A Bevy of IVF Lawsuits. Do Clinics Need A Sperm/Embryo Double-Check?

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 world of IVF is fraught with emotional highs and lows. “Congrats, you’re pregnant” is some of the most exhilarating words a new family will hear. Particularly, when getting pregnant was a struggle.

In February 2023, A North Texas couple sued a fertility clinic allegedly for using the wrong sperm.

Camille and Derrick Bryan were treated in Fort Worth clinic. There, eggs were retrieved, and sperm captured. In March 2016, embryo transfer was performed, and nine months later, she gave birth to a boy. In 2018, Camille had a second successful embryo transfer, and delivered a baby girl nine months later.

A pediatrician commented on the son’s birthmark, one often seen in children of Asian descent. The family tested their son’s DNA. The results excluded Derrick as the father.

Wait, there’s more.

The lawsuit added that DNA tests showed Derrick was not the biological father of either child.

What happened?

Too soon to tell and the legal case was just filed.

Regardless, the Bryans say they love the children as their own. They just want to prevent such problems from happening to others.

Onward to Pasadena, California. Jason and Melissa Diaz had a son conceived at California IVF clinic. Jason was a cancer survivor. In 2018, he developed rare stomach cancer – hereditary diffuse gastric cancer. Two aunts had died of stomach cancer in their 40s. The family wanted an analysis of embryos so that they could exclude implantation of any with the deadly gene.

All the embryos were supposedly tested for the cancer gene. In 2020, one embryo was transferred, but ends in miscarriage.

The family was allegedly told another embryo was missing the gene. In January 2021, this embryo was transferred, and the child was born in September.

The family recently learned their son does have the deadly gene, and will need surgery to remove the stomach, at some point.

The clinic stated:

“We deeply empathize with this family’s situation,” adding that the Diazes “wished to have a male embryo transferred, which we carried out according to the family’s explicit wishes and in accordance with the highest level of care.”

It’s not clear if the clinic is laying out the defense that the family was aware that a remaining embryo had the cancer gene, and, despite that information, wanted that embryo implanted. That seems hard to believe, given the family supposedly sought care to identify embryos without the cancer gene. If that is indeed what happened, I’d expect the paper trail to be a mile deep that the family had knowledge and provided consent.

IVF is an effective tool to identify select embryos at risk for specific diseases.

Basically, PGD involves extracting a single cell from an eight-cell embryo (created via in vitro fertilization) and analyzing the DNA of that single cell for the presence of one or more disease-associated genetic alterations. Then, only those embryos without the disease mutation are implanted in the mother’s uterus.

Introduced into clinical care in the early 1990s, Pre-implantation Genetic Diagnosis (PGD) was first used for determining the sex of embryos to minimize the likelihood of transmitting fatal sex-linked disease genes to offspring. If there were a family history of Duchenne muscular dystrophy (DMD), for example, parents might choose to undergo embryo screening to identify female versus male embryos and then have only the female embryos implanted. (DMD is a recessive X-linked disease that affects mostly males.) Since the 1990s, clinical use of PGD has expanded from embryo sexing to single-gene diagnostic testing, such as for Huntington’s disease. Today, reproductive clinicians regularly use PGD to diagnose some 170 different conditions, with two of the more common being cystic fibrosis and hemoglobin disorders (e.g., Cooley’s anemia).

From capturing sperm and eggs to analyzing genes in embryos, to eggs/embryos accidentally thawing prematurely, so many things can go wrong with IVF.  Fortunately, the news “Congrats, you’re pregnant”, is good news, and stays good news.

Perhaps one answer is to treat the process no differently than doing a time- out before a surgical procedure. Confirm right patient, right side, right level. In this case, right sperm, right egg, right pre-implantation genetic diagnosis. And have two people sign off on clearance.

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.

Serving as an NFL Physician. When It’s Not Glamorous.

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.

 

Being asked to serve as team physician or consultant to an NFL team is flattering. It’s high profile. A vote of confidence. Hell, it doesn’t even have to be the NFL. Any professional sports team.

But with that vote of confidence comes risk. Like this recent news headline. Former NFL Pro Chris Maragos Wins $43.5 Million Malpractice Claim Over Knee Care.

Maragos didn’t suffer a stroke, blindness, or death. But he was not able to resume his career as a NFL player.

Maragos was 30 years old when he first injured his right knee during a game against the Carolina Panthers on October 12, 2017, according to his complaint filed in May 2018. It was his eighth year in the league. The injury was diagnosed as a posterior cruciate ligament (PCL) sprain, grade III. Bradley surgically repaired Maragos’ right knee and then oversaw and directed postoperative treatment with the support of Rothman Orthopaedics.

However, an MRI revealed that Maragos’ injury had been getting worse and that he suffered from a persistent partial tear at the posterior root of the medial meniscus and meniscus extrusion, according to the complaint.

At this point, according to testimony delivered during the trial, Bradley and Rothman Orthopaedics should have advised Maragos to limit his activities. Instead, they released Maragos, allowing him to run on dry land.

That further stressed Maragos’ knee, leading to additional complications and the premature end of his football career, according to an article published in FanNation.

The plaintiff’s attorney (Raffias) wrote:

“This case and this jury may have changed the course of history by now forcing these team doctors and trainers to stop worrying about when a player might return to play and start thinking about the next 50 years of a player’s life.”

$43 Million is an eye-popping number. Most physicians have $1/ $3M coverage. A judgment of $43 million leaves a big overhang of liability.

Not too long ago, a surgeon asked me to review an invitation to consult for a professional sports team.

His current carrier would not cover him for work with that team. He could find specialty carriers that would write an endorsement for that work – for a price, of course, in this case between $5k and $50k depending upon the coverage.

And such carriers want to know precisely what you will be doing. Meaning what specific duties. In some professional liability policies, restrictive wording limits or excludes coverage for professional sports. For underwriting purposes, a specific list of duties might need to be submitted to the carrier –  related to consulting or direct patient care. Crafting such a list could be a hornet’s nest. A list of duties could be exhaustive, depending on how specific; and be aware this could be a gray zone should a claim be filed. In addition, there can be an infinite number of subjective interpretations of any list of specific duties, and the carrier would be interpreting those duties you submitted.

Then, looking at the fine print, I noted language for indemnification. Here, if any allegation was made against the doctor for negligence, and the sports team was brought into this, the surgeon would have to defend them. Ugh. They’d indemnify the doctor only if they did something wrong. Consider the position that they understand the sports league, claims, and injuries to such players. The surgeon would be the one in the cross hairs. In my view, the sports team should have the doctor’s back and indemnify him even if he is determined to be negligent.

Next, what about $1M limits. In states with tort reform, sure, that might cover non-economic damages (such as pain and suffering). But, in virtually all states, there’s no limit for compensatory damages – such as medical bills, rehab bills, and lost wages. For professional athletes, not being on the playing field can result in a multi-million dollar hit. A $1M policy would be inadequate. Even a $10M policy would barely scratch the surface. Finally, what if you travel with the team? Do you need a license to practice in the other states (sometimes one can get a limited license depending upon the job description)? Which state law would address any claims?

Most team doctor interactions don’t end up in injury and litigation. Most of the time the doctor just gets kudos for taking care of the team. Flowers and chocolate. And there’s plenty of marketing panache that comes from being a team doctor or consultant. But the risk is nonzero. Unless managed well on the front end, the role can be fatal to your nest-egg.

So, what to do?

There’s always a balance between a practical answer (and) a legal answer. Understand your real risk before there’s a problem. Then decide how much risk you can transfer and how much you can tolerate.

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.

Doctors Sued for Copyright Infringement Again and Again

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.

 

Here’s a Friday afternoon buzzkill.  

Dear Dr. X.  

My firm represents two photographers whose original copyrighted works have been infringed by you. I attached a number of documents as evidence of that infringement. Exhibit A includes copies of the copyright-protected photos. Exhibit B includes documentation of your public use of these photographs. If you have been issued a license for such use, please contact our office immediately.  

Our client has a number of options. They can sue you for copyright infringement in federal court for actual damages and your organization’s profits related to the infringement.  

In straightforward copyright cases, it is often best for parties to settle without filing suit. This is especially true given the cost of litigating copyright cases. 

Here’s our proposal: 

Remove the infringing work from all or your media properties. 

Don’t do it again.  

And, yes, we need money. Let’s call it a day at $25k.  

The longer this lingers, the less inclined my clients will be to make nice. You have two weeks to respond.  

Sincerely, 

Your Friendly Copyright Attorney 

You look at the Exhibits. They are plain-vanilla pics of images supporting the text in your Instagram feed or blog. How did this happen and what to do? 

Many assume that if you find a picture on the internet, you can use it. The internet is free, right? 

Wrong. 

If you did not take the photo and you do not have a license to use the photo, you likely have infringed someone else’s copyright. Frequently, you can get pics to use that cost nothing. You might have a perpetual paid-up license because the photographer or graphic designer donated the image to organizations like Creative Commons. Its motto is “When we share, everyone wins.” 

Also, you can purchase inexpensive licenses from commercial entities like Shutterstock. Be careful when making such purchases. Some licenses may be for a limited time; some are perpetual. Also, the image might be limited to use on one website; maybe more. And geography. Details matter.  

Does a photographer have to register their copyright to enforce their intellectual property rights? Actually, no. That photographer can send a demand letter. But if they want to litigate, they do need to register their work. The US Copyright Office explains below

Do I have to register with your office to be protected?

No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.” 

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” andCircular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works. 

Well, now what? The clock is ticking. And $25k is a LOT of money for generic pics. 

Identify if the plaintiff and the firm are copyright litigators. They may be repeat “offenders.” If so, they are only too happy to do a Google image search and see where their works show up. Such as your practice. Then, they send demand letters. They try to price settlement with a number that will make it easier to say yes than litigate. If you don’t have a license, and they have a copyright,  then you likely have some liability.  Such claims are often addressed by low-price fixed fee attorneys to negotiate something you can live with.

We’ve discussed copyright law at length in a previous podcast.

We generally recommend at the bare minimum confirming that the photographers produced the original work. 

Alternatively, if you have a cyber liability insurance policy with media liability defense, it should cover copyright claims. You’ll need to see if you have a deductible if indeed you have coverage.  

Next, if you use a marketing company that posted the pics, make it their problem also. They should know better. Your agreement with the marketing company may spell out what happens if there is a copyright claim. And now would be a good time to ask your marketing firm to vouch for any images they have currently posted on your media assets. Make sure they know you cannot just pull random pics from the internet to use on your site. Not all marketing companies understand intellectual property law at the same level.  

Finally, if you take photos, use your own photos. They look more authentic and represent the work YOU do. If these are photos of your patients, make sure you get formal written authorization to do so before you post them. We can provide template authorization forms.  

If you choose to defend and litigate, you likely won’t get as lucky as Led Zeppelin in its appeal in overruling lower court loss in Stairway to Heaven copyright kerfuffle with the estate of Spirit guitarist Michael Skidmore.  

You think your weekend was ruined? Here’s what Skidmore’s attorney said after six years of litigation.  

Skidmore’s lawyer, Francis Malofiy, slammed the decision, saying, “What you have here is a big win for the multi-billion dollar industry against the creatives. I love Led Zeppelin, as a man, and I can separate my appreciation for them as four band members playing amazing music, but they’re the greatest art thieves of all time, and they got away with it again today. They won on a technicality. But they absolutely stole that piece of work.” 

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.

Avoiding Liability From Your Employee Handbook

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.

 

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eye. This attorney is a seasoned veteran.  The series includes several pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult an attorney licensed to practice in your state.

If your practice includes more than just you as an employee, then you may have an employee handbook. If you have an employee handbook now is the time to look for liability landmines within.

Let’s take a look at a few of these that commonly show up in medical practices:

  • Do not remove this manual from the premises

Well, that certainly sounds reasonable, right? The handbook is there for staff reference, and employees should therefore leave it where it is.

Actually, though, that instruction is unlawful under the National Labor Relations Act (NLRA).  

NLRA’s rationale is employees have a right to engage in collective labor-related action. All employees (other than supervisors) have the right to discuss their working conditions with each other and to act together to try to better those conditions. So any employer action that chills such activities violates the NLRA. In this case, a meeting of employees off-premises that requires the manual would not be able to take place, thereby limiting employees because they would likely not feel free to have such a meeting at the office.

What you need is at least two copies of the handbook – one that stays in the office for ready reference and one that a staff member can borrow.  Ideally, however,  every staff member should have their own copy so that no one can say they felt uncomfortable having to ask for the lending copy.

  • All practice matters are to be considered confidential and may not be discussed outside the office

Many doctors confuse this with patient confidentiality issues. There is no question that patient confidentiality must be respected fully by all employees and that both HIPAA and state confidentiality laws must be followed. The handbook should include a section on this that also explicitly states the penalties for breaching these rules.  In fact, such a section is helpful should a HIPAA complaint ever be made and a federal investigator come to the office or a lawsuit for damages be brought under state confidentiality law – you will want to show that you had strict policies in place for the handling of patient information.

What we are looking at here, however, are the business practices of the office, which can include what wages are paid or what benefits are offered. Trying to enforce confidentiality as to those issues violates the NLRA for a reason similar to the one that we just looked at.  In this setting, employees would also be prevented from discussing their working conditions.

This is particularly relevant in the Twitterverse because social media and online communications are Protected Concerted Activity under Section 7 of the NLRA, which states that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

This puts them under the category of activities that workers may engage in without fear of employer retaliation.

This is essentially an anti-union-busting law, but it is applied broadly to allow workers to be able to communicate about the circumstances of their work such as wages, benefits, and working conditions without fear.  There does not have to be a union involved or any intent to form one for it to apply.

  • Employees shall not discuss or reveal salaries or benefits received with/to each other

You very reasonably may not want employees comparing these because that leads to jealousy and dissension, but you actually cannot create this mandate since it violates the same aspect of the NLRA that we looked at in the first section.

  • Gossiping will not be tolerated 

This seems like a no-brainer – clearly gossiping is destructive to working relationships and can also violate patient confidentiality.  However, as phrased this leaves it entirely up to the employer to decide what constitutes gossip.  This section could be applied punitively to workers discussing the conditions of their work, which might include matters such as how other workers are dealt with preferentially, and so, again, would violate the NLRA.

This important workplace issue should instead be addressed in sections saying something like “Negative discussions about other staff members are destructive to workplace relationships. Employees are expected to be respectful to each other and to bring any issues with another staff member to their immediate supervisor.” and “Patient confidentiality must be respected at all times.  Any unauthorized revelation of patient information, including in social conversations, will be grounds for dismissal.” These clearly indicate that what is being limited is truly gossip about co-workers or patients and not labor organizing or protected communication.

  • Inform your immediate supervisor of any significant illness or disability

This is a very common error in medical practice employee handbooks, not in the least because they are, well, medically oriented businesses.

However, under the American with Disabilities Act (ADA), an employee does not have to reveal such information and the employer also cannot ask about such unless it limits the employee’s ability to carry out their job.  Since the actual issue is therefore whether an accommodation will be needed for the employee to keep working, if you have 15 or more employees and so are under the ADA this should instead be phrased as something like “If you require an accommodation due to a physical or mental condition you should inform your immediate supervisor of such requirement as soon as possible.” This satisfies your practical need to know whether you will have to engage additional or substitute staff to keep your office functioning efficiently while also clearly showing that your intention is to keep the employee on if reasonably possible rather than to use their new problem as a reason to fire them.

  • Pregnant employees who wish to continue working beyond their first trimester should submit a note from their physician that it is safe for them to do so

So here you are trying to reasonably accommodate the patient’s new medical condition while also making sure that it is safe to do so.  This should be acceptable, shouldn’t it? 

In a word, no.

Actually, this is the good deed that won’t go unpunished because it runs afoul of the Pregnancy Discrimination Act, which also applies if the practice has 15 or more employees. A pregnant employee who, for example, needs to be on her feet less, should instead present this as a need for an accommodation, as above.

  • All overtime must be authorized or it will not be paid

This is absolutely illegal – it is simply not your option to withhold pay for work done. The Fair Labor Standards Act requires hours worked to be paid. The proper way to address this issue is “All over-time must be pre-authorized.” 

You can then discipline or even fire a worker for foisting overtime on you that you did not want or need and that they did not get authorization for.  Of course, you will still have to pay them for the work they actually did.

  • Final paychecks will be held until (event such as all practice property is returned or all charts are completed)

Again, this is not up to you to limit. There is most likely a law in your state that specifies how fast a final paycheck must be issued and if there is not, then, the Federal law controls and that places the limit as being no longer than the employee’s next regular payday. 

You can independently hold an ex-employee liable for the value of property they do not return or the value of billings that their incomplete work interferes with but you cannot hold their paycheck hostage.

These are just a few examples of how easy it is to fall into a legal violation with what seem to you to be commonsense rules, potentially turning what you thought was your protection into a guided missile aimed straight at your practice by an aggrieved employee.  If your employee handbook is one that you have had around for frankly forever then it is probably time to hire an HR consultant to make sure that it is up-to-date on current law.

In summary: Seemingly innocuous or necessary rules in employee handbooks may actually violate federal or state law, including on labor organizing and disability.  A physician employer should have their handbook reviewed by an HR consultant to make sure that it conforms to current law.

Medical Justice Notes: [Not all practices have an employee handbook. Some attorneys even suggest that such a handbook creates more problems than it solves. On the other hand, it does create reasonable expectations, which, if followed, and if the provisions are legal, may help you sidestep employee litigation. No less important, employee litigation can be expensive. Consider purchasing employee practices liability insurance (EPLI). It is reasonably priced and covers many employee lawsuits you could only dream about – or have nightmares about.]

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.

Raving Patients and Reputation Marketing with Dr. Len Tau (Part 2)

This interview is for informational purposes only, not to be construed as legal or medical advice.

Chosen as one of the top leaders in dental consulting by Dentistry Today, Len Tau, DMD, has dedicated his professional life to improving dentistry for patients and other dentists.

After purchasing his practice, the Pennsylvania Center for Dental Excellence
in Philadelphia in 2007, Dr. Tau practiced full-time while consulting with other dental practices, training thousands of dentists about reputation marketing, leading the dental division of BirdEye, a reputation marketing platform, and hosting the popular Raving Patients podcast. He recently authored the book Raving Patients and 100+ Tips to 100 5-Star Reviews in 100 Days released in March 2022.

Dr. Tau lectures nationally and internationally on using internet marketing, social media, and reputation marketing to make dental offices more visible and credible as well as how to increase their case acceptance. 

Dr. Tau and Dr. Segal discuss reputation marketing best practices specific to dentists – but the take-home points resonate with all healthcare professionals. Join us.

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.

Meet Your Hosts

Chosen as one of the top leaders in dental consulting by Dentistry Today, Len Tau, DMD, has dedicated his professional life to improving dentistry for both patients and other dentists.

After purchasing his practice, the Pennsylvania Center for Dental Excellence
in Philadelphia in 2007, Len practiced full-time while consulting to other dental practices, training thousands of dentists about reputation marketing, leading the dental division of BirdEye, a reputation marketing platform, and hosting the popular, Raving Patients podcast. He recently authored the book Raving Patients and 100+ Tips to 100 5 Star Reviews in 100 Days released in March 2022.

In 2018, Len cut down to practicing dentistry two days per week to focus additional time and attention to helping other dentists build broad and compelling online footprints that attract hundreds of new patients to their practices.  In October 2021 he sold his dental practice but continues to provide his patients dental care 2 days per week while commuting from Parkland , Florida where he has resided since October 2020. In July 2022 Len announced his retirement from clinical practice effective December 2022 .

Len lectures nationally and internationally on using internet marketing, social media, and reputation marketing to make dental offices more visible and credible as well as how to increase their case acceptance.

Jeff Segal, MD, JD

Founder & CEO, Medical Justice
Dr. Jeffrey Segal is a board-certified neurosurgeon. 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.

Raving Patients and Reputation Marketing with Dr. Len Tau (Part 1)

This interview is for informational purposes only, not to be construed as legal or medical advice.

Chosen as one of the top leaders in dental consulting by Dentistry Today, Len Tau, DMD, has dedicated his professional life to improving dentistry for patients and other dentists.

After purchasing his practice, the Pennsylvania Center for Dental Excellence
in Philadelphia in 2007, Dr. Tau practiced full-time while consulting with other dental practices, training thousands of dentists about reputation marketing, leading the dental division of BirdEye, a reputation marketing platform, and hosting the popular Raving Patients podcast. He recently authored the book Raving Patients and 100+ Tips to 100 5-Star Reviews in 100 Days released in March 2022.

Dr. Tau lectures nationally and internationally on using internet marketing, social media, and reputation marketing to make dental offices more visible and credible as well as how to increase their case acceptance. 

Dr. Tau and Dr. Segal discuss reputation marketing best practices specific to dentists – but the take-home points resonate with all healthcare professionals. Join us.

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.

Meet Your Hosts

Chosen as one of the top leaders in dental consulting by Dentistry Today, Len Tau, DMD, has dedicated his professional life to improving dentistry for both patients and other dentists.

After purchasing his practice, the Pennsylvania Center for Dental Excellence
in Philadelphia in 2007, Len practiced full-time while consulting to other dental practices, training thousands of dentists about reputation marketing, leading the dental division of BirdEye, a reputation marketing platform, and hosting the popular, Raving Patients podcast. He recently authored the book Raving Patients and 100+ Tips to 100 5 Star Reviews in 100 Days released in March 2022.

In 2018, Len cut down to practicing dentistry two days per week to focus additional time and attention to helping other dentists build broad and compelling online footprints that attract hundreds of new patients to their practices.  In October 2021 he sold his dental practice but continues to provide his patients dental care 2 days per week while commuting from Parkland , Florida where he has resided since October 2020. In July 2022 Len announced his retirement from clinical practice effective December 2022 .

Len lectures nationally and internationally on using internet marketing, social media, and reputation marketing to make dental offices more visible and credible as well as how to increase their case acceptance.

Jeff Segal, MD, JD

Founder & CEO, Medical Justice
Dr. Jeffrey Segal is a board-certified neurosurgeon. 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.