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How to sue a non-profit credentialing agency???

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I have decided to take a non-profit credentialing agency to small claims court. Who should I name as the defendant in the court papers: the organization's President or the Board Chair???

 

My situation follows (suggestions would be appreciated):

 

I have been embroiled in a dispute with a non-profit organization that conducts professional testing and credentialing for an industry on a national level. The non-profit organization provided a faulty product--computer based exam--that failed to function fully. The malfunction was witnessed by the non-profit's hired proctor--Prometric Testing Center--and the proctor reported the malfunction to the non-profit organization. As a result of the exam not functioning properly I received a failing grade of 73% when 75% was required to pass. The failure can be indisputably connected to the malfunction as I was unable to access a statistically significant number of the questions--many more than would have been necessary to reduce my score 2%.

 

Throughout the day of the 8 hour long exam, I continually informed the proctor of the malfunctioning exam but she was unable to correct the problem. Immediately following the conclusion of the exam, both the proctor and I notified the non-profit organization. Long before I received my exam results (and before I knew I failed), I requested that the exam attempt be voided and I receive a new date to retake the exam.

 

A greater than six month review of the malfunction was undertaken. In the final conclusion, the non-profit acknowledged that something unusual did occur and that they observed some of my complaints when they played back the recording of my exam. However, in their words, "since the review could not determine the exact cause of the disruption" they were unwilling to void the exam. Even though the proctor witnessed the problem, and witnessed that the problem was independent from my actions, the non-profit stated that the proctors are not qualified to determine if the test and/or computer is functioning properly, and ultimately they cannot rule out that I somehow caused the disruption.

 

After repeatedly appealing the non-profits denial of responsibility, they have basically told me they are unwilling to discuss the situation any further... so get lost!

 

Subsequently, I have learned that A.) There was a known bug in their testing software, that cause problems similar to what I reported. B.) Prior to my exam date, when a different but very similar situation arose, the solution was to void the exam and allow a retake. C.) After my exam date, when a test taker complained of subjective problems with their testing environment (i.e. noise, temperature, dirty), they were offered a choice of compensatory points or a void/retake. My situation was clearly handled very different from problems that came before and after.

 

It should also be noted that while I have subsequently retaken and passed the exam, the original failure has irreparably damaged my career outlook.

 

I have discussed my case with two lawyers and both felt that I have been abused by the non-profit organization. However, they both said this isn't a money case and the best I could hope for is to have the exam voided and expunged from my records. Since there is pretty much no chance of getting a monetary settlement, they wanted roughly 20 to 30 thousand in retainer fees... which I do not have. AND they felt the cost would probably rise from there.

 

This basically leaves me to fend for myself and I have decided to represent myself by taking the case to small claims court and suing for the approximately $1,000 exam fee. I don't think small claims court will allow me to sue for voiding of the exam. However, I am hoping that by bringing legal action they will simply prefer a quick settlement of voiding the exam... and if they won't then hopefully I will at least get my money back--small vindication but better than nothing.

 

So back to my original question: who should I file the small court legal action against, the President or Board Chair??? Any other thoughts or suggestions would be appreciated.

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Thank you for your comment.

Hmmm, I was told that small claims court requires an individual to be named as the defendant... Personally, I don't care either way. I simply want to make sure everything is done properly so the organization cannot weasel out of the situation very easily. If they have an easy out (i.e. improperly filed case), they will be less likely to consider negotiating with me.

How would I determine if the non-profit organization is a corporation???

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Okay, so I have done a bit of sleuthing... this case takes place in the State of Maine. According to Maine's guidelines, you are correct. A corporation can be the defendant. "If the named defendant is a corporation, you should try to serve an officer, director, general agent, or attorney authorized to accept service."

Thus, it appears to not matter if I serve the President or the Chair... I would think either would be authorized to accept service. What do you think???

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Hmmm, I was told that small claims court requires an individual to be named as the defendant...

 

Didn't you bother to look up the small claims rules of your state?

 

I would think that's a logical first step to handling this without a lawyer.

 

 

How would I determine if the non-profit organization is a corporation???

 

Start with the organization's website. There should be all sorts of information about the organization's structure.

 

If that doesn't get it, figure out where the home office is located and look them up on the state's corporation commission or secretary of state's business search feature.

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Okay, so I have done a bit of sleuthing... this case takes place in the State of Maine. According to Maine's guidelines, you are correct. A corporation can be the defendant. "If the named defendant is a corporation, you should try to serve an officer, director, general agent, or attorney authorized to accept service."

Thus, it appears to not matter if I serve the President or the Chair... I would think either would be authorized to accept service. What do you think???

 

OK, the case takes place in Maine. That means that you are in Maine and want to use the Maine small claims court.

 

But where is the organization's home office located? If the home office is in another state you'll need to serve the registered agent who is located in your state.

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At Adjusterjack:

Thank you for your comments.

 

With regards to approaching a lawyer before considering small claims: I went to a lawyer first because the ramifications of the non-profit credentialing agency’s actions are huge and go way beyond the scope of small claims court. I work in an industry where this sort of black mark on your record is pretty much career ending—and so far it has been for me. If I had access to thousands of dollars I would fight this to the end. I approached lawyers in the hope that someone would feel strongly enough that they could win and be willing to take my case pro bono. Unfortunately, that has not been the case. Two lawyers both expressed that I had a very good case with much documentation to support my argument but they felt it would be a costly fight with no guarantee of a payout in the end. Therefore they wanted me to pay a significant retainer fee that I simply do not have.

 

This leaves me with my final option of representing myself by pursuing the case in small claims court. I recognize that winning in small claims will not undo the bad situation I am. However, I am the type of person that believes in pursuing what is just and fighting until I have no remaining options. Plus, I am hoping that if they are legally confronted with a situation where they will lose in court, perhaps they will choose mediation to prevent going to court and be more willing to negotiate the matter by simply voiding the exam. I am confident I will beat them in small claims court because: 1.) I have emails from their IT dept. stating the software was corrupted by a bug that they could not figure out how to correct. 2.) I have letters from their representatives corroborating that some of the disruptions I reported were observed when they played back the recording of my exam. 3.) Their hired proctor reported observing the problems and being unable to fix them. 4.) I have uncovered proof of similar events—occurring both before and after my exam date—that they resolved by either voiding the exam of providing compensatory points to the score. 5.) Lastly, small claims court is less formal and the judges are usually willing to look at things simply and from a common sense perspective… my case is extremely simple and common sense would be if a computer based exam failed to function (and witnessed by the non-profits hired proctor), then the examinee should not be held responsible.

 

Thank you for the information about determining the organization’s corporate status. I will look into it.

 

The non-profit organization is headquartered in Pennsylvania so this is going get a little tricky because I’m sure the non-profit will argue that Maine lacks jurisdiction over the case. However, I did a little research and the wording of Maine’s Long-Arm Statute provides me the ability to pursue the case in Maine because this is where the non-profit provided the service (the exam). Soooo, I know I am in the correct court. But back to your final point… what if the non-profit does not have a registered agent in the State of Maine? I was planning on paying to have the President or Chair served at the PA headquarters. Do you think that would be incorrect???

 

Thanks again for your assistance!

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Check and see if they have an agent for service of process in Maine or the Maine procedure for serving an out of state corporation with no resident agent. That would be the most efficient.

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At RetiredinVA:
The organization I am challenging is notorious for being ultra defensive. You are correct that it is only a $1,000 case. However, being a national organization, they do everything possible to defend their standing and reputation... which is why they are reluctant to admit that their computer exam has problems--even after their proctor witnessed the problem.

I simply don't want to give them advanced warning of anything before they have been served. My question to Doucar was simply if one can determine if the organization has an agent in the state without alerting them they are about to be served. Based on your post, there is.

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I'm curious, do you think it would make more sense to file a complaint with the Better Business Bureau (BBB) before taking the non-profit to small claims court???

According to the BBB's website, they would investigate the complaint and contact the business on my behalf. I'm wondering if this would be the more prudent course of action because the BBB may dig up more supporting material that I am not currently aware of.

I would appreciate your input.

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The BBB is useless with regard to protecting the consumer. It survives only by virtue of membership fees. If it got a reputation for finding fault with its members it would be out of business. Sure, it'll investigate. But it won't give you any of the information it generates and it will almost certainly find that its member did nothing wrong.

 

The way you find the registered agent is the way I suggested earlier. You check the Maine corporation records so see if the organization is registered and there you will likely find the name and location of the registered agent.

 

If the organization is not registered in Maine you'll have to use Certified Mail - Restricted Delivery to serve the President of the organization.

 

http://www.courts.maine.gov/maine_courts/small_claims/smallclaimsguide/arrange_service.html

 

If that doesn't work you won't be able to get a Maine sheriff to go to Pennsylvania so you will have to hire a private process server in Pennsylvania.

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I was kind of thinking the same thing but I was wondering if I would look better in the eyes of a court if I at least tried getting their assistance... so it would be clear that I tried all avenues before getting the courts involved. It would probably be a waste of time and I will most likely not bother with the BBB. I just wanted a second person's opinion.

Thanks for your input!

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Let me explain why they don't care. A smalls court decision in your favor is going to result in a one page judgment that they owe you $xxxx. Period. Major national journalists do not cover Maine small claims courts. It would cost the non-profit more than $1000 to even appear. Therefore they may not even bothering to defend your suit. So, when the case is called, if service is proper and the defendant doesn't appear, the judge isn't going to listen to your story. He will just grant judgment for $xxxx and wish you Bon voyage. Good luck with your suit.

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At RetiredinVA:

What you are saying is common sense and I agree that may be the outcome. If it is… well, I would prefer they remove the erroneous failure from my records and they can keep my fee--but return of my fee would be better than nothing at all.

 

HOWEVER… I have been studying/researching this particular organization for a while now and I know from their history that they will likely fight. You see, their exams are considered the golden-standard and everyone in my particular industry must pass them. Additionally, every state in the country recognizes them as the ONLY standard for licensing purposes. Further, foreign citizens wishing to work in this country also have to pass this organization’s exams. Heck, some foreign countries even recognize the results of this organization’s exams. Thus, this organization has a strong interest in making sure no one can find a flaw in their testing system.

 

You stated that major national journalists do not cover Maine. That is a fairly narrow view of the great State of Maine but I understand your point and do not take offense. What you don’t seem to understand is that people in my industry are sharing information on a global level—we are definitely not limited to Maine and do not need national journals to disseminate information. Many in my industry know of my dispute with the organization but it has always been my word against the organization’s. Any type of court ruling—even small claims—against the organization would spread like fire because I am definitely not the only disgruntled examinee and many have sought a means of justice. If I win in small claims court, I can assure you that many of my peers will follow my lead and the organization will be faced with a ton of annoying little small claims court cases. Heck, after all of the problems this organization has caused me, if I win I will be strongly encouraging my disgruntled peers to follow my lead!!!

 

So RetiredinVA, please don’t think I am arguing against your legal knowledge—which I’m sure is far superior to mine—or your application of commonsense. I’m simply telling you that the entity I am challenging has proven in the past that they do not follow a commonsense approach to conflict-resolution.

 

Think of it this way: I claimed their exam did not function properly; their hired proctor corroborated my story; their IT dept. agreed that what both the proctor and I observed is plausible; their investigation team agreed and actually observed in recordings that disruptions did occur… Commonsense would tell you that the complainant is telling the truth and something disrupted his ability to complete the exam, and a sensible person would void the exam attempt and schedule a redo. RIGHT??? Yet, this organization has instead clung to the notion that due to the fact that they cannot figure out how their own exam functions on a software/coding kind of level, then they are not responsible and somehow the examinee will have to accept the negative outcome.

 

Thanks again for your input. I do appreciate hearing from experienced people.

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HealthCareProvider,

 

Thank you for the post.  Have you considered filing a regular civil claim? You would need to be willing to do a lot of research on your own and would likely need the help of a legal aid clinic, but it is possible.  If they have actually permanently affected your earning potential and prospects, I would think that is a claim that reaches far, far beyond a $1000 small claims amount.  A future trial would need discovery and the hiring of tech experts (for the testing device) so you may eventually need the assistance of counsel. If they have their main office in Pennsylvania; therefore,  you could file this case federally. Have you looked for attorneys outside Maine that could do this on a contingency basis?

 

You may be able to find attorney, in another state here.

 

-The Findlaw.com Team

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I have decided to take a non-profit credentialing agency to small claims court. Who should I name as the defendant in the court papers: the organization's President or the Board Chair?

 

You sue the entity itself, not an officer, director, or employee.

 

 

 

I was told that small claims court requires an individual to be named as the defendant.

 

Told by whom?  This is, of course, incorrect.

 

 

 

How would I determine if the non-profit organization is a corporation?

 

http://www.maine.gov/sos/cec/corp/

 

 

 

"If the named defendant is a corporation, you should try to serve an officer, director, general agent, or attorney authorized to accept service."

Thus, it appears to not matter if I serve the President or the Chair... I would think either would be authorized to accept service. What do you think???

 

While it's not clear what you've quoted from here, haven't you answered your own question?

 

 

 

what if the non-profit does not have a registered agent in the State of Maine? I was planning on paying to have the President or Chair served at the PA headquarters. Do you think that would be incorrect?

 

Why wonder "what if?"?  Why not figure out if it does or doesn't?  If the corporation is doing business in ME, then it almost certainly has a registered agent there.  If not, then serving the president of the corporation wherever he is located would be fine.  I doubt you will be able to ascertain the identity of the chairman of the board (unless it's a publicly traded corporation), so I wouldn't worry much about that.

 

 

 

The organization I am challenging is notorious for being ultra defensive.

 

Says who?  I assume you're getting this from rants written by disgruntled consumers.  I can assure you that no national corporation cares about someone calling for the identity and address of a registered agent.  In any event, as others have noted, all you have to do is search at the appropriate web site.  Don't make things more complicated than they need to be.

 

 

 

I'm curious, do you think it would make more sense to file a complaint with the Better Business Bureau (BBB) before taking the non-profit to small claims court?

 

No, but not for the cynical reasons others have mentioned.  At the end of the day, the BBB has no power to award money or make anyone do anything.  Also, did you check with the BBB before using this company's product/service?  Do you know anyone who has ever done that?

 

 

 

I was kind of thinking the same thing but I was wondering if I would look better in the eyes of a court if I at least tried getting their assistance... so it would be clear that I tried all avenues before getting the courts involved.

 

The court isn't going to care in the slightest.

 

 

 

So, when the case is called, if service is proper and the defendant doesn't appear, the judge isn't going to listen to your story. He will just grant judgment for $xxxx and wish you Bon voyage.

 

I certainly hope that's not true.  It's not true in my state.  When a small claims case is called and the defendant doesn't show up, courts in my state will either continue the trial or will hear the plaintiff's case and rule based on what the plaintiff proves or doesn't prove.  To get a judgment, the plaintiff must still prove the case.  If that weren't the case, I imagine we'd see a cottage industry of folks filing tons of fraudulent claims in the hope that 1 or 2 out of 10 don't show.

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HOWEVER… I have been studying/researching this particular organization for a while now and I know from their history that they will likely fight.

 

When you did your research, how many small claims cases for roughly $1k did you read about?  What was the source of the information you read?  Betcha $1 the answer to the first question is zero.

 

 

 

You stated that major national journalists do not cover Maine. That is a fairly narrow view of the great State of Maine but I understand your point and do not take offense.

 

That's not what "RetiredinVA" wrote.  It's easy to contradict someone if you misquote or misstate what was written.  What "RetiredinVA" actually wrote was, "Major national journalists do not cover Maine small claims courts."  Do you doubt that's true or that recognition of the truth of this fact somehow reflects negatively on the State of Maine?  If so, I can assure you that the statement would be true regardless of what state were referenced.  Indeed, the statement is so obviously true that it's hardly worth mentioning.  The point is that the company likely won't care much about your case because it's small $$ and almost certain to generate no substantial negative publicity.

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@ Findlaw_FN:

Thank you for your constructive input. I have no legal background so no I had not considered representing myself in a civil case because I did not know that was possible. In all honesty, I'm not sure I am up for that challenge and I know that I do not have any funding to support hiring counsel to advise me.

I spoke with one lawyer in Maine, a family member in Mass. that is a retired lawyer, and a lawyer in the non-profit's city. They all pretty much said the same thing. My argument and supporting documentation is compelling and commonsense dictates that the exam should have simply been voided with a retake scheduled. However, after looking at the history of the organization I am challenging, they all agreed that this is going to be an expensive fight. The third lawyer has actually brought a case against the organization and while he won, he said it was clear the organization was going to put up every road block imaginable in the hope the plaintiff would give up.

@ pg1067:

Thank you for your observations.

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HealthCareProvider,

 

You are welcome, I completely understand your situation.  While I still think you should consider filing a bigger federal case pro se (you represent yourself), all the advice you have gotten is true so I can provide you with some helpful links to free information:

 

Starting a Law Suit: Initial papers

Filing a Lawsuit: The Discovery Process

 

May be able to provide more direct help:

Pine Tree Legal Assistance

State of Maine Lawyers and Legal Help

Maine Volunteer Lawyers Project

 

Is there a possibility that there are others to whom this has happened? A class action suit may be more viable.

 

The Findlaw.com Team

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You sue the entity itself, not an officer, director, or employee.

 

 

 

 

Told by whom?  This is, of course, incorrect.

 

 

 

 

http://www.maine.gov/sos/cec/corp/

 

 

 

 

While it's not clear what you've quoted from here, haven't you answered your own question?

 

 

 

 

Why wonder "what if?"?  Why not figure out if it does or doesn't?  If the corporation is doing business in ME, then it almost certainly has a registered agent there.  If not, then serving the president of the corporation wherever he is located would be fine.  I doubt you will be able to ascertain the identity of the chairman of the board (unless it's a publicly traded corporation), so I wouldn't worry much about that.

 

 

 

 

Says who?  I assume you're getting this from rants written by disgruntled consumers.  I can assure you that no national corporation cares about someone calling for the identity and address of a registered agent.  In any event, as others have noted, all you have to do is search at the appropriate web site.  Don't make things more complicated than they need to be.

 

 

 

 

No, but not for the cynical reasons others have mentioned.  At the end of the day, the BBB has no power to award money or make anyone do anything.  Also, did you check with the BBB before using this company's product/service?  Do you know anyone who has ever done that?

 

 

 

 

The court isn't going to care in the slightest.

 

 

 

 

I certainly hope that's not true.  It's not true in my state.  When a small claims case is called and the defendant doesn't show up, courts in my state will either continue the trial or will hear the plaintiff's case and rule based on what the plaintiff proves or doesn't prove.  To get a judgment, the plaintiff must still prove the case.  If that weren't the case, I imagine we'd see a cottage industry of folks filing tons of fraudulent claims in the hope that 1 or 2 out of 10 don't show.

I apologize, but your tone is really inappropriate. There is really no need to be rude and arrogant. This person has serous issue and is just asking for help. That is all. You are mentioning that,  "I assume you're getting this from rants written by disgruntled consumers.  I can assure you that no national corporation cares about someone calling for the identity and address of a registered agent." Well, so what if someone is disgruntled? If that number is very high, then that has to mean something. There has to be some mechanism which oversees everyone, including such a highly protected entities as non - profits. Being non - profit should not grant someone absolute right to "not to care about $1000 law suit." Well, I think they should care and they do need to care, because there are means of how to bring about investigation about possible ethical violations. With proper advocacy everything can be changed. I see you are some kind of silver member. Please, please tone down your rude tone, because we are dealing here with people who are experiencing pain and difficulties. Thanks.

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HealthCareProvider,

 

You are welcome, I completely understand your situation.  While I still think you should consider filing a bigger federal case pro se (you represent yourself), all the advice you have gotten is true so I can provide you with some helpful links to free information:

 

Starting a Law Suit: Initial papers

Filing a Lawsuit: The Discovery Process

 

May be able to provide more direct help:

Pine Tree Legal Assistance

State of Maine Lawyers and Legal Help

Maine Volunteer Lawyers Project

 

Is there a possibility that there are others to whom this has happened? A class action suit may be more viable.

 

The Findlaw.com Team

Thanks for showing great empathy and giving human touch to this issue. 

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To the original poster: I hear you, and understand you, and I am with you. I want to hear in which form this process will emerge. You are dealing with injustice here. You are one person against hermetically insulated entity. However, with the proper advocacy you can get through. I am thinking even on the level where legislature will be changed and where these kind of entities will not have absolute freedom to act w/o taking any responsibility in cases that they inflicted injustice and damage toward these they suppose to protect.

 

Also, I can not discern of what profession you are talking about. MD? Nursing? PsychD? Anyway, let me remind you that most ethical codes of health profession have embedded into them rules about use of technology in testing, and rules about proper evaluation of technology before it becomes public, as well as remedies for cases like yours. You may argue that they, themselves, broke their own ethical code.

 

Finally, be careful of not talking too much publicly about this, as some boards actually "got you" and prohibit you to talk anything negative about them in public, not to mention lawsuit. You may be easily on target for their retaliation, but this is something that you might then turn into your favor too. 

 

And yes, I do not want to discourage you, but here is one case for you to read, but again ... this case might be a good starting point to prepare for a broader advocacy offensive on a legislative level. Just think of how  many people you could help if you are successful in changing way how applicants are treated, because I am sure that you are not the only one who was treated poorly. In other words, I am sure there are many other "disgruntled" applicants, as previous poster inappropriately labeled them.

 

So, here is that case.. good luck and I am monitoring curiously and with a great support your case. Best regards

https://caselaw.findlaw.com/ky-supreme-court/1108789.html

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