Will IVF Clinics Be Able to Afford Cost of Business in Alabama?

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.

The Alabama Supreme Court just ruled on a lawsuit that could shutter IVF clinics in the state. Or at least make their cost of doing business go up.

What happened?

An IVF Clinic was run by the Center for Reproductive Medicine (CRM) in Mobile, Alabama. In December 2020, a patient at the Mobile Infirmary Medical Center entered the cryogenic nursery where frozen embryos were stored. This patient was not authorized to enter. They removed some of the embryos and dropped some on the floor. These embryos were destroyed. How or why it happened, I cannot say.

CRM was part of the Mobile Infirmary Medical Center.

At least three couples (James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne ) received the bad news about their frozen embryos. They sued the fertility clinic and the hospital. Their lawsuit was based on an 1872 law called Wrongful Death of a Minor Act. To prevail, they would need to prove that the frozen embryos were minors who died.

The law lets parents sue for monetary damages “when the death of a minor child is caused by the wrongful act, omission, or negligence of any person.”

So, sue they did, arguing negligence, wantonness, and breach of contract.

The lower-level court dismissed all claims other than breach of contract. The families appealed. And won.

On or around February 20, 2024, the Alabama Supreme Court concluded that frozen embryos are children.

In the court’s main opinion, Justice Jay Mitchell referred to frozen embryos in turn as “embryonic children” and “extrauterine children.”

While the state’s Wrongful Death of a Minor statute doesn’t explicitly include “unborn children”—let alone “extrauterine children”—in its purview, “the ordinary meaning of ‘child’ includes children who have not yet been born,” asserted Mitchell.

Furthermore, Alabama’s Supreme Court “has long held that unborn children are ‘children’ for purposes of Alabama’s that law,” he wrote. The central question in this case, said Mitchell, is “whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed.”…

“neither the text of the Wrongful Death of a Minor Act nor this Court’s precedents exclude extrauterine children from the Act’s coverage.”

There were dissenting opinions.

Justice Will Sellers also rejected the idea that this is an easy and obvious call. “Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of ‘person,’ much less the definition of ‘minor child,'” he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain,” Sellers added.

Importantly, even interpreting the 1872 law to include unborn intrauterine children is a modern twist. Dissenting Justice Greg Cook wrote:

“In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a ‘minor child’ who could be killed.”

No other state has reached the same conclusion about frozen embryos. Justice Cook suggested that being “the sole outlier” should “cause us to carefully reexamine our conclusions.”

He concluded the decision could end IVF in Alabama, since “no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

Would insurance costs rise?

They’d have to.

Historically, veterinarians covered for professional liability paid low premiums for insurance. Non-economic damages are, for the most part, unavailable in veterinary medical lawsuits. There are exceptions, but the dollar value at play pales by orders of magnitude compared to people.[1] Pets are considered “property” or “chattel.” A cell phone is also considered property or chattel. If frozen embryos are treated as children, damages from lawsuits will also rise. For example, do non-economic damages affect premium costs to cover ob-gyns and neonatologists? Yes, they do.

From a practical perspective, one risk mitigation technique would be to forego freezing embryos. Implant all embryos that are created. This would, of course, make it harder for those trying to conceive. And it might make it impossible for those who want children but have to undergo treatments destroying or decreasing their likelihood of future fertility.

The Alabama Supreme Court looked overseas for supporting laws.

In Italy, “cryopreservation of embryos” is banned “except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation,” writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.

“These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life,” Parker concludes, writing that “certain changes to the IVF industry’s current creation and handling of embryos in Alabama will result from this decision.”

No less important, with the modern trend of criminalizing aspects of medicine that were previously the sole province of civil litigation, one could imagine zealous prosecutors filing charges for involuntary manslaughter or even intent to kill murder depending upon the facts of any given case.

The southern US state’s largest hospital [recently] paused its in-vitro fertilization (IVF) services in the wake of the decision, over fears it could expose them to criminal prosecution.

The University of Alabama at Birmingham health system said it would continue retrieving eggs from women’s ovaries. But it said it would halt the next step in the IVF process, in which the eggs are fertilized with sperm before being implanted into the uterus.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF,” the leading state medical provider said in a statement.

“But we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”

For IVF providers in Alabama, expect a letter from your professional liability carrier soon.

What do you think?

As this post is going to publication, the Alabama state legislature and governor are discussing a bill to exempt IVF (extrauterine fertilized embryos) from the downstream effects of the 1872 law. As to whether this will be enough to settle the IVF industry down remains to be seen. Some legal analysts have posited that given the Alabama Supreme Court ruling, a fix that sticks might require a state constitutional amendment – which would require more than just a legislative vote.

 

[1] In 2012, “the Louisiana Court of Appeals in Barrios v. Safeway Insurance Company upheld a $10,000 emotional damages award while taking “judicial notice of the emotional bond that exists between some pets and their owners and the family status awarded some pets.” https://www.dvm360.com/view/non-economic-damages-pet-injuries-are-veterinarians-expediting-evolution-law.

The Animal Legal Defense Fund (ALDF) reports that in 2014, Judge Eric Richardson of the State Court of Fulton County, Georgia, in a lawsuit by a pet owner against a kennel, held that a dachshund’s “intrinsic value” was a more appropriate remedy than replacement value and that the owners were entitled to compensation for veterinary fees and other non-economic elements. The kennel appealed. The ALDF filed a brief urging the Georgia Court of Appeals to affirm the trial court, arguing that companion animals are intrinsically valued family members and emotionally and financially worth more than their market value.

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.

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.

Texas Judge Tells FDA to “Unapprove” Abortion Pill. Prediction: DOA in Supreme Court

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. 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.

 

This blog deconstructs the recent Texas federal court opinion, explaining its rationale for revoking FDA’s decade’s old approval of mifepristone. Mifepristone is a compound widely used for medication abortions. I’ll also explain why this case if hurtling to the Supreme Court, and in my opinion, will be DOA.

Un-trigger alert. This blog post says nothing about our country’s attitudes towards medical or surgical abortions. So, no reason to get apoplectic. We’ll be discussing “process.”

What happened?

The case was Alliance for Hippocratic Medicine versus Food and Drug Administration.

The plaintiff, the Alliance for Hippocratic Medicine (AHM), argued that the FDA’s approval of mifepristone for pregnancy termination was impermissible under the Federal Food, Drug, and Cosmetic Act and asked for an injunction to immediately suspend its approval, removing it from the market.

District Judge Matthew J. Kacsmaryk issued a preliminary injunction suspending the approval of mifepristone on April 7, 2023, though postponed the suspension for a week to give the government the chance to appeal the ruling. On the same day, a Washington federal district judge issued a separate injunction forcing the FDA to maintain the distribution of mifepristone in at least 17 states and the District of Columbia.

Two competing rulings. In separate parts of the country. On the same day. There’s more drama percolating here than the Real Housewives of Atlanta.

The plaintiffs argued that the protocol for approving mifepristone failed to take into account the full risks of the medication. The plaintiffs argued that they will have to spend time managing such patients when these risks are realized.

Cases are adjudicated first on process, then on merit.

Here’s an example of process, the statute of limitations. A plaintiff has a limited amount of time to file a lawsuit. If he is damaged and believes his case has merit, he cannot sit on his rights. He must act. He has to timely file a lawsuit. It’s not fair to defendants to live in fear of a lawsuit 30 years after plaintiffs experienced some injury. Witnesses become disabled, demented, or die. They move. Evidence becomes stale. Records are lost or cannot be located. So, our legal system balances these challenges by allowing the plaintiff to file a lawsuit with the clock ticking. But not later than the law allows.

Process.

The plaintiff, doctors representing the Alliance for Hippocratic Medicine, argued they had proper standing to file this case. And they argued they will experience damages, a prerequisite for having standing.

The doctors representing the Alliance for Hippocratic Medicine argued the harm they and those like them suffered was not only the harm of being forced to divert time and resources away from their other patients, but also a constitutional injury. They alleged that when they are forced to complete an elective abortion by removing unborn children and pregnancy tissue this causes them to feel complicit in that elective abortion and violate their most deeply held moral, medical, and religious beliefs.

The judge appeared to agree. For now.

Does the plaintiff actually have proper standing? I don’t think so. The damages are speculative and lead to a slippery slope where everything could be litigated and no administrative decision would be stable.

More broadly, the standing argument pressed by AHM would effectively declare open season on health, safety and environmental regulations of all stripes. Under AHM’s theory, for instance, an auto repair shop would have standing to challenge an allegedly lax NHTSA auto safety regulation on the grounds that it will result in auto accidents that will result in more vehicles for the shop to repair. Standing does not work that way.

Adam Unikowsky makes similar point in his post:

The logical implication of the plaintiffs’ position is that medical organizations have standing to challenges literally all rules that are alleged to decrease safety in any way. Suppose OSHA lifts some safety standard. A medical organization can sue claiming that (1) this will make workplaces less safe, (2) hypothetical injured employees will come to the doctor-members, and (3) the doctor-members’ attention to their current patients will be diverted. Or suppose EPA alters some pollution rule. A medical organization can sue claiming that (1) this will cause people to breathe in more toxins, (2) hypothetical people who breathe in these toxins will seek medical care and come to the doctor-members, and (3) the doctor-members’ attention to their current patients will be diverted.

Usually, slippery slope arguments don’t work because courts are able to find a limiting principle, but here, none exists—plaintiffs’ argument is logically identical to those arguments. It’s interesting to note that the defendants’ brief makes this slippery-slope argument, and the plaintiffs’ reply brief ignores it altogether. They have to ignore it, because there are no responses to it.

In the case, the physicians argued that hypothetical future patients will come to them, and they will experience damages. They’ll have to leave the office and attend to these patients in the ER.

The same argument could be made targeting any medication approved by the FDA.

But the plaintiff cannot present specific facts demonstrating that any particular patient will force them to come to the ER.

There are other arguments which may shut this case down on process.

The statute of limitations to file this case expired.

The plaintiffs did not exhaust their administrative remedies before filing a lawsuit, even though regulation specifically required them to do so.

The plaintiffs claimed that the FDA’s actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), but failed to identify any particular provision of the FDCA that the FDA has actually violated.

So, my prediction. This will work its way up to the Supreme Court quickly. And be swatted down. Reversed.

Still, I’m loathe to speak with certainty about anything touching the US legal system. A jury let O.J. go free. At least the first time.

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.

The Most Frivolous Lawsuit Contest


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Ten years ago, we ran a contest, encouraging doctors to reveal if they had been involved in a frivolous lawsuit. We awarded a prize to the doctor who submitted the Most Frivolous Lawsuit. Cold comfort. Still, the winner did receive a free membership for one year with Medical Justice. We are running that same contest again. More on that in a moment.

Here were some of the submissions we received.

Failure to Diagnose Death:

A young woman was found at home on the ground by her family. CPR was initiated by family members. She had been “down” for an estimated thirty minutes before CPR was started. Paramedics arrived ten minutes later. EKG showed asystole. The paramedics were unable to intubate her or establish IV access. Transport time was yet another ten minutes. So documented time of asystole on EKG was 35 minutes before hitting the ER door. She was then intubated, a central line was inserted, and ACLS protocol was followed. She remained in asystole and was pronounced dead after fifteen minutes. Physician was named in the lawsuit because one of the blood tests noted a potassium just under 13. The allegation: failure to diagnose hyperkalemia. The actual cause of the hyperkalemia was “death and decomposition.”

Syllogism-You Practice in My Town. I Live in My Town. Ergo You Are My Doctor:

Neurosurgeon received a letter of intent to sue from a patient whose name he did not recognize. There was no medical record or billing statement to support that this mystery person had ever been a patient. Suit was filed and an attorney had to be hired to answer the allegation that the patient developed paraplegia from a spinal mass. The neurosurgeon was named because “he was the only neurosurgeon in the community.” The case was not dropped until the plaintiff was deposed and stated under oath he had never heard of this doctor and had no complaints with him.

Absence of Evidence Is Not Evidence of Absence:

A thirty-year old woman delivered a baby under regional anesthesia. The following day, she had a tubal ligation under general anesthesia. She complained to the staff that she could not find her dentures and the nurses look long and hard, to no avail. Chest and abdomen X-rays were performed, all negative, for a foreign body “from mouth to anus.” The patient was discharged. She developed throat pain and several days later was seen in an ER. An ENT physician ordered a CT and diagnosed peri-tonsillar abscess. The abscess was drained in the OR under general anesthesia. There was no mention of a foreign body in the CT scan report or the op-report. She was discharged the next day. Several months later she was evaluated by a gastroenterologist who found and removed a polyp from her esophagus. Still, there was no mention of a foreign body. Six years later the woman died. The original anesthesiologist was sued for “complications related to a broken denture” that presumably stuck in the patient’s throat for six years, even though a multitude of imaging studies and direct observations by other physicians failed to find the culprit.

These were but a sampling of the scores of submissions by physicians.

All right, let’s do it again.

Send us a brief description of what you believe qualifies for the most frivolous lawsuit. Email us at infonews@medicaljustice-staging.shfpvdx8-liquidwebsites.com. You have to have personal knowledge of the case. Either you were a named defendant. Or you knew the named defendant.

The winner will receive a free year’s membership to Medical Justice. Determination will be made by XXX-YYY and announced soon after via our weekly e-blast and blog. (The usual caveat, void where prohibited by law).

May the best defendant win.

Now starring in the role of witness, the world famous actor.…

Jeff Segal, MD, JD, FACS

If you’ve ever faced a malpractice suit, you know the potential pitfalls associated with an expert witness. Juries rely on expert testimony to explain complex medical issues, elucidate the standard of care and judge whether that standard was followed. Unfortunately, instead of an impartial expert, plaintiff attorneys often employ a “hired gun” – a professional expert witness with suspect motives, willing to testify to a specific point of view.

Now, in addition to problematic experts, doctors with malpractice suits in Florida could face another questionable tactic – professional actors reading statements for witnesses who cannot attend the trial. Reuters reports on Actors at Law; a company that supplies professional actors to read statements for absentee witnesses in court. (more…)

Break Out The Champagne

Jeff Segal, MD, JD, FACS

If at first you don’t succeed, try, try again.

On July 25th, the North Carolina House of Representatives overrode the Governor’s veto of substantive tort reform. The North Carolina Senate overrode the veto last week. The bill will now become law.

This effort began decades ago and was finally realized this week. Most notable is the cap on non-economic damages. The law caps these damages at $500,000. This is considerably higher than other states that have passed reforms – such as California and Texas. But, it removes the uncertainty from what was previously the status quo – where the sky was the limit.

The bill was designed to balance the interest of injured patients with those of practicing physicians. (more…)