Archive for the 'Court' Category

Doctor Denied Medical License Because She Doesn’t Use a Computer

Dr. Anna Konopka of New Hampshire was forced to surrender her medical license because she was unable to use a computer. The 84-year-old doctor turned over her medical license in October, but requested permission later to continue her practice. Judge John Kissinger denied her request.

Konopka built a network of loyal patients in New London, New Hampshire. Many of her patients suffer from complicated conditions, but who are tired of big hospitals and distracted doctors. She typically only charged $50 in cash.

Konopka didn’t have a computer in her office and didn’t want to use one. Instead, Konopka relies on two filing cabinets. New Hampshire medical regulators argue that Konopka’s failure to use a computer violates the state’s mandatory electronic drug monitoring program, a state program designed to combat the opioid epidemic of recent years. The state also alleges that Konopka had been leaving dosing levels to parents and failed to treat a patient with daily inhaled steroids. Konopka claims she never harmed her patient and that the boy’s mother ignored her instructions.

medical licenseKonopka has asked Judge Kissinger to reverse his ruling. Legally, there aren’t many claims that Konopka can rely on. There might be a couple of federal statutes, but neither are really an appropriate fit:

Age Discrimination

Konopka’s supporters might think this is age discrimination. Age discrimination occurs if Konopka is 84 years old and her limited understanding of technology is shared by many citizens in their eighties.

Although Konopka is an elderly woman who has limited computer skills, this alone is not evident of age discrimination. There was no mention in the complaints about Konopka’s age. Moreover, if any doctor refused or was unable to use a computer, regardless of his or her age, the state would presumably revoke their license as well. Finally, if Konopka had hired someone to handle computer use, even a relative or a friend’s child, this might be avoidable. There is nothing in these facts that indicate age was an issue.

Disability Accommodation

Medical licensing boards are bound by the Americans with Disabilities Act (ADA). If Konopka had a disability, New Hampshire would be required to accommodate the disability.

The problem would be that there isn’t a recognized disability. Disabilities must be mental or physical. Refusing to learn or being unable to use a computer is not a recognized mental or physical disability. However, even if a learning disability that prevents a person from using a computer were a recognized mental disability, there is still no explanation for why Konopka cannot find someone else to assist her.

Konopka’s Solution is in Politics, Not Law

However, the issue isn’t whether Konopka can learn the system that the state has mandated to combat opioids. Konopka herself has said: “Even if I knew how to use it, I would be unwilling. I cannot compromise the patient’s health or life for a system, I refuse to.” Many of her patients, as many as 30, have testified that Konopka spends significant time with them, as much as two hours per appointment. Konopka declines to follow the practice of using electronic records to diagnose patients because she is experienced enough to diagnose a patient just by examining and talking with them.

It seems Konopka’s problem is political rather than legal. New Hampshire recognized a drug problem in their state and took a step to stop it, by requiring all license doctors to use an electronic system to track what kinds of drugs and how much the doctors are prescribing. Dr. Konopka refused to follow the regulations and surrendered her medical license.

As long as New Hampshire has a valid reason to enact their electronic program – drug safety is a valid concern, then the regulation cannot be overturned. If Konopka and other doctors in her position disagree, they should speak with their state representatives to either find a new regulation that they agree with or to create an exception in the regulation.

Teenage Illegal Alien Right’s to an Abortion: The ACLU’s Lawsuit

A lawsuit over a 17-year-old illegal immigrant’s right to get an abortion has seen many twists and turns since it was brought by the ACLU a little over a month ago–the most recent of which happened only days ago. The girl in question, known only as Jane Doe in court documents, was caught crossing the border in September and learned shortly after while at an immigration detention center specifically for illegal alien minors that she was pregnant. She did not want to carry her pregnancy to term however, following Trump administration policies, the detention center refused. They instead took her to religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds of the fetus which they then showed to her.

All this is part of a policy implemented in March requiring approval from the U.S. Office of Refugee Resettlement before a shelter can release a non-citizen minor to get an abortion or abortion-related service. The director of this office, Scott Lloyd, has long been outspoken in his condemnation of abortion and women who get abortions. He has made public announcements, in the wake of the policy, that he would allow no abortions whatsoever for and only allow release for “pregnancy services and life-affirming options counseling.” Texas officials have made it clear that they also will allow no abortions.

Under Texas law, a minor requires either parental approval or court approval before receiving an abortion. However, even after receiving court approval to get an abortion, the shelter Jane Doe was staying at refused to take her to a clinic where she could get an abortion. After this, the ACLU brought a lawsuit on behalf of Jane Doe to secure her right to an abortion and challenge the policy itself.

This is a matter that has seen very little litigation, so there were quite a few eyes on the case ruling. Just weeks ago, the court ruled on the issue in favor of the ACLU–leading to a twist in the case before an appeal was brought. Let’s look at the lawsuit, the ruling and this most recent twist in order to understand what this case means for the rights of illegal aliens to an abortion.

The ACLU Lawsuit

As we discussed earlier this week, illegal aliens have quite a few constitutional rights including 1st, 4th, 5th, and Equal Protection Act protections. This, along with the obligations of the government to take care of unaccompanied minor illegal aliens–an obligation which the government has recently been found in breach of–formed the cornerstone of the ACLU’s case.

The ACLU argued that the policy violated First and Fifth amendment rights by forcing these minors to receive approval before gaining access to an abortion–something far beyond the usual constitutional protections granted to citizens under the law. This is especially true because the policy provides no explicit exceptions, even for victims of rape. They argued that this, along with forcing minors to attend religious counseling discouraging abortions and requiring them to get approval from either parents or a sponsor before getting an abortion, violated the Fifth Amendment right to privacy. They argued they violated the First Amendment by compelling unaccompanied immigrant minors to discuss their decisions to have abortions. The lawsuit also alleged that requiring religious counseling violated the Establishment Clause of the First Amendment.

ACLUThe Flores agreement  is a government agreement which requires the government to provide care for unaccompanied illegal alien minors up to a certain minimum standard. This includes a requirement to provide medical care, specifically including family planning services and emergency health care services. The lawsuit argued that the government policy did not live up to these obligations.

The District Court’s Ruling

The federal district court sided with the ACLU, signing an order allowing Jane Doe to receive an abortion. The judge in the case called both the shelter’s actions and the policy itself “shocking” and “unconstitutional.”

To make the ruling simple, the decision essentially came down to the court stating that it is well established as unconstitutional to outright deny access to abortion–whether it is applied to a citizen or an illegal alien. By following the state rules of Texas when it comes to receiving an abortion, Jane Doe had the equal protection of the law and was constitutionally allowed to receive an abortion.

The order required the shelter to “promptly and without delay” transport Jane Doe to the nearest abortion clinic and allow her to obtain an abortion.  It is important to note however that the order does not yet extend to challenging the policy.

The Case Takes a Twist

The government refused to comply with the court’s order, and appealed the case. However, the appeals court supported the lower court ruling–although they delayed the abortion slightly to seek a sponsor for Jane Doe. This delay was potentially a serious issue for Jane Doe. Texas law does not allow nearly any abortions after 20 weeks of pregnancy, at 15.5 weeks Jane Doe was nearing the point where the case would become moot.

Even after this, the government made it clear that they would take the case all the way to the Supreme Court. They argued that there is no established constitutional right to an abortion while in federal custody. They also interpreted the rules of the Flores agreement to require the care of all minors in their custody–including unborn fetus’ such as Jane Doe’s. This is an interpretation supported by no case law. In fact, the rulings on the status of a fetus two months into a pregnancy tend to go the other way.

However, here came the twist. Before the government made any further filing to seek a stay on the court’s order requiring them to allow an abortion, the ACLU moved up Jane Doe’s clinic appointment, changed it from a counseling appointment to an actual abortion, and Jane Doe got the abortion she wanted.

As mentioned above, Texas law does not allow nearly any abortions after 20 weeks of pregnancy, so the clock was ticking for Jane Doe. However, the government has taken affront to the ACLU’s actions. While the ACLU argues they were under no obligation to wait for the government to decide to act while Jane Doe ran out of time, the government has sought sanctions against the ACLU lawyers and argue that the lower court ruling should be vacated due to their actions.

The Case Moving Forward

Jane Doe got her abortion. In a statement afterword she said that nobody should be shamed for making the right decision for themselves. However, the case is not over. There has been no movement on the government’s requests as of now. What’s more, and most importantly, the central question of the case has not been thoroughly addressed.

These ruling imply that, at minimum, non-citizens have a right to the same protections of state abortion laws the same as citizens would have. However, the exact outlines of these rights have not been fully explored–the rulings in this case are rather brief. The ACLU will continue its battle against the policy of the Trump administration regarding illegal alien abortions. It seems quite likely that the question will eventually reach the Supreme Court as many are discussing the case as the largest abortion case since Trump took office. Jane Doe is also not the only plaintiff in the ACLU’s case, it was brought on behalf of all similarly situated people. This is not the last we will hear of this case or this issue. As of now, the trends say that non-citizens have the same rights to an abortion as anybody else.

Did Attorney General Jeff Sessions Lie to Congress?

With Special Counsel Robert Mueller’s first indictments, new questions have arisen regarding Attorney General Jeff Sessions’ testimony regarding Russia and the Trump campaign. During Sessions’ Judiciary Committee confirmation hearing on January 10, Senator Al Franken asked him what Sessions would do “if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”

Franken was referring to a news report alleging that Russia had compromising material on Trump and Trump surrogates were in contact with the Russian government. Sessions replied that he was “not aware of any of those activities” and said “I have been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians, and I’m unable to comment on it.” Sessions followed up in January 17 letter to Senator Patrick Leahy that he, Sessions, had not been “in contact with anyone connected to any part of the Russian government about the 2016 election.

SessionsWhat Made the Attorney General’s Office Change Their Mind?

After news about Papadopoulos’s guilty plea emerged, the Attorney General’s office changed it’s tune: “As far as Sessions seemed to be concerned, when he shut down this idea of Papadopoulos engaging with Russia, that was the end of it and he moved the meeting along to other issues.” Instead of being “unaware of any of those activities,” as Sessions had testified under oath in January, the Attorney General thought “It was a bad idea and the Senator didn’t want people to speak about it again.”

Even if we give Sessions the benefit of the doubt that he did everything to discourage meetings with the Kremlin, he should have made these revelations to Congress in January. Instead, Sessions waited until after news of Papadopoulos’s guilty plea to disclose what he has now apparently remembered. These revelations should have been made earlier, especially because Session’s supervisor has been screaming “FAKE NEWS!” whenever a journalist mentioned secret meetings between the Trump campaign and Russia.

What’s truly disturbing is that this is not a single incident. This administration has a history and pattern of making absurd claims which are either easily debunked or which are debunked by later evidence.

But Did He Do it Knowingly and Willfully?

Perjury is the intention act of knowingly or willfully making a false statement while under oath, either verbally or by writing. Statements which are merely false do not constitute perjury. The defendant must know that the statement was false, but made it anyway.

The issue is whether Sessions knew he was making false statement when he said he was “not aware of any activities” between the Trump campaign and Russia, when in fact he was at the meeting when Papadopoulos claimed he could set up connections between Russia and Trump himself. There are two questions that need to be answered before we can determine whether Sessions has committed perjury:

  1. Did Sessions believe Papadopoulos was speaking as a representative of the Kremlin?
  2. When Sessions said he was not “not aware of any activities,” did he know that “aware” also included “to discourage?”

If the answer to both questions is yes, then Sessions would be guilty of perjury. If Sessions believed that Papadopoulos represented Russia, then there was a connection between the Trump campaign and Russia right in front of him. If Sessions also knew that discouraging activity between the two was part of the question asked, then Sessions would have committed perjury. If the question had been “Did you encourage activities between the campaign and Russia,” Sessions would not have been stating a falsehood under oath. However, the question is merely about whether the meeting took place, not Session’s reaction to that meeting. If Sessions understood what the question was about, then he would have committed perjury.

Obviously, if Sessions lied under oath, he should at least meet the same punishment as President Clinton: disbarment, if not impeachment. Unlike the President though, Sessions would have to resign from his position anyway because the Attorney General must be an attorney.

Holding Equifax Accountable: Lawsuits and Actions Against Equifax

The Equifax breach has, rightly so, been a heat magnet for the credit reporting giant in the media. It’s also been a lawsuit magnet as the company has faced a tremendous number of suits against it in the last several weeks.

A few days ago, we discussed the common causes of action that may be available to you for holding Equifax legally accountable if you’ve been affected by the recent hacks stealing a tremendous amount of private consumer information–everything from social security numbers to credit card numbers and more. It would hardly be surprising if you can count yourself among this unfortunate number as the hack impacted nearly half the population of the United States.

With this many affected, it’s no surprise that there have been a veritable landslide of lawsuits and actions brought against Equifax recently. From class actions to more specific cases to government action against the credit behemoth–let’s look at the many ways people are trying to hold Equifax accountable for this breach.

equifaxWhat is a Class Action Lawsuit?

Class action lawsuits are common when many would-be plaintiffs have damages which are individually too small to justify the costs of a lawsuit. They are not always easy to bring, having several requirements such as similarly situated plaintiffs before they can be approved. However, with half the nation affected by Equifax’s breach there are a heck of a lot of people with smaller claims. This has led to over 50 different class action lawsuits being leveled against Equifax, some of these lawsuits seek as much as $70B.

These lawsuits primarily deal with the two causes of action we discussed earlier this week–Federal Credit Reporting Act (FCRA) violations and negligence. This is because these can take the individually small claims–especially when it comes to FCRA violations–and combine to make a lawsuit that can support its costs.

However, not all of these class actions deal with FCRA and negligence issues. For instance, one of the lawsuits seeking to be certified as a class action is made up entirely of banks and financial institutions. The lawsuit argues that the breach is forcing these banks to pay for canceling and reissuing credit cards and costing them profits as customers are prevented from or become wary of using credit cards after Equifax’s breach.

What about Private Lawsuits Against Equifax?

Lawsuits brought against Equifax by individuals have covered even more types of legal claims than their class action counterparts.

A lawsuit out of San Jose has targeted Equifax’s offer of a year of free credit monitoring, arguing that the move is designed to transition into paid services. Another lawsuit out of Atlanta is accusing Equifax of securities fraud for knowingly misleading shareholders as to their ability to protect the privacy of consumer data.

Carson Block–best known for alleging fraudulent activity on the part of companies then profiting off short-selling that company as their stock collapses–was himself a victim of the Equifax breach. With his data and social security number stolen, he has sued for $500,000 over negligence and the “stress, nuisance, and annoyance” of dealing with his lost data.

Private persons are not alone in their actions against Equifax. Lawsuits have been brought over the breach by the city of San Francisco and the State of Massachusetts.  These lawsuits seek millions of dollars in civil penalties and restitution for consumers out of the city and state.

The FTC, SEC, and More Taking Official Action

While Massachusetts and San Francisco are bringing lawsuits against Equifax, the Federal Trade Commission (FTC), the Securities and Exchange Commission, the FBI, Congress, the Consumer Federal Protection Bureau, and the Attorney Generals for over 40 states have begun investigations into Equifax and the Equifax breach.

Obviously, each of these investigations will take their own path and most are remaining tight lipped about the actual investigations. For instance, the FTC mentioned that–while it usually does not comment on ongoing investigations whatsoever–it would confirm the existence of an investigation considering the sheer number of people in the U.S. that were impacted by the breach. The FTC investigation will be focusing on Equifax’s security measures and their handling of customer service once the breach was announced.

How Will This Resolve?

With so many lawsuits with so many different fact patterns, it’s obviously extremely hard to predict results. However, at least for class action lawsuits on this sort of issue, there is an unfortunate trend of settling for extremely small individual payouts for members of a class action lawsuit–often settling for free credit monitoring services and nothing more.

Some have predicted that this case will be a bit different. Judges have become more hesitant to sign off on settlements that only provide free credit monitoring–especially since there is a trend for the free credit monitoring provided to transition into proposals for paid services. What’s more, as mentioned in the article earlier this week there has been a move towards courts recognizing a breach itself as a recognizable harm as opposed to requiring that breach to result in actual financial damages. This opens the doors to a sea of new potential plaintiffs.

This is all true, however, we will likely be waiting at least a few years before we see any actual resolution on these cases–especially the class actions. These class action cases need to go through a lot of initial steps which will substantially slow the process. What’s more, given the sheer number of people effected, it will take a truly monumental payout for individual members of a class action to see a substantial recovery. With half the U.S. affected, if Equifax settled for $5B the average harmed consumer could expect to see around $35 if everybody took their share.

Regardless of the end results, it is crucial that we hold companies such as Equifax–companies who hold information capable of ruining somebody financially–accountable for their data security. This can be done by lawsuits targeting their pocket book. However, it needs to also be done at a regulatory level in Congress. Congress actions just days ago, shooting down laws making it harder for companies to insulate against class action lawsuits, have not fit this bill. For now, we can only hope more regulations will be put forward and this time Congress will be more receptive.

Big Pharma Penalized, U.S. District Courts Rules in Favor of Maryland’s Price-Gouging Law

Pharmaceuticals have not been enjoying the greatest couple years when it comes to the court of public opinion. From Martin Shkreli’s infamous price jacking to recent price fixing convictions against Heritage Pharamaceuticals CEO Jeffrey Glazer, the hits have kept on coming as pharmaceutical scandals come out of the woodwork. Now, pharmaceutical companies have taken a hit in District Court as a judge has handed the first round victory to an anti-price gouging law out of Maryland targeting generic pharmaceuticals.

Despite the many instances of abuses on the part of pharmaceutical companies in the last few years, Congress has been slow to take any meaningful action on the issue. This has left the states to take action on their own and Maryland’s law–taking effect on October 1st just a few weeks back–is the first successful law of its kind.  However, pharmaceutical interests were very keen to see that was not the case. After the law was passed back in May, the Association for Accessible Medicines (AAM)–a group of generic pharmaceutical companies–quickly challenged the law as unconstitutional and sought a preliminary injunction to prevent the law from taking effect while their lawsuit was ongoing.

While the recent district court ruling shot down the potential of an injunction, the lawsuit is still far from over. Let’s take a look at the details of the statute out of Maryland, the AAM’s challenges to the law, the ruling of the court, and the trends of similar laws across the country.

big pharmaUnderstanding the Maryland’s Statute

The price gouging law, passed with a substantial bipartisan majority, is focused exclusively on off-patent and generic medications. It does not apply whatsoever to name brand drugs under patent protection.

It’s primary provision allows for Maryland to look into claims of unconscionable increases in the prices of generic medication. Where such an increase is found by the attorney general of Maryland, a fine of up to $10,000 can be levied against the manufacturer or distributor for each violation. The attorney general can also require companies to return money to consumers lost as a result of price gouging, order a stop to price gouging activities, an require a drug manufacturer to make a drug available to Medicaid participants at the pre-gouging price for up to a year.

In pursuing these investigations, the law allows the attorney general to require the accused company to produce records and justify their price changes. An opportunity to explain their increases is generally required under the law before levying fines. The information given in these explanations is held confidential by the attorney general where necessary.

The exact amount or percentage increase that would constitute “unconscionable” is not precisely defined in the law. However, “unconscionable” is far from a new legal concept and is often brought  up in the context of contract law as a situation where terms are so egregiously unjust in the favor of a party with greater bargaining power that a reasonable person would never agree to them. For example, where a life saving medicine is made incredibly expensive-beyond all market forces-but a purchaser has an option of either paying that price or suffering extreme consequences. This ambiguity when it came to the term unconscionable was central to AAM’s challenge to the law.

What are the AAM’s Arguments for Unconstitutionality?

AAM, as generic drug manufacturers, obviously didn’t care much for the law. Their challenges, however, were not frivolous attempts to slow down its progress. They made two primary arguments. First, the law overreached Maryland’s bounds by effecting potential pricing in states beyond just Maryland. Second, that the law itself was unconstitutionally vague.

The first argument hinged on a fairly uncommon argument in this day and age-the dormant commerce clause. The commerce clause is the power of the federal government to regulate commerce involving multiple states. However, in its current interpretation, the dormant commerce clause is a product of this power which prevents states from passing legislation which favors one state over the other. The dormant commerce clause also requires a balancing test where a law places a burden on commerce between states. However, it is exceedingly rare to see a law struck down on this basis in recent history. What’s more, merely burdening interstate commerce faces a much less rigorous test for constitutionality than favoring one state over another in a law.

The second argument, that the law was void for vagueness, pointed at the lack of concrete definition to the term “unconscionable” and said that the law was unconstitutional because manufacturers couldn’t know when they were violating it. In general, a law is unconstitutional were it doesn’t give the public notice of when they are violating it, impinging on their constitutional due process rights.

What was the District Court Ruling?

In deciding on the case, the District Court did several things which amount to handing a rousing victory to Maryland. First, it denied all injunctions and allowed the law to go forward as planned. Preliminary injunctions require, among other things, a showing that the plaintiff is particularly likely to succeed. The court just didn’t think that likelihood was here for AAM.

Second, the court outright dismissed AAM’s claims regarding the dormant commerce clause. They ruled that the law applies neutrally to all interstate commerce and thus the argument held no weight.

However, it wasn’t a clean sweep for Maryland here. The court didn’t rule in favor of AAM’s vagueness argument, but they did allow litigation on the issue to go forward. The judge felt the arguments were reasonable enough to bear fully exploring. Even then, the judge went out of his way in his ruling to note he didn’t think the arguments were necessarily winning ones.

This case is far from over. Even with the vagueness argument making its way through the ruling, AAM have already made it clear that they look to appeal and believe their case will succeed in the higher courts. For now though, it’s a victory for Maryland and the price gouging law will continue as planned.

Good News: Maryland’s Law is a Growing Trend

Maryland’s price gouging law may be the first to be passed, but it looks to be part of a concerted effort by the states to address this issue where the federal government has not. 36 states have introduced, if not passed, nearly 200 bills related to pharmaceutical pricing in the last year. Nevada passed a law in June, a month after Maryland, which requires drug manufacturers to release price and profits on insulin every year. Ohio has an upcoming vote on a law which would make it illegal for the state and its agents to buy drugs at a higher price than the U.S. Department of Veteran Affairs.

At least for Maryland’s law, AAM and a few others have criticized it for targeting generic drugs. They say that generic drugs are driving down medical costs and going them doesn’t make sense. However, this argument is a bit tone deaf in the of the off-patent Daraprim being the very drug at the center of Martin Shkreli’s infamous price hikes.

Regardless of how you feel about Maryland’s law, there’s little question that price gouging on necessary medications is an issue to be addressed. Living with an illness such as diabetes in difficult enough without wondering whether your insulin may suddenly skyrocket in price. For now, Maryland has won this round. However, this is a trend to keep an eye on–both out of the states and the federal government.