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rsa.esq
rsa.esq, Lawyer
Category: Legal
Satisfied Customers: 4
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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Can I sue a medical school for wrongful dismissal? I failed

Customer Question

Can I sue a medical school for wrongful dismissal? I failed one class, due to a medical reason (panic attacks during one portion of the course), which I am currently being treated for. This treatment takes about 8-9 weeks so if given the opportunity to take the class again, the condition will have been taken care of and I am confident that I will pass it.

The only reason I am even entertaining this idea is due to a few different reasons

1) I know of other students in the exact same situation as myself, who were allowed back. The sanction imposed on me was not consistent in keeping with the gravity of the offense based on previous School procedures in policies. (Discrimination?)

2) The school was negligent when I failed the course, as it never offered the remediation that the student handbook indicates that I should have been offered.

3) I had an overall passing GPA, and did extremely well (90+) in my other courses.

Assuming that I have grounds for a lawsuit, what type of Lawyer would I seek, and how would I go about seeking one? Moreover, is a University considered government or a business?

I truly appreciate any assistance at all with this matter of concern. Thank you!
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If you were dismissed based on a disability that permanently impairs a major life function, such as your panic attacks, then it would be discriminatory for them to dismiss you from the school instead of offer you some reasonable accommodation under the Americans with Disabilities Act. Thus, yes you could sue them for discrimination under the ADA and you would look for a education law attorney or even many employment law attorneys are familiar enough with ADA discrimination cases to pursue this type of case. You can find a local attorney at the same sites used by other attorneys, http://www.martindale.com or http://www.lexmundi.com or http://www.hg.org



I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

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Expert:  replied 1 year ago.
Hi, my name is XXXXX XXXXX I hope I can help!

First, if you think a lawsuit is your only avenue of redress, seek legal counsel who either has experience with ADA discrimination suits, or one who is willing to devote the time necessary to become competent. Your state and local bar associations can help you find a lawyer.

That said, if the most important thing is being reinstated and finishing your medical education, I suggest investigating school administrative processes for reconsideration or formal appeal. If so, and you present your case, that would probably present the fastest and least expensive resolution. If in fact your dismissal was treated differently and was a more extreme penalty than meted out to other students similarly situated, pointing that out to the school should go a long way to convincing the school administration to reconsider their decision and to treat you the same as it treated others similarly situated.

If the school has a formal appeals process, you should pursue it. You would still benefit from counsel helping you draft your appeal arguments even at this stage, and it should be less expensive than if counsel has to prepare a full case for civil trial. If the administrative appeal fails, much of the trial preparation work will have already been completed and paid for.

As to the material elements of such a case, it would help to know what class was failed and the reasons stated for the academic dismissal, and whether they are directly related to your disability. Also the circumstances of other students similarly situated who were not dealt with as severely.

Courts generally defer to institutions of higher learning when it comes to matters of academic policy and decisions executing that policy and determining the academic suitability of students. And within the Americans with Disabilities Act, institutions may discriminate under certain circumstances, such as:

1. where the disabled student poses a direct threat to the health and safety of others.

2. Also, federal courts have traditionally granted some measure of deference to academic institutions with respect to determining student qualifications to meet program requirements, and whether requested accommodations are reasonable.

In a medical school setting, academic policies may discriminate where the disability poses a danger to the health and safe of others. With respect to determining academic suitability, and institution may discriminate where the student's disability is one that prevents the completion of course work --- for example, a totally paralyzed student who cannot perform the clinical rounds (bloods draws, etc.) required by all students to complete the learning program.

However, if the disability merely requires reasonable accommodation, then upon the student's request, such accommodations should be made, and if they are not, then the school may be liable.

It is important to note that those with disabilities need to request accommodations.

Reasonable accommodation is determined case by case, balancing several factors, including costs to the institution, the relative necessity to the student, overall feasibility and practicality, among others.

Given the limited details of your circumstances, I hope this helped. Consulting with a qualified lawyer in more detail will give you a better idea of your alternatives. Thanks & Best Wishes!
rsa.esq, Lawyer
Category: Legal
Satisfied Customers: 4
Experience: Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
rsa.esq and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you dearly for that extensive and very helpful response Scott. I will respond to each of your inquireies about my case later today with follow-up questions.


 


Please note that I am planning on giving you an 'excellent service rating after your response to my follow-up. The reason I haven't done so already is because I want to make sure that all the pending questions that I have are clarified first without me having to pay another $36 for a new question. Thanks again and hope you have a wonderful day, man.

Customer: replied 1 year ago.

Hi, my name is XXXXX XXXXX I hope I can help!

First, if you think a lawsuit is your only avenue of redress, seek legal counsel who either has experience with ADA discrimination suits, or one who is willing to devote the time necessary to become competent. Your state and local bar associations can help you find a lawyer.


 


I am actually in the state of Maryland and the school is in Pennsylvania. Would I need to look for lawyers in the state of Pennsylvania or could I look for one in my state (Maryland)?

That said, if the most important thing is being reinstated and finishing your medical education, I suggest investigating school administrative processes for reconsideration or formal appeal. If so, and you present your case, that would probably present the fastest and least expensive resolution. If in fact your dismissal was treated differently and was a more extreme penalty than meted out to other students similarly situated, pointing that out to the school should go a long way to convincing the school administration to reconsider their decision and to treat you the same as it treated others similarly situated. If the school has a formal appeals process, you should pursue it. You would still benefit from counsel helping you draft your appeal arguments even at this stage, and it should be less expensive than if counsel has to prepare a full case for civil trial. If the administrative appeal fails, much of the trial preparation work will have already been completed and paid for.


 


I have already exhausted the option of appealing to the school’s Academic committee. In fact, I wrote them a letter explaining everything and then went and presented to them in person in an actual meeting. I received an e-mail a week later telling me the board unanimously ruled to dismiss me:


‘The committee has decided to dismiss you from the college due to unsatisfactory academic performance. If you wish to appeal this decision, you may do so in writing to the Dean within ten (10) working days after the decision has been formalized in writing. See Student Handbook, Article XVI-Appeals, Page 2-13, Sections 1 and 2.’


I wrote an appeal letter to the Dean but never heard back from him. Instead, an Assistant Dean called me last Friday to notify me of some summer remediation programs for general anatomy, which they were supposed to have notified me of right after I failed the course. Those programs are now finished, so I would have to wait an additional year. Furthermore, he notified me that the first year class is now full, so they don’t even have space for me in the anatomy course (keep in mind, it wasn’t full when I made my case to the Academic committee. They should have kept one more spot open while my case was pending).



If I can’t be reinstated, I want my tuition money for first year back. Is this possible (could I make a case here)? Could I get back the tuition for all 4 years, since my dismissal was mainly due to their own negligence and discrimination? What about all the emotional distress all this has caused me all summer? Do I have any grounds to sue there?

As to the material elements of such a case, it would help to know what class was failed and the reasons stated for the academic dismissal, and whether they are directly related to your disability. Also the circumstances of other students similarly situated who were not dealt with as severely.


 


I will send you the final letter that I sent to the Dean. It will contain all this information.


 




Courts generally defer to institutions of higher learning when it comes to matters of academic policy and decisions executing that policy and determining the academic suitability of students. And within the Americans with Disabilities Act, institutions may discriminate under certain circumstances, such as:

1. where the disabled student poses a direct threat to the health and safety of others.

2. Also, federal courts have traditionally granted some measure of deference to academic institutions with respect to determining student qualifications to meet program requirements, and whether requested accommodations are reasonable.

In a medical school setting, academic policies may discriminate where the disability poses a danger to the health and safe of others. With respect to determining academic suitability, and institution may discriminate where the student's disability is one that prevents the completion of course work --- for example, a totally paralyzed student who cannot perform the clinical rounds (bloods draws, etc.) required by all students to complete the learning program.

However, if the disability merely requires reasonable accommodation, then upon the student's request, such accommodations should be made, and if they are not, then the school may be liable.

It is important to note that those with disabilities need to request accommodations.

Reasonable accommodation is determined case by case, balancing several factors, including costs to the institution, the relative necessity to the student, overall feasibility and practicality, among others.

Given the limited details of your circumstances, I hope this helped. Consulting with a qualified lawyer in more detail will give you a better idea of your alternatives. Thanks & Best Wishes!




at your service
R Scott Akin

Expert:  rsa.esq replied 1 year ago.
Dear JACUSTOMER-p05d287h:
I hope my first answer did provide some perspective, and thank you for your positive response. Please do take a minute to post your satisfaction --- I would appreciate that.
As for the proper lawyer, you can hire a lawyer licensed to practice in Pennsylvania, whether he lives in that state or closer to you in Maryland. Or, you could hire a Maryland lawyer whom you prefer to represent you in Pennsylvania, but he would have to ask permission from the court in Pennsylvania to appear there on your behalf (a simple procedure called permission to appear "pro hac vice").
I am sorry to hear you've completed the school's appeals process, and that it seems to have been so quickly and arbitrarily disposed of. Is there no option for an school administration reconsideration even at this point?
As you know, this forum is not meant to establish a lawyer-client relationship or serve as a substitute for detail consultation.
To proceed I would really need much more background detail on your circumstances, such as your year in medical school, when and what level was the course (general anatomy) failed (I presume it was a required course for graduation), plus some idea of your performance in other classes and overall; details about the remedial course that would have allowed you to "make up" the work, and the timeline and specific details of the school's failure in notifying you, etc. Also, how is your disability related to your academic termination and whether you had requested accommodation? Then there is the tuition issue, which you just mentioned in your response. So, I would really need quite a bit more information. I am happy to provide a direct e-mail consultation if you wish to contact me directly. Thanks & Best!
Customer: replied 1 year ago.
Hi Scott, thank you for the response once again. Could you provide more details to me about the direct e-mail consultation? My name is Sid by the way.

To answer your questions, I finished my first year of podiatry medical school but my condition only caused me to struggle in one portion of both General anatomy and lower extremity anatomy (the practical portion) . I excelled in all my other classes with an average of 83 and a standard deviation of 4.8. In spite of my poor performance due to my condition (which btw, is unprecedented as I have never had a course where I was tested in the same environmental conditions as the practical portion of anatomy), I still managed to maintain an overall passing GPA of 71.33 for my first year courseload. I am attaching to this, the letter that I sent to the Dean after the school academic committee (CAPS) decided to dismiss me. After this letter was sent, I didn't hear back although I continued to e-mail persistently about it. Only when I sent an e-mail saying that I would look into my legal options (9 days later) did an administrative dean respond. He notified me that the school made an error and failed to notify me that I also failed 'Lower Extremity Anatomy' (for the same reason that I failed the General Anatomy course, the practical portion). He also notified me of some General Anatomy remediation courses that are available online. However, the time has already passed for these courses (they're strictly summer courses), and if anything, they should have notified me of such resources back when they told me that I had failed it. Moreover, the recent communication with the administrative dean has been murky at best. He says that at this point, the dean is considering giving me provisional 2nd year status (the first day of 2nd year was this past Tuesday, btw) if I re-take the lower extremity anatomy exam by the 23rd of this month and complete a general anatomy remediation course online. So I responded inquiring how this could be possible as there are no online General Anatomy remediation courses being offered at this time (the last one finished in July). I also re-emphasized my sentiment with regards to the CAPS committee's negligence and the fact that I felt that they acted in a discriminatory manner in dismissing me without a smidgen of reasonable accomodation. Furthermore, trying to force me to take this re-exam ASAP due to their own mistake makes me seem like i'm being setup to fail as it seems that they want to cover up any wrongdoing on their part. However, he hasn't me e-mailed back (it's been 3 days).

Anyways, here's the letter that I sent to the Dean a few weeks ago that does a good job in explaining the details regarding my situation:

Letter I sent to the Dean:

Dear Dr. Mattiacci:

I hope this letter finds you well. I am writing to you to appeal the decision of the CAPS committee to dismiss me from TUSPM on the grounds of ‘unsatisfactory academic performance.’

In this letter, I will attempt to prove the following points to you:

➢ I did not receive due process from the CAPS committee.

➢ Certain relevant evidence on my behalf was not properly reviewed

➢ The sanction imposed on me was not consistent in keeping with the gravity of the offense based on previous School procedures in policies.

The following criteria validate my claim:

➢ I have an overall passing GPA

➢ My course grade in General Anatomy is due to a personal medical problem that I am now in the process of receiving therapy for. This problem will be fixed by the time the course is offered again

➢ I was never offered the remediation that the student handbook (‘section XI. Re-examinations and Repetition 2b) indicates that I should have been offered.

➢ Other students in the same circumstance as myself were allowed to return to the school.

➢ During the meeting with the CAPS committee, one member stepped out of the room in the middle of my testimony and did not return until after I was done. Prior to leaving the room, he had made a sarcastic remark to me. I don’t believe it to be fair that he was allowed to collaborate on me.

In fact, my grades were good with the exception of one course, where my difficulty was only due to one portion of the course (the practical component of anatomy). I have a medical reason for this difficulty. On July 1st, I explained this medical condition of panic disorder to the CAPS committee and that I am currently receiving therapy for it. More importantly, I explained that it would be treated by the time the course is offered again so that I can prove that I know the material better than my grade indicates. Therefore, I find it discriminatory to dismiss me from Temple University School of Podiatric Medicine based on a medical condition outside my control, especially considering the fact that this problem will be fixed if I am given the chance to re-take the class.

Moreover, the sanction imposed was not consistent in keeping with the gravity of the offense based on previous school procedures in policies. While taking Anatomy this past year, I came to know of students in my class that were 2nd years. They had been given the opportunity to retake anatomy, while still being promoted to 2nd year status. I plead that you please allow me this same opportunity. I would also like to note that I have spoken to the other student from my class in the exact same situation as I am in. I find it unfair that he was allowed to return to the school but the committee decided to dismiss me. The committee did not act fairly.

My Academic Performance:

To begin, please take a look at the following document that I received in the mail from the student services coordinator a few weeks ago. It indicates my 1st year cumulative GPA of 71.33, which is passing.


Overall GPA:

Before we look at my grade in anatomy, the class in which I struggled, first I’d like for you to please take a look at my other 1st year course grades for reference:




Now I could understand the charge of ‘unsatisfactory academic performance’ if I had performed poorly in my other courses. However, with an average of 83 in these other courses, and a standard deviation of 4.80625, it should be quite clear that I’m a hard working student that is capable of excelling academically. In fact, most of my classmates would agree that Histology is the hardest class in the first year curriculum, and I managed to get an 81 in it.

Now let’s take a look at the class in which I struggled: General Anatomy.

Anatomy course-written:

The following screenshot shows my grades for each exam given for General Anatomy during the fall 2012 semester, displaying both my written and practical scores.


I feel it necessary to emphasize at this point, that had the course been only written (as it will be on the board exam), I would have passed, given the different weight distribution for each examination (40% and 35% for the 2nd and 3rd exams, respectively). I would also like to note that my score improved after each exam, as illustrated in the following line graph:


Now, let’s get to the reason why I failed the course: the Practical exam.

Anatomy course-practical:

It is clear that the practical component of anatomy is responsible for my failing grade. This is due to my medical condition of panic disorder.

In spite of the fact that I worked laboriously in lab and knew the material sufficiently before the practical examination when my lab partners would quiz me, I suffered a panic attack prior to and during the timed practical component, where my mind would go completely blank. As I have never taken anatomy (nor have I ever had any experience with lab practicals in a timed setting), this problem only became apparent to me this year after the first practical examination. At that point, I figured it was only a one-time deal, as we all have those days when things don’t go as planned due to personal stress. However, the problem resurfaced in the future examinations in spite of the fact that I did make improvements. I decided to wait until the final result of my re-exam before I went to seek medical help. I am now receiving a 10-week therapy treatment for this, and will pass the class if given the opportunity to take the class again. I will make this promise to you: If I do not pass the class, I will voluntarily leave the school myself.

I don’t believe that it is fair to prevent me from being able to pursue my dreams of becoming a physician due to a personal struggle (that I am now actively taking care of) in one portion of one course.

Considering the fact that this medical condition is the reason for my failure in the course, and that the problem will be fixed by the time I return for 2nd year, I consider the decision to dismiss me to be discriminatory, especially considering the fact that another student in the same situation as me (failed General Anatomy) was allowed to return and the fact that I have met 2nd years that were allowed to retake the course.

Due Process:

With regards to due process, I do not feel that I received the proper administration or assistance from the CAPS committee in conforming with the procedural process as indicated in the student handbook.

Please review the following errors that occurred:

➢ Article XI. Re-examinations and Repetition part 2b In the student handbook states the following:

“b. First, Second, and Third year students who are eligible for re-examinations will be notified that they have the opportunity for informal remediation via a tutoring system (with faculty backup). Tutors will be selected by the course director.”

However, I was never notified about this. When I received the e-mail that stated that I would have to take a retake exam for the General Anatomy course, nowhere in the e-mail was this informal remediation service mentioned. Furthermore, after receiving this e-mail, I looked at the handbook to further familiarize myself with the procedure for retaking an exam for a failed course. Please note that it specifically states, “student … will be notified that they have the opportunity for informal remediation via a tutoring system.” It does not say, “based upon a student’s request, they will be notified that they have the opportunity for informal remediation.” Had I been aware that I must request this on my own time, I would’ve done so. But since it specifically says, “student will be notified,” I patiently waited to be notified about this opportunity for informal remediation via a tutoring system. As I pay a large sum of tuition to the school, I feel that I have every right to interpret Article XI in the literal manner in which it was written. After a few weeks into the spring semester, I sent Dr. Burke an e-mail inquiring about assistance for the failed course, but I received no e-mail back. I consider the negligence on the part of the Office of Educational Affairs in failing to notify me of clearly stated regulations in the handbook to be irresponsible and unprofessional. Therefore, I find their reason to dismiss me in spite of their negligence to be unreasonable and unfair.

Furthermore, during the meeting with the CAPS committee, one member stepped out of the room during my testimony and did not return until after I was done. He had made a sarcastic remark to me about not being able to name all my grades off the top of my head before he left the room. He also had a very disappointed look on his face when he returned. I believe that he influenced the other people in the room and don’t believe it to be fair that he was allowed to collaborate on me.

Contribution to the school:

I strongly believe in the mission and values of the school and based on this belief, I have given back to the school to the best of my ability.

Based on this belief, I was appointed as the ‘improvement chair’ of my class this past year and have been working diligently with the administration on main campus to improve the TUSPM website. The newly renovated website should be completed by September based on my current timetable. This is a huge renovation project that is urgently needed, as it is the most salient issue that both students and potential students have had grievances with.

Moreover, I have taken many of the skills that I have obtained through my prior work experience and have educated and assisted my classmates both in the classroom and through school clubs, such as the Technology club. I was elected president-elect of the Technology club and have worked hard to educate members of the school on how to make their own websites and how to effectively utilize information technology to market ones practice.

I am still extremely passionate about podiatric medicine. Unlike many others, I did not get into this field for the money. Prior to enrollment at TUSPM, I worked in different facets of the health care industry, including consulting, and was on track towards a very financially rewarding career had I stayed. However, the opportunity to have a direct impact on the multitude of diabetic patients that I encountered in my work is what motivated me to pursue this field, and this passion will enable me to overcome any obstacles I endure along the way.

Conclusion:

I want to thank you for taking the time to read this letter. I hope you will understand my personal situation and personal struggle with only one course and give me one more chance to prove that I am capable of proficiency in Anatomy.

If the motto of TUSPM is truly "Where the Student Comes First," then I believe that it means that you should care about students that face minor struggles along the path, particularly if the student is an asset that is passing overall and makes a wholehearted effort to improve a weakness. I don’t believe that automatic dismissal coincides with this motto.

I hope that you will please reconsider the faulty decision of the CAPS committee as I am fully committed to fixing my problem and excelling in this field and giving back to the school and field to the best of my ability.

Please feel free to write back to me at XXXXXXXX or call me at XXXXXXXX.

Thank you,

Sid
Expert:  rsa.esq replied 1 year ago.
Hi Sid:
The dean's offer of provisional status indicates to me that they themselves recognize some irregularity in the way they treated you, and your instincts about the allowance to retake the exam by the short time frame of the 23rd seem astute. I suggest a letter from an attorney laying out for them the situation once again and sounding your acceptance of the provisional status so long as you are given a reasonable time to complete the necessary remediation. Of course the letter should be very measured and non-threatening in tone, but firm in requesting they correct the situation. Coming from your legal representative would send a signal that you are serious about resolving the situation, and actually prefer to do so ASAP and without the need for judicial intervention (as I'm sure they would prefer also!) You can contact me directly through www.rscottakin.com.
Best
Scott
P.S. again thanks for the 'thumbs up'

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