from different specialties and different regions are ways to define diversity, that is not the colloquial meaning which has permeated public discourse in the recent past. It will be interesting to see how many, if any, of such lawsuits work their way to a decision. And whether some organizations will update their policies in advance  to render the matter moot.

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

Deconstructing What Texas Supreme Court Actually Said About Abortion

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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.

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 11th, 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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

This Defendant Does Not Want His Case Dismissed. He Wants His Day in Court.

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

HIPAA and Abortions

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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.

 

Some updates to HIPAA may be around the corner.

Let’s start with the status quo.

The current Privacy Rule permits, but does not require, covered entities to disclose protected health information to law enforcement officials without the patient’s written authorization. In the wake of the Supreme Court Dobbs decision, the legality of abortion is now a province of state law. States may adopt permissive or restrictive laws regarding abortion.

Every state is different.

What happens if a patient lives in a state where access to abortion (after a particular gestation period) is illegal and travels to a different state where that abortion is legal? If law enforcement wants to investigate, what are healthcare providers obligated to do? Allowed to do?

Currently, the healthcare institution in the permissive state could disclose the patient’s abortion to law enforcement investigating in the restrictive state. This institution would not be obligated to disclose, but they could disclose without the patient’s signed authorization.

Why might an institution in a permissive state do that? Well, not every person in a permissive state believes as the state does. It might seem unusual that an institution would perform the abortion, and then turn that person’s records over to law enforcement in another state when they didn’t have to. But this should not seem strange. Do you believe that 100% of the people at your institution believe the same things and act the same way? They don’t.

Anyway, the Department of Health & Human Services was directed to update HIPAA via Notice of Proposed Rule Making. This Notice means that an updated Rule is being considered, and those interested may submit comments.

Covered Entities would be prohibited from disclosing Protected Health Information (PHI) when delivery of reproductive healthcare falls within at least one of three sets of circumstances:

(1) The reproductive care is provided outside the state where the investigation or proceeding is authorized and where such healthcare is lawfully provided (e.g., if a resident of one state traveled to another state to receive reproductive healthcare, such as an abortion, that is lawful in the state where such healthcare was provided).

(2) The reproductive care is protected, required, or authorized by federal law, regardless of the state in which such healthcare is provided (e.g., if reproductive healthcare, such as miscarriage management, is required under the Emergency Medical Treatment and Labor Act to stabilize the health of the pregnant person).

(3) The reproductive care is provided in the state in which the investigation or proceeding is authorized and the care provided is permitted by the law of that state (e.g., if a resident of a state received reproductive healthcare, such as a pregnancy test or treatment for an ectopic pregnancy, in the state where the individual resides, and that reproductive healthcare is lawful in that state).

By the way, “reproductive health care” is not limited solely to abortion. It is broadly defined to include (but not be limited to), prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment of reproductive-related conditions such as ovarian cancer.

It’s not a done deal yet. HHS suggests once the updated Rule is finalized (and the Notice of Proposed Rule Making has run its course), all affected covered entities would at least need to adopt or alter some existing policies and procedures, enhance the security of any IT system that contains PHI, retrain certain employees on the new requirements, and revise certain business associate agreements that may be affected by the Rule.

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

Staying Out of Prison – Good. Not Being Reimbursed Your Legal Fees – Bad.

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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.

On July 5, 2017, Dr. Mayura Kanekar was indicted by a grand jury in New York for federal healthcare fraud.

Kanekar was charged with conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, and conspiracy to defraud by obstructing the lawful function of the Internal Revenue Service in violation of 18 U.S.C. § 371. On June 20, 2018, a grand jury returned a superseding indictment charging Kanekar with the following additional charges: conspiracy to pay healthcare kickbacks, in violation of 18 U.S.C. § 371; money laundering conspiracy in violation of 18 U.S.C. § 1956(h); subscribing to a false and fraudulent tax return in violation of 26 U.S.C. § 7206(1), and two counts of submitting false claims in violation of 18 U.S.C. § 287.

On June 13, 2022, after two weeks in trial, a jury found Kanekar not guilty. And her two co-defendants were also found not guilty. A positive outcome for her.

Kanekar filed a motion pursuant to the Hyde Amendment (more on that shortly) to be reimbursed for attorneys’ fees and other litigation expenses.

How much? $845,750.

On June 29, 2023, a judge denied Dr. Kanekar’s request. Freedom will have to be good enough.

What did the prosecution allege:

First, the “kickback scheme,” in which Kanekar purportedly paid the managers of the clinic in which Kanekar maintained an occupational therapy practice, in order to provide patients to Kanekar in exchange for payments; and second, the “false claims scheme,” in which Kanekar allegedly submitted fraudulent claims to Medicare using her unique national provider identifier number during periods when she was out of the country. The evidence introduced by the prosecution showed that from April 2010 through June 2016, Kanekar, through two companies owned by her, billed nearly $35 million to Medicare, and received $15 million from Medicare in return.

That was no trivial allegation.

In 1997, Congress passed the Hyde Amendment which allows district courts to award a prevailing criminal defendant, “a reasonable attorney’s fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.”

This is a tough climb.

“For the government’s position to be ‘vexatious, frivolous, or in bad faith,’ the prosecution must have been brought (a) to hector or intimidate the defendant on shaky factual or legal grounds (vexatious); (b) without even a reasonably arguable factual and legal basis (frivolous); or (c) with an element of intentional deceit or dishonesty (in bad faith).” Id. at 608-09; see also id. at 609 n.12 (summarizing the legislative history of the Hyde Amendment as discussed at length in United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999)).

“Vexatious” means: “[w]ithout reasonable or probable cause or excuse.” A “frivolous” pleading is one that is “clearly insufficient on its face,” a “frivolous” claim as one for which its proponent “can present no rational argument based upon the evidence or law in support of that claim,” and “bad faith” is “not simply bad judgment or negligence, but rather the conscious doing of a wrong because of dishonest purpose of moral obliquity.”

As the court noted:

Thus, the standard for awarding attorneys’ fees under the Hyde Amendment is “intentionally demanding.” Bove, 888 F.3d at 609 n.12; accord United States v. Reyes-Romero, 959 F.3d 80, 92 (3d Cir. 2020) (“[A] criminal defendant seeking costs and fees under the Hyde Amendment faces a ‘daunting obstacle.’”) (quoting United States v. Isaiah, 434 F.3d 513, 519 (6th Cir. 2006)); United States v. Manchester Farming P’ship, 315 F.3d 1176, 1184 (9th Cir. 2003) (remarking that the policy reason for the Hyde Amendment is “to protect defendants from outlandish Government prosecutorial misconduct” (emphasis added)). “An acquittal, without more, will not lead to a successful Hyde Amendment claim, as it was Congress’s intent to ‘limit Hyde Amendment awards to cases of affirmative prosecutorial misconduct rather than simply any prosecution which failed.’” Schneider, 395 F.3d at 88 (quoting United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001)). Nor is a 6 motion for attorneys’ fees under the Hyde Amendment “an exercise in 20/20 hindsight,” as “[t]he trial process is fluid and involves multiple strategic and evidentiary decisions, many of which cannot be predicted at the outset, and many of which depend on contested evidentiary and other trial rulings—not to mention the uncertainties associated with witnesses’ testimony.” Schneider, 395 F.3d at 87-88 (quoting United States v. Sherburne, 249 F.3d 1121, 1127 (9th Cir. 2001)). Therefore, “trivial instances of offending conduct” do not suffice to justify an award of fees under the Hyde Amendment; rather, the vexatious, frivolous, or bad faith conduct must be “substantial or significant.” Schneider, 395 F.3d at 90.

The judge ruled against Kanekar’s claim for lawyers’ fees. The judge noted that the prosecution’s claims were not vexatious, frivolous, or in bad faith.

The indictment charging Kanekar and her codefendants was just one part of a wide-ranging and sophisticated criminal scheme occurring over the course of years involving over a dozen defendants defrauding government healthcare programs of tens of millions of dollars.

The judge distilled Kanekar’s claims as follows:

In my assessment of the evidence presented at Kanekar’s trial, insofar as there may have been some weakness in the prosecution’s case, it amounted simply to its failure to convince the jury beyond a reasonable doubt that the defendants, including Kanekar, knew either that the employees or other agents they paid to manage their clinics were paying patients to come to those clinics for health services, or that it was illegal to pay the managers to refer them patients (even if the managers did not pay the patients).

In other words, the judge was not persuaded.

In effect, then, Kanekar’s motion is premised on the faulty conclusion that the government should have (or did) know Kanekar’s state of mind. Indeed, had the defendants waived their right to a jury and elected to proceed with a bench trial before me in this case, I would have found them guilty in light of the evidence establishing their knowing involvement in the underlying fraudulent schemes.

The judge seemed to believe that Kanekar should have kissed the ground because the jury allowed her to walk free. That would have to suffice. The fees paid to her lawyers apparently was her price for freedom. The Hyde Amendment would be of no help.

One of Kanekar’s arguments was that her billing company was the bad actor. And she was innocent.

The judge’s response:

To the extent that Kanekar had authorized Brunswick Billing to submit claims on her behalf, Kanekar was nevertheless obliged to submit accurate bills. Indeed, Kanekar understood that electronic billing using her personal and unique national provider identification number reflected her “legal electronic signature[,] and constitute[d] an assurance by the provider that the services were performed as billed,” and that Kanekar was “responsible for all Medicare claims submitted.” GX 1401. And the trial evidence demonstrated that the claims at issue were submitted under Kanekar’s national provider identical number during periods when Kanekar was traveling out of the country.

Three take home points:

If you have a bad billing company, odds are high you will be one of multiple defendants. Burying your head in the ground with willful blindness is not a great defense. Here, Kanekar got lucky.

Next, the Hyde Amendment was put in place as a remedy for prosecutorial misconduct. Prosecutorial misconduct, as articulated in the Hyde Amendment, is not common. The threshold for proving such misconduct is high. Here, Kanekar was unable to meet that threshold. Most criminal defendants exonerated at trial will likewise be unable to meet that threshold.

Finally, criminal defense lawyers are not inexpensive. But when your freedom is on the line, that is not the time to go cheap.

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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 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.

Suspended for Unprofessional Behavior – MD with Tourette’s Syndrome

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.

"Can Medical Justice solve my problem?" Click here to review recent consultations...

We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it 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.

An employed physician had a challenging conversation with a family about a patient hell-bent on signing out against medical advice. The physician had been working a very long shift and was slammed left and right with non-stop patients. He was frustrated, stepped back, and under his breath muttered an obscenity. It’s not even clear the family heard the obscenity.

A chief resident did.

He reported the physician. The physician was suspended for five days for “unprofessional behavior.”

The physician has Tourette’s syndrome. He had not disclosed his condition to his colleagues or employer.

Was the hospital within its rights to take action?

First, and importantly, the hospital is not Nostradamus. It cannot presume there is a biological cause for what it labeled as unprofessional behavior. Still, a five-day suspension for an under-the-breath obscenity that the family/patient likely didn’t hear, seems unduly harsh. If physicians were routinely suspended for uttering an occasional obscenity, even in stressful and difficult circumstances, our work force would quickly thin.

Next, Tourette’s syndrome is a spectrum disorder. Each patient manifests symptoms differently.

Symptoms vary from person to person and can range from mild to severe. It’s not uncommon for symptoms to change frequency over short time periods or to disappear for extended time periods (wax and wane). Common motor tics include: eye blinking, head jerking and facial movements. Common vocal tics include: throat clearing, sniffing and tongue clicking.

Coprolalia is an extreme and rare case of Tourette often sensationalized by the media. It is the involuntary utterance of obscene and socially unacceptable words and phrases. It is relatively rare in individuals with Tourette (only 10% of those diagnosed have this symptom), is not required for diagnosis, and does not persist in many cases.

While a hospital may not want its staff occasionally uttering an obscenity, the legal calculus may change if Tourette’s is considered a disability covered by the Americans with Disabilities Act.

For the ADA to be triggered, the hiring entity must have 15 or more employees. And the basic definition of “disability” is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

Hospital and healthcare employers may try to terminate an employee with a disability arguing they pose a risk to patients. It’s hard to imagine how occasionally uttering an obscenity would pose a risk to patients. Even then, the analysis does not stop there. If the employer can reasonably accommodate the employee’s disability, they have an obligation to do so. Imagine a scenario where a physician is hearing impaired. The hospital might argue that without sufficient hearing, patients might be placed in harm’s way.  But with a specific accommodation, say a hearing aid, this physician hears reasonably well. In that situation, the employer cannot argue the employee physician is dangerous. With the hearing aid, he isn’t.

Here’s what Congress wrote:

42 U.S.C. §12182(b)(3) specifies that nothing requires an entity to permit an individual to participate in or benefit from the facilities of such entity where that individual poses a direct threat to the health or safety of others. That provision continues to say that the term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policy, practices, or procedures, or by the provision of auxiliary aids or services. Therefore, it is fair to say that congressional intent includes the safety of others as being necessary.

My friend, Bill Goren, is a nationally recognized disability lawyer. He has written about the standards that apply in fields such as healthcare:

[I]n the licensing field the “ability to practice safely,” arises frequently. This opinion emphatically says that the standard is direct threat and that any threat involving safety requirements must be legitimate safety requirements based upon actual risks and not upon stereotypes.

The Equal Employment Opportunity Commission writes about “direct threat” as follows.

An employer only may exclude an individual with a … disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job. This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

      • the duration of the risk;
      • the nature and severity of the potential harm;
      • the likelihood that the potential harm will occur; and
      • the imminence of the potential harm.

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.

With that as a backdrop, the Americans with Disabilities Act is not a get out of jail free card to avoid accountability for an employee’s actions. From an ADA lawsuit against a telephone carrier in 1998:

[In Hamilton] we held that an employer was not liable for firing a man with PTSD who had an angry and profane confrontation with his manager even though the episode was arguably caused by his condition. Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052–53 (5th Cir. 1998). Though his outburst was arguably caused by his PTSD, it also violated company policy. Id. at 1053. We went on to say that “the ADA does not insulate emotional or violent outbursts blamed on an impairment.” Id.

In another case from the Fifth Circuit:

Another is Seaman. That case involved an employee verbally abusing his supervisor for denying his vacation request. Seaman v. CSPH, Inc., 179 F.3d 297, 298–99 (5th Cir. 1999). The employee suffered from bipolar disorder, and when he was fired for insubordination, he sued. Id. at 298–99. In affirming summary judgment, we said that though the employee’s reaction could have been attributed to his bipolar disorder, he could “not use the ADA as an aegis and thus avoid accountability for his own actions.” Id. at 301.

In yet another case from the Fifth Circuit, an employee with history of sleepwalking had a problem while on a business trip. In the middle of the night, she entered a male co-worker’s room (adjacent to hers) just after midnight, uninvited and wearing only a robe, and got into his bed. She apparently was sleepwalking. She was fired. She sued.

The district court granted summary judgment for NextGen (the employer). The district court concluded that Harkey (the employee) could not establish a prima facie showing of disability discrimination because she “fail[ed] to meet the requirements of proving a disability” and that “she fail[ed] to show evidence that she was subject to an adverse employment decision because of her sleepwalking.” The district court further held that NextGen fired Harkey for “misconduct”—a legitimate, nondiscriminatory reason—and that Harkey could not demonstrate that this was pretext.

That Harkey’s “severe, unprofessional, [and] inappropriate” conduct was purportedly caused by her sleepwalking disorder is of no matter. The ADA does not give employees license to act with impunity. See Seaman, 179 F.3d at 300–01; Hamilton, 136 F.3d at 1052. When Harkey sleepwalked into her male coworker’s room in the state that she was in, NextGen had a reason to fire her. So, the ADA is no barrier to her termination. Harkey has not shown she was fired because she had a sleepwalking disorder. She was fired because of what she did when she was sleepwalking.

It’s a wide gulf between terminating a sleepwalking employee for unintentionally jumping into a married man’s bed on a business trip compared with uttering a coprolalic obscenity heard by almost no one. Regarding the opening vignette, will the ADA save the physician’s reputation and career? Maybe.

What do you think?

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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.