Who is Entitled to be Called Doctor? Round Two.

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.

Around one year ago, we blogged about “Who is Entitled to be Called Doctor?

We deciphered California’s existing rule:

Introducing State of California Business and Professions Code §2054
2054. (a) Any person who uses in any sign, business card, or letterhead, or, in an advertisement, the words “doctor” or “physician,” the letters or prefix “Dr.,” the initials “M.D.,” or any other terms or letters indicating or implying that he or she is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he or she is entitled to practice hereunder, or who represents or holds himself or herself out as a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, without having at the time of so doing a valid, unrevoked, and unsuspended certificate as a physician and surgeon under this chapter, is guilty of a misdemeanor.
(b) Notwithstanding subdivision (a), any of the following persons may use the words “doctor” or “physician,” the letters or prefix “Dr.,” or the initials “M.D.”:

(1) A graduate of a medical school approved or recognized by the board while enrolled in a postgraduate training program approved by the board.

(2) A graduate of a medical school who does not have a certificate as a physician and surgeon under this chapter if he or she meets all of the following requirements:

(A) If issued a license to practice medicine in any jurisdiction, has not had that license revoked or suspended by that jurisdiction.

(B) Does not otherwise hold himself or herself out as a physician and surgeon entitled to practice medicine in this state except to the extent authorized by this chapter.

(C) Does not engage in any of the acts prohibited by Section 2060.

(3) A person authorized to practice medicine under Section 2111 or 2113 subject to the limitations set forth in those sections.

What does this mean without the legalese?

1. You either need to have an active license or be covered by an exception.

2. One exception is if you are licensed in another state (or even another country) and you do not represent yourself as someone practicing medicine in California.

3. But if you are not licensed in another state (or even another country) or not in an approved postgraduate medical school program, you are at risk for being charged with a misdemeanor.

What a difference a year makes…

In November 2022, California District Atty reached a settlement with a California nurse practitioner, Sarah Erny. She also holds a doctorate degree in nursing practice.

Sarah Erny, R.N., N.P., earned a doctorate degree in nursing practice. Shortly thereafter, she began promoting herself as “Doctor Sarah Erny.” From October2018 until March 2022, Ms. Erny hosted a professional website and was active on various social media accounts wherein she identified herself as “Dr. Sarah Erny.” While in most instances Ms. Erny indicated that she was a nurse practitioner, she failed to advise the public that she was not a medical doctor and failed to identify her supervising physician. Adding to the lack of clarity caused by referring to herself as “Dr. Sarah,” online search results would list “Dr. Sarah Erny,” without any mention of Ms. Erny’s nurse status.

The civil judgment requires Ms. Erny to pay civil penalties totaling $19,750 and to refrain from referring to herself as “doctor” in her role of providing medical treatment to the public. It also requires Ms. Erny to identify and make reasonable efforts to correct information on internet sites referring to her as “doctor” or “Dr.”

So, while Sara Erny holds a doctorate in nursing, the state mandated she pay ~$20k in fines and muzzle herself – never labeling herself as doctor in her care of patients.

News of Erny’s prosecution spread faster than a California wildfire among the nursing community.

Three California NPs, who also hold doctorate degrees in nursing, just filed a lawsuit against the California Attorney General and the Medical Board of California seeking Declaratory and Injunctive Relief. They want to be able to be called doctor and not run afoul of California Business and Professions Code §2054(a).

The three NPs are:

(a) Jacqueline Palmer. She earned a doctorate in nursing practice in 2020.

(b) Heather Lewis. She earned a doctorate in nursing practice in 2023.

(c) Rodolfo Jaravata-Hanson. He earned a doctorate in nursing practice in 2023.

As alleged in the lawsuit, “Defendant’s Actions Chill Plaintiffs’ Speech:

News of the actions against Dr. Erny appeared in the media, where Plaintiffs learned about them. As Doctors of Nursing Practice who have used, use, or intend to use the title “Dr.” in their practice and on websites and social media, Plaintiffs fear that Defendants will take action against them similar to those taken against Dr. Erny.

At the family practice clinic where she serves primary care clientele, Dr. Palmer’s colleagues, including physicians, have never expressed concerns that she is referred to as “Dr. Palmer, FNP.” When she interacts with her patients at the clinic, she explains that she is a Nurse Practitioner and not a physician. Dr. Palmer’s clinician’s jacket has her name embroidered with “Dr. J. Palmer, FNP-C.” She has signed her name using “Dr.” and qualified with “FNP” on official clinic documents.

Dr. Palmer has never misrepresented to anyone, directly or indirectly, that she is a physician, nor have her patients or physician colleagues mistaken her for a physician.

Since learning about Defendants’ actions against Dr. Erny, Dr. Palmer no longer signs her name with the title “Dr.” She has hung up her clinician’s jacket embroidered with “Dr. J. Palmer, FNP-C” on the front. She has asked others in the clinic not to refer to her as “Dr.” and has refrained from referring to herself that way. Dr. Palmer fears that Defendants will open an enforcement action against her.

A recent DNP graduate, Heather Lewis intends to change her business cards, office name plate, and scrubs to accurately reflect her latest accomplishments, specifically to read “Dr. Heather Lewis, FNP-C, DNP.” On social media, Dr. Lewis truthfully describes herself as “Dr. Heather Lewis, FNP-C, DNP.”

Since learning about Defendants’ actions against Dr. Erny, Dr. Lewis now fears that Defendants may open an enforcement action against her.

The three NPs are alleging a violation of their First Amendment Right to Freedom of Speech. They want California Business and Professions Code §2054 declared unconstitutional under the First and Fourteenth Amendments of the US Constitution.

If they win, Dr. Phil, Dr. Dre, and Dr. Jill Biden will be able to rest easy.

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.

How Bad Can a Data Bank Report Be?

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.

David Hetzel, a Gynecologic Oncologist in North Carolina, just filed a lawsuit against a healthcare facility where he worked. The lawsuit alleges, in 2020, he was placed on precautionary suspension. More on that shortly. At the time of suspension, he had one foot out the door. He was scheduled to assume Chief of Gynecologic Oncology at Texas Tech El Paso Tenet Hospitals. That offer was withdrawn. A negative National Practitioner Data Bank report related to the precautionary suspension was the ostensible reason.

Dr. Hetzel then obtained a position as the Chief of Gynecologic Oncology at the University of Texas Health East Texas. However, that job offer process stalled in March 2021, after the hospital learned of the NPDB report.

Rejection letters piled up.

From March 2021 through April 2023, Dr. Hetzel has continued to be denied positions as a gynecologic oncologist, likely due to the NPDB report. These denied opportunities included positions at the following hospitals: Marshfield Clinic (Marshfield, Wisconsin), Virginia Hospital System, Gunderson Clinic (La Crosse, Wisconsin), CARTI Health System (Little Rock, Arkansas), Genesis Care (Venice and Lakewood Beach, Florida), Mercy Health (Rockford, Illinois), Ironwood Cancer and Research Center (Phoenix, Arizona), Advocate Aurora Health (Milwaukee, Wisconsin), Meritus Health (Hagerstown, Massachusetts), Upstate Medical University (Syracuse, New York), Northwell Health (Long Island, New York), University of Miami and Holston Valley Hospital (Kingsport, Tennessee).

In January 2022, Dr. Hetzel was hired at Ironwood Cancer and Research Center in Phoenix, Arizona, pending a background check and licensure in Arizona. Dr. Hetzel was informed on October 1, 2022, that Ironwood’s offer was being withdrawn due to NPDB and temporary suspension.

Dr. Hetzel also applied for a medical license in the State of Arizona, which was denied because of the NPDB report and temporary suspension which led to a greater than two-year unemployment gap. The Arizona Medical Board offered Dr. Hetzel only a probationary license, which would have led to yet another inappropriate NPDB entry.

Now to what happened?

On March 2, 2020, Dr. Hetzel performed surgery to debulk a massive gynecologic tumor that invaded a patient’s abdomen.

He successfully removed the anterior abdominal tumor, resected the cancerous omentum, and removed tumor from the right and left colic gutter. He resected the uterus, ovaries, and fallopian tubes, then dissected the largest of the tumors, debulking the tumor in the pelvic area to the extent that could be accomplished.

So far, so good.

During the procedure, Dr. Hetzel also observed that the tumor heavily affected the bowel and colon and understood that an enterotomy caused by the tumor had developed in the very proximal small bowel near the duodenum. Given the nature of the tumor and its proximity to the bowel, it was impossible to bypass it without mobilizing the duodenum. Dr. Hetzel made the intraoperative decision to involve a hepatobiliary surgeon and surgical oncologist. The hepatobiliary surgeon and surgical oncologist did not mobilize and bypass the bowel at first but rather continued to debulk the tumor to such an extent that they ultimately removed the patient’s colon and all of the small bowel with a high blood loss – which was a complication and risk of the surgery.

The next day, March 3, the Chief of Staff and CEO placed Dr. Hetzel’s clinical privileges on precautionary suspension, based on the above-referenced complication and two other intraoperative organ injuries over the prior six months.

Interestingly, Dr. Hetzel’s portion of the procedure had been performed successfully. It’s not clear the hospital was even aware of who did what portion of the procedure.

The Credentials Committee was scheduled to review and consider the precautionary suspension, and to meet with Dr. Hetzel to hear his version of events. Dr. Hetzel stated he was not contacted.  The Credentials Committee supposedly had zero members that performed the same type of procedure performed by Dr. Hetzel, gynecologic oncology.

On March 10, 2022, the Credentials Committee modified the precautionary suspension to a “lesser sanction with conditions.”

On March 25, 2020, Dr. Hetzel received a letter from the CEO and Credentials Committee Chair, stating that the Committee had again imposed a precautionary suspension of Dr. Hetzel’s privileges pending the full investigation.

Starting to feel like a ping-pong ball.

On April 3, 2020, Dr. Hetzel provided a response letter to the Committee explaining the reasonableness of his actions, which fell within the standard of care for a physician with his training and experience.

On April 10, 2020, Dr. Hetzel met with the Investigating Committee. On April 17, 2020, and April 22, 2020, Dr. Hetzel provided the Investigating Committee with additional written responses.

Following this investigation, the hospital concluded that the clinical care that was the subject of the initial precautionary suspension did not warrant a limitation on Dr. Hetzel’s clinical privileges.

On April 23, 2020, the Committee modified Dr. Hetzel’s precautionary suspension and fully restored his privileges, subject to Dr. Hetzel’s satisfactory completion of a fitness-for-duty evaluation.  As to the purpose and scope of a fitness-for-duty evaluation, the lawsuit is mute.

On May 4, 2020, the hospital initially reported Dr. Hetzel’s investigation to the National Practitioner’s Databank for removal of privileges due to a professional review action under 45 C.F.R. § 60.12, and/or for negative actions or findings taken by peer review organizations under 45 C.F.R. § 60.12.

Dr. Hetzel sued arguing that the precautionary suspension was not the result of a professional review action, a prerequisite for reporting to the NPDB. This will be a tough climb. A summary suspension must be reported to the Data Bank if it is:

  • In effect or imposed for more than 30 days
  • Based on the professional competence or professional conduct of the physician, dentist, or other health care practitioner that adversely affects, or could adversely affect, the health or welfare of a patient, and
  • The result of a professional review action taken by a hospital or other healthcare entity
  •  

In addition, summary suspensions imposed for an indefinite length that have not lasted more than 30 days but are expected to last more than 30 days, and that are otherwise reportable, may be reported to the NPDB. If the summary suspension ultimately does not last more than 30 days, the report must be voided.

Here’s the calendar.  It’s confusing. It sounds like there was some type of restriction in place for more than 30 days. The initial restriction, a precautionary suspension, began on March 3rd. 

On March 10, a lesser sanction with conditions was implemented.

On March 25th, precautionary suspension was again implemented.

On April 23rd, the precautionary suspension was lifted, and privileges were restored, subject to Dr. Hetzel’s satisfactory completion of a fitness for duty evaluation. I’m assuming that condition took time to execute, but the lawsuit is mute on that.

Is a summary suspension a professional review action? Typically, yes.

The NPDB treats summary suspensions differently from other professional review actions because the procedural rights of the practitioner are provided following the imposition of a suspension, rather than preceding it. A summary suspension is often imposed by an official (for instance, the chairman of a department) on behalf of the hospital or health care entity for the purpose of protecting patients from imminent danger. Commonly, this action is then reviewed and confirmed by a hospital committee, such as a medical executive committee (MEC), as authorized by the medical staff bylaws or other official documents (e.g., rules and procedures, standard operating procedures). Summary suspensions are considered to be effective when they go into effect, even though they may be subject to review by some committee or body of the health care entity according to the entity’s bylaws or other official documents.

For purposes of reporting a summary suspension to the NPDB, if the summary suspension is confirmed by the review body, the action is considered to have taken effect when it was first imposed by the hospital official. If a summary suspension is in effect for more than 30 days before an action is taken by the authorized hospital committee or body, it must be reported to the NPDB. If the authorized hospital committee or body does not confirm the initial action or takes a different professional review action, a Revision-to-Action Report must be submitted. If the authorized hospital committee or body vacates the summary suspension, the entity must void the previous report submitted to the NPDB.

If the summary suspension subsequently is modified or revised as part of a final decision by the governing board or similar body, the health care entity must then submit a Revision-to-Action Report to supplement the Initial Report submitted to the NPDB.

(From NPDB Guidebook 2018).

Let’s assume the first precautionary suspension was less than 30 days. Then the second restriction was modified to: “lesser sanction with conditions.” That lasted less than 30 days.

The next precautionary suspension lasted less than 30 days. Privileges were restored pending a fitness for duty exam. Let’s assume the fitness for duty exam was immediately completed.

If accurate, no individual restriction lasted more than 30 days, and there appeared to be multiple professional review actions. But, in aggregate, the clinical privileges were restricted more than 30 days? Is that reportable?

Perhaps, but unclear.

If a single professional review action produces multiple clinical privileges actions (for example, a 12-month suspension followed by a 5-month mandatory consultation period requiring approval of a department chair before the exercise of clinical privileges), only one report, reflecting the multiple actions taken, should be submitted to the NPDB. The reporting entity may select up to five Adverse Action Classification Codes on the reporting format to describe the actions taken. Reporting entities should use the narrative description to explain any additional adverse actions imposed.

A Revision-to-Action Report must be submitted when each of the multiple actions is lifted or otherwise changed. For the example in the previous paragraph:

    • If the Initial Report clearly states that the suspension is to end after 12 months, and the mandatory consultation period is to end after 5 months, and if these penalties are not changed and are fully met by the practitioner, no additional reports should be submitted
    • If, after the Initial Report is submitted, the suspension period is extended to 14 months or the mandatory consultation period is shortened to 4 months, a Revision-to-Action Report must be submitted when either change is imposed

If an adverse action against the clinical privileges of a practitioner is based on multiple grounds, only a single report should be submitted to the NPDB. However, all reasons for the action should be reported and explained in the narrative description. The reporting entity may select up to four Basis for Action Codes to indicate these multiple reasons. Additional reasons should be summarized in the narrative description.

In Hetzer’s case, there were multiple updates to his clinical privileging status, and, assuming the fitness for duty evaluation did not delay resumption of full privileges, no one restriction lasted more than 30 days. But his privileges were restricted in some capacity for more than 30 days.

This is all very confusing. What is not confusing is that the NPDB report made Dr. Hetzel essentially unemployable or under-employable. A shame.

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.

How to Gracefully Exit When You Don’t Want to Operate on an Elective Patient

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.

In many elective surgical practices, patients are scheduled weeks to months out. I’ll use plastic surgery for my example here. But the principle applies more broadly.

Imagine that a patient presents for a facelift. Or rhinoplasty. Or tummy tuck. Doesn’t matter.

You know you can do the job. It’s obvious what the patient needs. And it is squarely within your skill set. The patient agrees. You set a date. The patient puts down a deposit.

Then, things change.

You’re bombarded by scores of text messages at all hours of the day and night.

This patient is demanding. There’s no room for error. If you are off by a millimeter, you expect to be on the receiving end of an onslaught.

You start to wonder if this patient has a mental illness.

Perhaps, Body Dysmorphic Disorder (BDD).

But you’re not a psychologist or psychiatrist. You believe that if you tell this patient to part ways, they will double down with an online scorched earth campaign.

You start to fantasize about another career choice.

What to do?

First, remember, the customer is always right. But not everyone has to be YOUR customer.

Here’s a script that might help dial down the temperature.

1.  On our initial interaction, I believed, based on your presentation, I could perform a surgery that would make you satisfied.

2.  Based on our evolving back-and-forth correspondence, I do not believe, at this point, I can meet your expectations.

3.  More importantly, I am concerned you MAY have a mental health condition called BDD. I say “MAY” because I am not a mental health professional. I just screen for such conditions. Because if you actually do have that condition, aesthetic surgery is contraindicated. I generally refer such patients to a specialist to determine if indeed that is the case. If cleared, I will perform the surgery. If I learn the patient has BDD, then I wait until the professional says surgery can be performed.

4.  So, I am not saying “No, because.” I am saying “Yes, if.”

5.  This is no different than if a patient has a cardiac condition. I refer to a cardiologist for medical clearance first. Or if the patient has a possible history of seizures. I refer to a neurologist first. Regardless, we want to optimize for a potential surgical outcome and meet expectations.

Importantly, surgery is contraindicated in a patient with BDD. BDD is a mental health condition. And each additional cosmetic procedure just adds to the accumulating problem. Regardless of how objectively good the patient’s outcome might look post-op, the patient will not subjectively perceive it that way. In other words, using a scalpel to treat a mental health condition will not get either the patient or doctor to an optimal outcome.

How will such a patient react to this discussion?

It depends. Certainly, better over the long term than if you performed surgery and they become progressively more dissatisfied.

Interestingly enough, many such patients are relieved to learn there may be an explanation for the constellation of symptoms they have experienced and that someone took the time to dig deeper into root causes. This patient may not be happy today, or even tomorrow. But in the long term you may have truly helped them.

Finally, having a seasoned professional ready to accept this challenging patient in referral is key. That person should have the skill set to manage the acute conversation. They can assist with “damage control.”

Knowing when to operate, and when not to operate is part of our lifelong learning curve. Even when there is no perfect decision to be made, you should be able to mitigate the worst possible outcomes.

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. We also provide counsel specific to COVID-19. 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.

Leading Indicators of Future Bad Physician Behavior – Stabbing a Colleague in the Back to Multimillion-Dollar Fraud

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. We also provide counsel specific to COVID-19. 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.

 

Early detection is key to prevent or mitigate disease. Routine colonoscopy and mammography save lives. Or at least that’s what the literature suggests.

Is there early detection for sociopathic or violent behavior?

In 1963, JM Macdonald wrote an article called The Threat to Kill in the American Journal of Psychiatry.

The Macdonald triad (also known as the triad of sociopathy or the homicidal triad) is a set of three factors, the presence of any two of which are considered to be predictive of, or associated with, violent tendencies, particularly with relation to serial offenses. The triad was first proposed by psychiatrist J. M. Macdonald in “The Threat to Kill”, a 1963 article in the American Journal of Psychiatry. Small-scale studies conducted by psychiatrists Daniel Hellman and Nathan Blackman, and then FBI agents John E. Douglas and Robert K. Ressler along with Ann Burgess, claimed substantial evidence for the association of these childhood patterns with later predatory behavior. Although it remains an influential and widely taught hypothesis, subsequent research has generally not validated this line of thinking.

That said, if a local teen is setting animals on fire – just because, that’s probably not someone you want to invite to dinner. Most would agree such behavior is not healthy, even if it does not predict who may become a future rapist or murderer.

Are there early prognostic indicators for disciplinary action by boards of medicine?

New England Journal of Medicine published a study a number of years ago: Disciplinary action by Medical Boards and Prior Behavior in Medical School.

Disciplinary action by a medical board was strongly associated with prior unprofessional behavior in medical school (odds ratio, 3.0; 95 percent confidence interval, 1.9 to 4.8), for a population attributable risk of disciplinary action of 26 percent. The types of unprofessional behavior most strongly linked with disciplinary action were severe irresponsibility (odds ratio, 8.5; 95 percent confidence interval, 1.8 to 40.1) and severely diminished capacity for self-improvement (odds ratio, 3.1; 95 percent confidence interval, 1.2 to 8.2). Disciplinary action by a medical board was also associated with low scores on the Medical College Admission Test and poor grades in the first two years of medical school (1 percent and 7 percent population attributable risk, respectively), but the association with these variables was less strong than that with unprofessional behavior.

Then there’s the question of whether unprofessional behavior, as a leading indicator for future Board discipline, is caused by mental health challenges or more likely to be diagnosed in a person who exhibits such behavior (non-causal, just associated).

Special attention must be paid to ensure that addictions, affective disorders, and other mental health disorders are being addressed. A study of psychiatry clerkship directors found that medical students exhibiting unprofessional behavior were referred for mental health evaluation in more than three-fourths of cases. Mental health evaluations were the most commonly reported remediation strategy in a study of US and Canadian medical schools in 2012–2013. Similarly, in a review of 25 years of resident training records at 1 program, psychiatric counseling was the most commonly implemented strategy associated with successful remediation.

Which brings me to the case of Dr. Sohail Mamdani. Dr. Mamdani is in a lot of trouble with the federal government. He has his own headline on the Department of Justice website. Never a good sign.

Merced County Doctor Indicted for Multimillion Dollar Disability Insurance Fraud Scheme, Money Laundering, and Unrelated Drug Charges.

On Oct. 20, 2022, a federal grand jury charged Sohail Mamdani, 46, of Los Banos, with mail fraud and money laundering in connection to a disability insurance fraud scheme, and unlawful use of a DEA registration number and fraudulently obtaining possession of a controlled substance, U.S. Attorney Phillip A. Talbert announced.

The California Employment Development Department (EDD) runs a Disability Insurance program that offers worker-funded benefits to people who meet certain requirements and have had those requirements verified by their physician or medical practitioner. Mamdani was a medical doctor operating a clinic called Walk-In Medical Clinic in Los Banos.

According to court documents, between February 2020 and March 2022, Mamdani submitted over 6,000 initial claims to EDD for disability insurance payments despite having never seen or treated the majority of the claimants. As part of the fraud, Mamdani would charge the purported patient a fee for both the initial disability claim and any supplemental claims. In addition, in order to avoid federal reporting requirements, Mamdani structured financial transactions. The investigation reveals potential intended losses to EDD of up to $99 million dollars with potential actual losses of over $53 million.

Mamdani is separately charged with unlawfully using another doctor’s DEA registration number for the purpose of unlawfully obtaining controlled substances. Additionally, Mamdani wrote a number of fraudulent prescriptions in the names of other individuals in order to obtain controlled substances himself.

Any early prognostic indications?

In 2018, Dr. Mamdani wrote false, negative, and defamatory online reviews about a competing practice on Healthgrades and Google. All while tooting his own horn.

“Worst surgeon!!!!! Thanks to adventist Nurse we asked for a second opinion, and I was home the 2nd day I didn’t even require a surgery. As per Dr Scherer I needed a gastric resection. I will report this medical board this man should not be able to practice medicine. ETHICS!!!!!! DONOT thrust this…    [more]”

Joshua Dunn in Hanford, CA: “My mother was admitted for bed ulcer, and she is old and had these ulcer before so I know when they need to be treated after he cleaned her ulcer he told my family my mom doesn’t get a stool bag she will never heal. We trusted him my mom is in worst condition today then when she was ever this man has no…   [more]”

“Worst surgeon, my mother was treated a surgeon we chose for some reason / family reason Pt was assigned to Dr. Scherer the day he entered the room he is been pushing for my mom to have drastic procedure with stool back he is unable …   [more]”

The competing surgeon hired a digital forensics company to investigate. Based on what it learned, the competing surgeon filed a John Doe lawsuit to unmask the author of these posts. The evidence pointed to Dr. Mamdani or someone he influenced. If accurate, Dr. Mamdani allegedly violated California Business and Professions Code, Section 651, Section 2234(e), Section 2271, and Section 2272. These Sections address dishonest acts, false or misleading advertising, and anonymous (pseudonymous) advertising.

It’s unclear if such preliminary unprofessional behavior would have led directly to allegations of $100 M scheme to defraud the government. Perhaps there were intermediate steps between point A and point B.

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. We also provide counsel specific to COVID-19. 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.

Is a Chaperone in the Exam Room Enough?

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. We also provide counsel specific to COVID-19. 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.

A physician’s greatest nightmare is being accused by a patient of sexual molestation in the exam room. It comes in all shapes and forms.

“The doctor groped me while examining my breasts.”

“The doctor ground his groin into my knee while listening to my heart and lungs.”

Even this: “The doctor invaded my personal space while examining me.” Which begs the question, precisely how can a patient be examined if not by observing and touching the patient?

Think this only affects male physicians? Guess again. Yes, male physicians are the ones mostly accused. But in modern day, allegations of sexual improprieties are promoted as “equal opportunities.”

If you are on the receiving end of such a complaint, the patient may file a police report. This will get the ball rolling for a criminal court action.

This may lead to an investigation of your medical license, ending with discipline, including suspension or revocation of your license.

And civil action against your pocketbook. Will your professional liability carrier pay for a defense? Perhaps, depending upon how the allegations are framed. But it is unlikely to pay for a settlement or judgment, arguing that such actions are excluded from the plain language of the policy contract.

Merely defending such claims can cost a fortune, even if you win.

If you lose, well, you can imagine what might happen.

The traditional wisdom is to make sure there is a chaperone in the room, witnessing the entire examination. Certainly, when one is examining intimate body parts. This is the most important step. In the absence of a chaperone, the allegations devolve into she said, he said. Or he said, she said. Or he said, he said. And so on. You get the picture.

Stephen Bresnick, MD a California plastic surgeon wrote an excellent article about chaperones in Aesthetic Surgery Journal entitled Highly Publicized Litigation Against Doctors: How Plastic Surgeons Should Protect Themselves and Their Patients.

Download it. Read it twice.

His advice is easy to follow and may save your career. He argues the mere presence of a chaperone is not enough. He served as an expert witness defending a physician against criminal charges. Here’s what he wrote about tactics used by the district attorney during cross-examination.

The district attorney attempted to discredit the testimony of the chaperones present during the breast examinations, indicating that they could not recall the details of examinations performed over 5 years previously. In one case, the prosecution also suggested that the chaperones may not have been in the best position to see the full breast examination and could not determine the potential sexual nature of the examination. Although the medical record documented the name of the chaperone present during the examination, and the chaperone testified that they did not recall the physician ever doing anything inappropriate in their time working with him, the record did not include written statements documented by the chaperone that the examination was done professionally or appropriately.

A chaperone must be present during all breast/genital examinations of a female patient.

A female chaperone also may serve to comfort a patient who is ill at ease during the examination. If a female family member is present during the examination, it still is advisable to have a chaperone present to document what actually occurred, in the event that the patient and her attendee indicate that the physician acted inappropriately during the examination. Without a chaperone and proper documentation, there is little defense against anything they say. The chaperone should be introduced and positioned in the room so that they can see the entire examination. Second, it is important for the physician to explain what is going to be done during the examination and why. For example, if the plan is to palpate or displace the breast implant, explain the benefit and purpose of the examination.

Next, ask for verbal consent for the examination.

If they appear uncomfortable or do not give consent, do not proceed, and document the refusal in the patient’s medical record… Do not hesitate to refer them to another physician with whom they may feel more comfortable.

Finally, and IMPORTANTLY, add the following statement in the medical record.

The statement may read as follows: I, _______ _____________, served as a ____________ [breast/genital area] examination chaperone, and attended the entire examination performed by Dr ____________________ for patient ____________________ on _________ ______ [month/day/year]. I witnessed the complete examination, which was performed appropriately and professionally and according to the standard of care in our practice. Signed: ____________________ Date: ______ Time: ______.

For most physicians, your processes will change little. Though your documentation will be beefed up.

While many doctors will never be on the receiving end of a Kafkaesque false allegation, this documentation may save your pocketbook, your career, and your freedom. As they say, if you don’t have a parachute when you need it, you’ll never need one again. The same goes for the best-practice documentation if and when you cross paths with a false allegation of sexual abuse.

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. We also provide counsel specific to COVID-19. 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.

State Privacy Law as Rationale Used to Reprimand Physician Over Media Attention in Rape Case

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. We also provide counsel specific to COVID-19. 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.

 

The US has been abuzz in activity since the Supreme Court overturned Roe versus Wade in its Dobbs versus Jackson Women’s Health Organization decision. What was previously legal in all states soon became illegal in some states.

What’s the law in Ohio?

On April 11, 2019, Ohio Governor Mike DeWine signed the Human Rights and Heartbeat Protection Act, which bans abortion in Ohio after any embryonic cardiac activity is detected. On June 24, 2022, after the Supreme Court of the United States overturned Roe v. Wade, judge Michael R. Barrett lifted a preliminary injunction that had blocked state officials from enforcing the law against certain abortion providers, allowing the Human Rights and Heartbeat Protection Act to take full effect. The law of Ohio imposes felony criminal liability on anyone who performs or aids or abets an abortion after embryonic cardiac activity can be detected.

At the time of this posting, these restrictions were being litigated creating uncertainty for both doctors and patients.

Ohio’s Attorney general explained there are three exemptions to the state’s heartbeat act.

      • Cases of ectopic pregnancy
      • Cases that would cause death of the mother
      • Cases that cause a serious risk of substantial, irreversible impairment to a major bodily function of the mother

Which brings us to the case of a ten-year-old girl.

An Ohio family learned their ten-year-old daughter was pregnant, allegedly by rape. The family took their daughter to Indiana, where abortion was legal. She saw Dr. Caitlin Bernard, an ob-gyn employed by Indiana University Health.

This turned into a media story.

Indiana’s Attorney General called for an investigation into Bernard.

The Republican Indiana attorney general claimed that Bernard had a history of failing to follow state reporting requirements for abortion providers.

Then Indiana health officials released a document indicating she had, in fact, reported providing a medication abortion for a 10-year-old rape victim in the days after the Dobbs decision allowed Ohio’s abortion ban to take effect.

Attorney General Todd Rokita ultimately filed a complaint with the state Medical Licensing Board, accusing her of failing to report the girl’s sexual assault to Indiana officials and of violating patient privacy laws with her public comments.

Early in the media uproar, it was alleged the rape was a fabrication. But on July 10, 2022, an Ohio man was charged in the rape.

Gerson Fuentes, 27, whose last known address was an apartment in Columbus, Ohio, was arrested after police say he admitted to raping the child on at least two occasions. He’s since been charged with rape and [was] being held on a $2 million bond.

An internal investigation at Indiana University Health concluded that Dr. Bernard had not violated any privacy laws.

On May 25th, The Indiana Medical Board held a hearing which lasted fifteen hours.

What happened?

A majority of board members found that she had violated privacy laws by speaking about the case and voted to fine her $3,000 in addition to the reprimand. Dr. Bernard was exonerated for other allegations Dr. Bernard failed to appropriately report the rape to authorities. And the Board decided against more onerous penalties, such as suspension or license revocation. The Board concluded Dr. Bernard was fit to practice.

Dr. Bernard argued she did not disclose protected health information. The public never learned the patient’s name. And supposedly the public still does not know the name of the patient. But members of the Board concluded the details Dr. Bernard did provide to the media qualified as identifying information – the patient’s age, her rape, her home state, and her abortion. And the name of the rapist was eventually unmasked.

This case does little to clarify what characterizes unauthorized disclosure of protected health information. Given how ubiquitous our mobile phones are and how GPS is turned on by default, there are probably some in tech companies or their vendors who can reconstruct your identity by your location – such as whether you’ve been in a doctor’s office. Does a physician have to turn their office into a Faraday cage to comply with HIPAA?

The simplest workaround to Dr. Bernard’s Board complaint would have been to obtain the parents’ authorization to disclose some details about the case, limited to the bare minimum.

I have no idea what Dr. Bernard’s legal fees were to defend this case. And almost no Board hearing lasts fifteen hours.

I doubt this will be the last Board case on such topics. 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. We also provide counsel specific to COVID-19. 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.