A potential class-action lawsuit by hundreds of women seen by a man who posed as an obstetrician-gynecologist in Cheverly may return to trial court after the U.S. Supreme Court this week declined to hear an appeal from the agency that they allege negligently certified him as a medical school graduate.
The Pennsylvania-based Educational Commission for Foreign Medical Graduates had urged the high court to deem class certification impermissible in the case.
In their failed bid for Supreme Court review, ECFMG’s attorneys said a class action cannot be brought because each woman’s claim that the agency’s alleged negligence in certifying “Dr. John Akoda” caused her particular emotional distress “predominates” the group’s common legal question of whether ECFMG breached a duty of care to them.
The women’s attorneys countered that the decision on class certification has not been made final by the trial court, so Supreme Court review would be inappropriate.
The justices denied review without comment. The case was docketed at the Supreme Court as Educational Commission for Foreign Medical Graduates v. Monique Russell et al., No. 21-948.
“The denial of certiorari (review) leaves in place a robust consensus among the circuits (adopted by the 3rd Circuit, in this case) around the ‘broad view’ of issue class certification,” the women’s lead Supreme Court attorney, Patrick A. Thronson, said in a statement Friday referring to the federal circuit courts of appeal.
“This view holds that when discrete issues, rather than whole claims, are proposed for class certification under Federal Rule of Civil Procedure 23(c)(4), the predominance requirement of Rule 23(b)(3) need only be satisfied within those issues, rather than for the claim as a whole,” added Thronson, of Janet, Janet & Suggs LLC in Baltimore. “The ‘broad view’ promotes access to justice and provides judges and litigants a valuable case management tool to resolve complex cases. In achieving this result, these courageous plaintiffs have already made a valuable contribution to our civil justice system.”
ECFMG’s lead Supreme Court attorney, William R. Peterson, did not immediately respond to a request for comment on the case. Peterson is with Morgan, Lewis & Bockius LLP in Houston.
The women’s attorneys are seeking class certification for their claim that ECFMG negligently certified that “Akoda” had graduated from a foreign medical school when in fact he had not.
That certification 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.
The threshold issue in the claim against ECFMG, which has denied the allegations of negligence, is whether it 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 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.