Carofino v. Forester

• Decision Date: 31 August 2006
• Docket Number: No. 03 Civ. 6258(PKL).,03 Civ. 6258(PKL).
• Citation: 450 F.Supp.2d 257
• Parties: Jonathan CAROFINO & George T. Carofino, Plaintiffs, v. Bruce M. FORESTER, M.D., Defendant.
• Court: U.S. District Court — Southern District of New York

450 F.Supp.2d 257

Jonathan CAROFINO & George T. Carofino, Plaintiffs, v. Bruce M. FORESTER, M.D., Defendant.

No. 03 Civ. 6258(PKL).

United States District Court, S.D. New York.

August 31, 2006.

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Law Office of Carmen S. Giordano, New York City, Carmen S. Giordano, for Plaintiffs.

Meiselman, Denlea, Packman, Carton & Eberz P.C., White Plains, NY, David S. Douglas, for Defendant.

OPINION AND ORDER

LEISURE, District Judge.

This is a diversity action for medical malpractice, fraud, and unjust enrichment. Plaintiffs Jonathan Carofino ("Jonathan") and his father George T. Carofino ("George"), both residents of Connecticut, allege that Jonathan's psychiatrist, defendant Bruce M. Forester, M.D., a resident of New York, failed to (1) properly diagnose, and in fact misdiagnosed, Jonathan's condition; (2) provide proper, and in fact provided improper, psychiatric treatment; and (3) prescribe proper, and in fact prescribed improper, medication. They further allege that defendant fraudulently billed plaintiffs for psychiatric treatment that was never rendered and, as such, defendant was unjustly enriched by plaintiffs' payments for such fictitious treatment. Defendant now moves for summary judgment, seeking a finding of non-liability on plaintiffs' fraud and unjust enrichment counts. Defendant further moves, in limine, for a finding that his prior conviction for health care fraud is inadmissible at trial pursuant to Federal Rule of Evidence 404(b). Plaintiffs cross-move for the imposition of sanctions pursuant to Federal Rule of Civil Procedure 11 on the ground that defendant's summary judgment motion as to plaintiffs' fraud claim is completely baseless. Defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART, defendant's motion for the exclusion of certain evidence pursuant to Rule 404(b) is DENIED, and plaintiffs' cross-motion for Rule 11 sanctions is DENIED.

BACKGROUND¹

I. Defendant's Allegations of Undisputed Material Issues of Fact

Defendant alleges that the Carofinos sought his services in late 1999. Jonathan, who was in his late twenties at the time, had been experiencing panic attacks. (Def.'s 56.1 ¶ 1.) Defendant claims that the parties agreed that George would pay defendant $600 per week for his services, and defendant would seek any additional payment directly from those insurance companies that George identified as Jonathan's carriers. (Def.'s 56.1 ¶ 2.) The suggestion to bill Jonathan's carrier was made by George. (Def.'s 56.1 ¶ 10.) Between 2000 and part of 2001, defendant treated Jonathan, diagnosing him with "panic disorder." Jonathan failed to attend a number of his scheduled appointments. (Def.'s 56.1 ¶ 3.)

Jonathan ceased his treatment with defendant after moving from New York City back to his parents' home in Connecticut in the spring of 2001. (Def.'s 56.1 ¶ 4.) In March 2003, defendant pled guilty to an indictment brought in this district for health care fraud and false statements made in connection therewith. The indictment related to certain charges made by defendant to Fortis Insurance Co. ("Fortis") for psychiatric counseling sessions that Jonathan did not attend between October 2000 and the summer of 2001. (Def.'s 56.1 ¶ 5.) Defendant did not charge George for any of these appointments and, accordingly, George did not pay for any of these appointments. (Def.'s 56.1 ¶ 6.) In fact, George did not make any payments to defendant after October 2001. (Def.'s 56.1 ¶ 7.)

Defendant claims that all of the payments for Jonathan's treatment were made by George Carofino, D.D.S., P.C. ("Carofino P.C."), the professional corporation created by George to serve as his dental practice. (Def.'s 56.1 ¶ 8.) According to defendant, George never reimbursed this entity for its payments to defendant. (Def.'s 56.1 ¶ 8.) When questioned by defendant about why this entity, rather than George, in a personal capacity, made payments to defendant, George refused to answer, invoking his Fifth Amendment privilege against self-incrimination. (Def.'s 56.1 ¶ 9.)

Defendant further contends that, with respect to insurance billing, George had admitted that billing for a missed appointment is "not only not `fraudulent,' but an accepted practice that George himself used as a regular part of his own dental practice." (Def.'s 56.1 ¶ 11.) According to defendant, George in fact suggested to defendant that he "modify his bills so that George . . . could attempt to deceive one of his insurers into thinking that [defendant] was providing `family therapy,' and not just treatment of Jonathan." (Def.'s 56.1 ¶ 12.) Finally, defendant alleges that George falsely represented that Jonathan was an employee of George's dental practice so that insurance benefits might be available to Jonathan. (Def.'s 56.1 ¶ 113.)

II. Plaintiffs' Responses and Allegations of Additional Material Facts to Which They Contend Genuine Issues Exist

Plaintiffs claim that Jonathan began seeing defendant after "experienc[ing] episodes of mental illness, manifesting initially as perceived anxiety and panic." (Pl.'s 56.1 ¶ 16.) In one episode in July 1999 he visited New York Presbyterian Hospital's emergency room, where he reported physical sequelae stemming from panic or disguised mania. (Pl.'s 56.1 ¶ 16.) In November 1999, Jonathan turned to his parents for help. In response, George was referred to defendant by a friend. (Pl.'s 56.1 ¶ 18.)

Plaintiffs claim that defendant told George and his wife, Dianne Carofino ("Dianne") that he wanted to see Jonathan three times per week. In reality, he surreptitiously told Jonathan that he wanted to see him only twice a week. (Pl.'s 56.1 ¶ 2.) They claim that defendant agreed to bill Fortis directly for Jonathan's treatment, and that "[i]t was understood" that George would pay those costs that Fortis would not cover above and beyond the $900 weekly fee. (Pl.'s 56.1 ¶¶ 2, 10.) After meeting with defendant, defendant told George and Dianne that he would "constantly keep them apprized of Jonathan C's treatment and progress during the course of treatment." (Pl.'s 56.1 ¶ 21.)

According to plaintiffs' allegations, defendant in reality only saw Jonathan, "at most," once per week, while at the same time representing to George and Dianne that he was seeing Jonathan three times per week and billing them (and Fortis) accordingly. Defendant often would double-bill plaintiffs. (Pl.'s 56.1 ¶ 3.) Plaintiffs agree that Jonathan moved back to Connecticut in early 2001. They assert, however, that prior to his move Jonathan's mental health had declined significantly. Defendant continued to bill the Carofinos, and the Carofinos paid such bills, after October 2000 and continuing through the period after defendant ceased seeing Jonathan. (Pl.'s 56.1 ¶¶ 4, 7.) Defendant was prosecuted for billing for this fictitious treatment. (Pl.'s 56.1 ¶ 5.)

At some point after his therapy had begun, Dianne confronted defendant about the discrepancies in defendant's scheduling and billing, and defendant lied about having held regular double sessions with Jonathan (Pl.'s 56.1 ¶ 24) and dismissed the Carofinos' concerns about Jonathan's care (Pl.'s 56.1 ¶ 28). Defendant continued to lie to George and Dianne about Jonathan attending three weekly appointments and taking his prescribed medication. (Pl.'s 56.1 ¶ 29.)

Plaintiffs allege generally that Jonathan's condition worsened "to the point where he became completely decompensated and potentially suicidal." (Pl.'s 56.1 ¶ 32.) Between November 1999 and April 2001, his mental health "dramatically worsened, Jonathan C. became a shut in, [and] he remained in a hypomanic state and was caused to suffer permanent psychiatric injury." (Pl.'s 56.1 ¶ 36.) During his treatment, George and Dianne (1) repeated their concerns to defendant about Jonathan's worsening condition (Pl.'s 56.1 ¶ 33); (2) sought, but were denied, group sessions with Jonathan (Pl.'s 56.1 ¶ 34); and (3) asked defendant to see Jonathan less than three times per week, but he declined (Pl.'s 56.1 ¶ 35).

Plaintiffs contend that George dissolved his dental practice in October 2001, at which time he reimbursed his practice for any payments it had previously made to defendant. Additionally, George made at least two personal payments to defendant. (G. Carofino Decl. ¶¶ 17, 23.)

DISCUSSION

I. Summary Judgment Standards

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). The question of whether a fact is material is determined by the underlying substantive law: "[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505.

The moving party carries the burden of demonstrating that no genuine issue of any material fact exists, see Chambers, 43 F.3d at 36; Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994), and, in considering whether the burden is met, a court draws all inferences, and resolves all ambiguities, in favor of the nonmovant, Chambers, 43 F.3d at 36. Once the movant has demonstrated that there is no genuine issue as to any material fact, the non-movant "must come forward with `specific facts showing there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d...