When you go to a new doctor, you're usually asked to fill out a form explaining your medical history.
Is it discriminatory? One local lawyer seems to think so, and he and his clients are taking their case to federal court.
THE LAWSUITS
Both Andrea Murphy and Doctor Stuart Shipe consider themselves healers. So when they each were slapped with a federal lawsuit earlier this year, they were surprised to be accused of causing harm.
"I'm just angry that somebody would do something like this. it's ridiculous," says Murphy.
"I was blindsided. I felt like I was ambushed a little bit," says Doctor Shipe.
Andrea Murphy is the owner of Acupuncture and Herbs in Stuart, where she works as an acupuncturist as well.
Doctor Stuart Shipe works at and owns Traditional Chinese Healing in Stuart.
Both are being sued for Americans with Disabilities Act (ADA) discrimination. Both are being sued by the same lawyer from West Palm Beach, Andrew Strecker, on behalf of the same man. The lawsuit centers around health forms that include questions about a patient's HIV status, among many other conditions. Contact 5 chose not to name the plaintiff because of the nature of the case, but the lawsuits are public record.
In the lawsuits, Strecker says the "mandatory paperwork" restricted his client from using the services, because he was questioned "as to his HIV status prior to his visits."
Andrea Murphy and Stuart Shipe say the questions aren't mandatory.
"I’ve never seen this individual, he’s never been in my office. I have no knowledge about him and I had no knowledge he was even HIV. Never turned in any claim forms and we don’t require individuals to do that before our consultation," says Shipe. "So how does an attorney or a plaintiff dictate what a physician can or can’t ask on an intake form to try to help an individual?"
Both Murphy and Shipe say the man called and canceled the appointments himself.
"If it was illegal, it wouldn't be on the paperwork at all," says Murphy. "If I don't have all this information, then how am I supposed to give anyone the best possible treatment that I can give them?"
Strecker has filed four other almost identical lawsuits, on behalf of two different people, against several acupuncturists and chiropractors in the area. "To me, it's extortion. Loud and clear," says Shipe.
Neither Strecker nor his client would agree to an interview with Contact 5, but the attorney wrote in an email that his client " ... has a federally protected right to use public accommodations without having to unnecessarily disclose his HIV status ...." He added: "A person’s HIV status is the most private piece of medical information that anyone can have. Since HIV is incurable, once a person’s HIV status is released it cannot be undone."
In a federal complaint, Strecker says "a review of approximately 100 public accommodations that provide similar services [to Acupuncture and Herbs] found that slightly under 50% of these providers inquire as to HIV status of their customers on their intake questionnaires." In an email to Contact 5, Strecker says: "the law specifically states that it is a violation "to inquire unnecessarily whether an individual has HIV disease."
Is this discrimination under the law?
Contact 5 had Gary Isaacs, an attorney not involved in the cases, read the lawsuits.
"My educated guess would be, a plaintiff would be hard pressed to convince a judge this was an ADA violation," says Isaacs. "I believe his argument is that not all, let’s take chiropractors, not all chiropractors have that question on their forms and therefore everyone doesn’t do it, must not be necessary. I think it’s a tough sell in a courtroom to a judge, to a jury. It just seems to be common sense that a physician is going to ask somebody about their healthcare."
"I think the point he is making, is especially with HIV status, and the stigma that comes with it, one would be hesitant to fill out the paperwork," Isaacs went on to say. "In this case, nothing stops the disabled individual or counsel from sending a letter, sending an email, making a phone call, nothing in the law that stops that except nobody gets paid that way. "
"It's wrong. The law is not what they say the law is," says Gene Zweben who represents both Andrea Martin and Doctor Stuart Shipe.
Zweben has been on both sides of ADA lawsuits. "Now if I were ever to be approached by somebody filing under the ADA, I would require my client to allow me to give notice prior to filing suit," said Zweban.
Zweben says that's because many ADA lawsuits have become about lawyer fees. In the lawsuits filed against Murphy and Shipe, they are asked to stop inquiring about HIV status and pay for attorney fees and costs.
"They know it's going to cost money for my client to defend this and because of that, she may want to settle," says Zweben. "It is quite significant what they are asking for. Several thousand dollars for filing a lawsuit."
In Stuart's case, Strecker didn't file paperwork in time, so the case was dismissed without prejudice, meaning Strecker could re-file.
In late October, a judge granted Andrea Murphy's motion to dismiss for failure to state a claim. Murphy has been fighting the lawsuit since March. She says she's spent a lot of time, a lot of effort and a lot of money. "It’s very emotional. You know, you’re trying to do the best possible thing you can do for someone and they turn around and they make up lies," says Murphy.
FLORIDA BAR: "We're looking into it."
Contact 5 has learned that since we began asking questions, three of the people who Strecker filed lawsuits against filed complaints with the Florida Bar about the attorney.
The Florida Bar said it is "looking into a complaint about an alleged unethical money scheme."