The fate of a potential class-action, emotional-distress lawsuit by hundreds of women seen by a man who posed as an obstetrician and gynecologist in Cheverly could rest with the U.S. Supreme Court.
Attorneys for the women are seeking class certification for their claim that a Pennsylvania-based agency negligently certified that “Dr. John Akoda” had graduated from a foreign medical school when in fact he had not.
That certification from the Educational Commission for Foreign Medical Graduates enabled Akoda – whose real name is Oluwafemi Charles Igberase – to get a job at Prince George’s Hospital Center, where he served as an OB-GYN between 2011 and his termination by the facility in 2016 upon discovery of his ruse, the women claim.
The women also sued the hospital in 2017 in Prince George’s County Circuit Court, but that claim was dismissed “without prejudice,” which enables them to refile later. The hospital – later acquired by the University of Maryland Medical System – has denied the allegations of negligence.
Counsel for the women said they are currently focused on the claim against ECFMG, which they allege negligently investigated and certified Igberase as eligible to enter a medical residency in the United States despite the Nigerian national’s use of fraudulent papers regarding his identity and physician qualifications.
The women claim ECFMG’s negligence caused them emotional distress when they later learned from a federal investigation that “Dr. Akoda” – who had touched intimate areas during examinations and in many cases delivered their babies – was not a doctor.
The investigation revealed the doctor’s true identity and that he had used stolen Social Security numbers to advance his medical career and obtain professional certifications. Igberase pleaded guilty in November 2016 to a federal charge of misusing a Social Security number to fraudulently obtain a medical license in Maryland.
He was sentenced to six months in prison and three years of supervised release, which included six months of home detention.
The Maryland State Board of Physicians revoked his medical license in July 2017.
ECFMG, which denies the allegations of negligence, is urging the Supreme Court to review and overturn a lower appellate court decision they say will improperly permit the women to pursue their negligence claim against the commission as a class rather than individually.
In papers filed with the justices last week, the women’s attorneys countered that the decision on class certification is not yet final, so Supreme Court review is not yet appropriate.
The threshold issue in the claim against ECFMG is whether the commission owes a duty of care to the patients of a doctor it certifies. If a duty is established, the next issue is whether ECFMG breached that duty.
If the duty was breached, a court then determines if the women were injured by the doctor and, if so, what their financial compensation should be.
So far in the litigation, the U.S. District Court for Eastern Pennsylvania granted class-action status for the women on whether a ECFMG owed and breached a duty of care to the women. If so, the women could then proceed individually with their claims for compensation for emotional distress, the district court held.
The 3rd U.S. Circuit Court of Appeals agreed with the proposition that the duty element could be bifurcated from the liability issues when certifying a class. However, the 3rd Circuit remanded the case to the district court to give further consideration to whether bifurcation is appropriate in this case.
At that point, ECFMG petitioned the Supreme Court for review.
The commission stated that class certification is impermissible in the case because each woman’s individual claim that ECFMG’s alleged negligence caused their particular distress “predominates” the group’s common legal question of whether the commission breached a duty of care.
To permit class-action lawsuits based on common legal questions even when factual issues such as causation and injury predominate would make class actions “theoretically permissible for any case involving a common issue, limited only by the creativity of plaintiffs’ counsel in identifying common issues or class treatment,” wrote ECFMG’s lead attorney, William R. Peterson. “Class actions are tremendously powerful procedural tools, but that power requires strict rules and vigilance against their misuse.”
The improper certification of a class would be particularly harmful to ECFMG because if a breach of duty is found “the commission may face undue pressure to settle, even if their breach did not cause plaintiffs’ harm,” added Peterson, of Morgan, Lewis & Bockius LLP in Houston.
Peterson’s concerns were shared by the U.S. Chamber of Commerce, which submitted a brief to the justices in support of ECFMG.
The chamber, which represents businesses, wrote that permitting class actions based solely on the commonality of a legal issue would have “the inevitable result (of) an increase in abusive class actions designed to impose massive settlement pressure through class certification regardless of the merits of the underlying claims.”
Attorneys for the women, in reply to ECFMG’s petition, said the remanded case is not ripe for its high court’s review and urged the justices not to “disrupt a consensus” among federal appeals courts, procedural rulemakers and scholars that class certification is permissible to resolve a common issue of law, such as the duty of care and whether it was breached.
The women’s lead attorney at the high court is Patrick A. Thronson, of Janet, Janet & Suggs LLC in Baltimore.
The justices have not stated when they will vote on ECFMG’s request for their review. The case is docketed at the Supreme Court as Educational Commission for Foreign Medical Graduates v. Monique Russell et al., No. 21-948.