Doctor's PI Program

#76

 From the Desk of:

 Mark Studin DC, FASBE (C), DAAPM, DAAMLP

 

“Anatomy of a Lawsuit”

My 5 Year Ongoing Battle Against a Predator Employee Through the Court System

  

A few years ago I concluded a 2-day trial, after 12 solid days of 20-hour per day preparation. This took place after 4 years of trials, preparation, more preparation and large legal fees, for doing nothing wrong. Over the next several paragraphs I will be sharing with you some of my frustrations, experiences and the information I learned so that you will not have to walk in my footsteps. The ruling was in our favor... BUT... 

 

In 2004, I was working in a multi-discipline office and employed a treating chiropractor who was average, not inspired nor pro-active at any level. However, she was with me for 4 years and good enough that I chose to keep her as long as my influence was felt. In late 2003, she became pregnant and didn’t tell me. I found out 2 months later from another staff member who told me confidentially and it turned our office upside down, as I had to re-arrange my responsibilities and that of others to accommodate her. I had to handle x-ray duties for a period of time, hire part-time chiropractors to cover hours she couldn’t keep up with, and I also had to pitch in to help her adjust the bigger patients. Remember, I have 2 compression fractures at T-11 and T-12, so this was no small feat for me, but I did it as needed under duress, as I couldn’t afford another chiropractor at the same time in the clinic. We also had a very difficult financial year in the clinic, as there were sweeping changes with regards to reimbursement issues and insurance companies in New York in 2003 and 2004, and we were in the midst of figuring them out.

 

During her pregnancy, this doctor lied about having performed NY State mandated quality assurance testing for x-rays. She didn’t re-evaluate most of the patients and lied to me about that. Many of the patients didn’t get required x-rays and many others were simply allowed to leave without ever getting adjusted. I didn’t find all of that out until after she was gone, as the other staff members didn’t want to “rat her out” while she was there. In addition, she was not pleasant to be around a good amount of the time, as reported by patients and other staff. In retrospect, I should have dug deeper into the statistics, but I had 3 full-time jobs in that office and believed everything this “trusted employee” told me. I took my eyes off the most important part of the practice, caring for those already under care. That was my biggest mistake and one I will never repeat.

 

This doctor worked through her entire pregnancy. Her benefits were maintained during her maternity leave and the day she was to return, we fired her, as the covering doctor’s statistics showed a 35% increase in patient volume during a similar time period. In addition, he did all of his work with a smile and everyone was very happy.

 

What happened with the fired doctor? She worked on a very part-time basis with other doctors and then went to work with her husband, also a DC, in his clinic. Soon thereafter, they closed shop and filed bankruptcy.

 

Sometime in 2006, she filed a discrimination lawsuit against me, the clinic and our medical director. She claimed we discriminated against her and had fired her due to her pregnancy. She alleged that I “sexually harassed” her. The claim was for an open-ended amount of money (meaning there was no limit to what she could recover depending upon the validation of the allegations in trial) and her lawyer named us personally, as well as corporately.

 

After reading the 60+ page complaint against us that was filed with the courts and made us sound as if we were the worst people that ever existed on the planet, I hired a lawyer because I stupidly did not have insurance for this type of issue. As a side note, that insurance costs about $1200 and I STRONGLY recommend that everyone secures it. The lawyer we retained is one of the best in the area and charges $450 per hour. OUCH!!!

 

After spending hours with the lawyer detailing all of the issues, he gave me a list of documents that I needed to prepare. We were to attend a hearing with a court officer that would listen to all parties, look at documentation and make a recommendation to the courts to see if a formal trial was warranted. Later in this document I will explain all of the charges in detail and what was needed to overcome the issues.

 

At that first hearing, I attended with 6 witnesses from the office, all of whom shared their stories of how each and every complaint of hers was false. The doctor never attended, but instead made her appearance through a telephone call, as is her right, because she did not want to face us. The initial ruling came 1 year later stating that, in fact, there was no sexual harassment and we did not discriminate. However, there was enough doubt on certain issues to move forward with a full trial. I was perplexed, angry and frustrated. My lawyer went on to explain that the test of the courts is not about anything other than dire economic factors in absence of concrete proof of reason for “cause” to fire her, and since there wasn’t any, there was enough doubt to hear the case.

 

This meant that because I didn’t “write her up” for violating office policy or poor performance and have her sign off on it, there was no concrete proof. My second mistake was that I didn’t have the heart to write up misconduct issues on a woman that was 5-6-7-8-9 months pregnant and have her sign it. I thought at the time it would make me head of the “asshole list.” You know the adage, “No good deed goes unpunished?” I lived it. Therefore…we needed to prepare for the trial that was to take place in 6 months.

 

During that time, as many of you know, my wife was diagnosed with cancer and needed surgery. This occurred suddenly and her surgery date was to be on the same day as the trial. Despite the dire health issues (which have since been resolved, thankfully), my wife was the bookkeeper in the office and needed to testify. We petitioned the courts to postpone the trial, as it was to take place within one week’s time from her scheduled surgery. The State of New York refused to grant a postponement, as they accept no reasons for a postponement. My lawyer, everyone we spoke to, and I couldn’t believe that with written proof of my wife’s diagnosis and scheduled surgery, they would not postpone.

 

The trial took place and my lawyer instructed us to post no defense and let the other doctor say whatever she chose to say. He felt that we could get another trial based on the circumstances of this disgusting policy. We also knew that if the higher courts knew what was going on, many people would be fired or publicly denounced and we felt comfortable about the decision. At the time, I really didn’t care about focusing on an extortionist in light of real issues. The trial occurred with the doctor being the only person to testify and once again, she didn’t show up. She did it via telephone, as the courts allow in discrimination cases.

 

We waited another year for the ruling and in 2008, the ruling was that she was entitled to a small amount of money to cover severance pay, as we only gave her 2 weeks. It was felt that another few weeks should have been given. This was a resounding victory for us and we happily went to write the check and put an end to this nonsense. However, her lawyer refused to accept the money. In conversation with my lawyer, her lawyer expressed that such a small amount of money didn’t leave her, the lawyer, anything and she needed to justify the hours put into the case. It seemed that she wholeheartedly believed the allegations rendered by her client and took the case on contingency. The lawyer works in a firm and her boss was not happy with the outcome. Therefore, they appealed the decision based on the fact that they never got the chance to question us and her lawyer needed to make more money. The courts, now in an embarrassing position, readily agreed to the appeal and scheduled another trial for November, 2009. This was 5 years after this employee had been fired.

 

Each time we had had another hearing, the case moved up in the courts and the requirements increased. For this hearing, we needed every employee document, every financial document, and every documented conversation. I had to go to the storage facility and spend days digging up everything and resurrecting 2003 and 2004 in order to show the financial trends of the practice that had now been closed for over 4 years. We had to find staff members that had not been employed with us for almost 5 years and subpoena them to testify. I had to spend significant time with each former staff member refreshing their memory and showing them documents and papers that I had to find for them to testify about.  I had to work with the lawyer for a solid month to prepare for a full trial. During the 10 days prior to the trial, our lawyer worked with 2 other lawyers in his firm from 8 AM until 9 PM preparing for the trial. (Do the math for the fees being charged.) In addition, I had sold the practice, records and computer system to another facility 4 years prior and they did not maintain our computer system, so I was unable to recover any data from our old system. In short, it was very expensive, very time consuming, and for 2-3 solid weeks, I had to live in 2003-2004 and put aside any current business and activities while preparing for trial.

 

What we had to show was the dire financial climate of the practice at the time she was fired and although I knew that should have been easy, it was a major effort that involved getting my accountant and my wife, the bookkeeper, to testify. I also had to resurrect every bank statement and every banking reconciliation report to prove the checkbook was accurate. I also had to show that I hadn't discriminated against this doctor. She claimed that I started tracking her utilization statistics a few days after she confessed that she was pregnant and that was the basis of the discrimination. What she failed to tell her lawyer and the courts was that due to financial difficulties at the time, back in 2003, we instituted 39 different tracking statistics for every service and every provider in the office at the same time. That came out in the trial and took 3 witnesses and 6 hours of testimony in order to be established. We effectively took the discrimination off the table, as there wasn’t any. There was just a lazy doctor who didn’t want to be accountable for her work. I then basically had to convince the courts that  I wasn’t a “sleazy scumbag” who was sexually harassing my employee. That allegation stung the most.

 

What I explained to the courts in the trial was that I had employed 3 previous doctors who were pregnant while being employed. In each circumstance, all 3 shared with me that during their pregnancies, performing an anteriority and a side posture adjustment caused their breasts and abdomen to become sore. I shared this with the doctor when she told me that she was pregnant and told her that if she needed any help in adjusting, to let me know, and I would do the adjustment for her in spite of having 2 compression fractures and being uncomfortable myself. This is what she used as the basis of how I sexually harassed her because as her lawyer was cross examining me, I used the word “breast.” I had to show the courts how an anteriority and side posture adjustment is performed and the stress it puts on the adjustor. I believe the courts are very confident that this does not qualify as harassment at any level, as they had ruled in 2 prior trials/hearings.

 

By the end of the trial, the only thing left for the other doctor’s lawyer to argue was that we should have given her more notice. My lawyer explained that in a perfect world, we should have let her come back to work for a few weeks and then followed protocol by writing her up for misconduct, having her sign off on it and subsequently firing her. However, we did clearly show that the replacement doctor rendered significantly more revenue to the practice in a financially difficult time, meeting the standard of the law. If we only lived in a perfect world!

 

In addition, the doctor, when hired, signed our written office policy. It is that office policy, in the opinion of my lawyer, that will be the deciding factor in prevailing. The policy says that for maternity leave (paraphrased), “If your position is still available, we will place you in that position. However, if it is not, we will make every attempt to place you as we can.”

 

The covering doctor also saw his own patients and paid rent to the facility. As a result, he worked only part-time, he made less money and he had no vacation, malpractice or health insurance benefits, as the other doctor had. In short, the position the doctor had before going on maternity leave no longer existed and we proceeded according to the language of the office policy that she signed.

 

As a side note, there is a reason I have been telling you for years to have a written office policy. It is so you are protected. Have every employee sign it. If you don’t have one, get one ASAP. We offer one in the "Forms & Templates" section of the Web site.

 

P.S. WE won... but... It cost me over $50,000 in legal defense, months of wasted time and many sleepless nights. What I learned is that there are very specific rules in labor relationships and if you follow those rules, no matter how difficult, at the end of the day, you can bullet proof yourself.