Gotlin v. Lederman
| Decision Date | 21 May 2009 |
| Docket Number | No. 05 Civ. 1899 (ILG).,No. 04 Civ. 3736 (ILG).,04 Civ. 3736 (ILG).,05 Civ. 1899 (ILG). |
| Citation | 616 F.Supp.2d 376 |
| Parties | Gary D. GOTLIN, et al., Plaintiffs, v. Gilbert S. LEDERMAN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Bruce G. Behrins, Behrins & Behrins, P.C., Staten Island, NY, for Plaintiff.
Mary Elizabeth Pearson, Kopff, Nardilli & Dopf, New York, NY, for Defendant Scott Gilbert Lederman, M.D.
Anthony Albert Lenza, Jr., Amabile & Erman PC, Staten Island, NY, for Defendants Philip Jay Silverman and Irina Grosman.
Melissa Melzer, Nancy J. Block, Anthony M. Sola, Martin Clearwater & Bell LLP, New York, NY, for Defendants Staten Island University Hospital, et al.
INTRODUCTION
These actions are brought on behalf of 20 Italian nationals, all of whom succumbed to various types of cancer, against three physicians who treated them, the hospital where they were treated, and various directors, officers, and employees of the hospital. The claims are for medical malpractice, hospital and medical negligence, lack of informed consent in violation of New York Public Health Law § 2805-d, consumer fraud and false advertising in violation of New York General Business Law §§ 349-350, and wrongful motion for summary judgment is granted in part and denied in part.
The present motion applies to two separate but indistinguishable causes of action arising out of the same or similar factual circumstances. Deceased plaintiffs Giuseppe Caramanna Bono ("Caramanna"), Dino Brovelli ("Brovelli"), Dino Cattai ("Cattai"), Francesco Centore ("Centore"), Giuseppe DiGanci ("DiGanci"), Roberto Ettore ("Ettore"), Massimo Facchini ("Facchini"), Giancarla Pesci ("Pesci"), and Antonio Roda ("Roda")—through Gary D. Gotlin, the Richmond County Public Administrator—brought claims against the defendants on August 27, 2004, under civil docket number 04 CV 3736 ("Gotlin I"). Deceased plaintiffs Patrizia Cataranelli ("Cataranelli"), Massimo Cervone ("Cervone"), Anna Assunta Spirito Guerriero ("Spirito"), Stefano Baccichetto ("Baccichetto"), Giuseppina Busti Billi ("Busti"), Gemma Emilia Caberti Amato ("Caberti"), Giuseppe D'Ambrosio ("D'Ambrosio"), Giovanna Deodato Tiso ("Deodato"), Bianca Maria Giovannini Lucchi ("Lucchi"), Piera Mattaini Landoni ("Landoni"), and Vincenzo Scurto ("Scurto")—through Public Administrator Gotlin—brought claims against the defendants on April 19, 2005, under civil docket number 05 CV 1899 ("Gotlin II") and amended those claims on June 8, 2005. The surviving spouses of these decedents have also brought derivative claims for loss of consortium.
The defendant physicians are Gilbert S. Lederman, M.D. ("Lederman"), Philip Jay Silverman, M.D. ("Silverman"), and Irina Grosman, M.D. ("Grosman"). The plaintiffs have also brought suit against Lederman's professional corporation, Gilbert Lederman, M.D. P.C.2 The defendant hospital corporations are Staten Island University Hospital ("SIUH"), North Shore-Long Island Jewish Healthcare, Inc. ("Healthcare, Inc.") and North Shore-Long Island Jewish Health System, Inc. ("System, Inc."). The defendant directors, officers, and employees of the hospital corporations are Joseph Conte, Maria Gelmi-Nourbaha, Andrew J. Passeri, Alfred L. Glover, Ralph J. Lamberti, Gerald Ferlisi, Anthony C. Ferreri, Betsey Mercereau, Rick J. Varone, Joseph R. Pisani, Dale Tait, John L. Costello, John A. D'Anna, and John M. Shall (collectively, with SIUH, Healthcare, Inc. and System, Inc., "the Hospital Defendants").
In a Memorandum and Order dated May 3, 2005, the Court provided background for these claims:
Plaintiffs allege that in late 2001 or early 2002, defendants created an International Patient Program through which they marketed the Fractionated Stereotactic Radiosurgery ("FSR") cancer treatment method to Europeans and, in particular, Italian nationals. FSR involves precision radiation using multiple, finely contoured beams from many different angles directed at the cancer, minimizing radiation to normal healthy tissue.... Plaintiffs alleged that defendant physicians and hospitals treated them and hundreds of Italian nationals using this method. The FSR method was discontinued in late 2003 or early 2004.
Defendants marketed FSR to plaintiffs and the public at large in various ways, including literature, television, radio, in-person seminars and the Internet. Plaintiffs allege that those advertisements contained "misleading, fraudulent, deceitful, and shocking claims, statements, and information.".... Plaintiffs allege they relied on these representations to their detriment and that defendants "preyed upon the plaintiffs' fears and hopes at their most vulnerable time, when stricken with cancer." Plaintiffs were deceived into visiting the United States for FSR treatment based on promises that the procedures would help them. Such representations deprived plaintiffs of the opportunity to seek other necessary care and the FSR treatment caused plaintiffs pain and worsened their medical conditions. Most died shortly after receiving the treatment in a matter of weeks or months.
Gotlin I, 367 F.Supp.2d 349, 352-53 (E.D.N.Y.2005) (Glasser, J.) (internal citations and quotation marks omitted); see also Gotlin II, No. 05 Civ. 1899(ILG), 2006 WL 1154817 (E.D.N.Y. April 28, 2006) (Glasser, J.) ().
In support of these allegations, the plaintiffs have proffered the statement of Salvatore Conte ("Conte") who states that he worked in Italy on behalf of SIUH and at the direction of Lederman to "publicize and promote the Stereotactic Radiosurgery treatment in Italy...." Declaration of Bruce Behrins ("Behrins Decl."), dated Oct. 10, 2008, Ex. B ¶¶ 2-4. Conte promoted the FSR treatment through an internet website, on television programs, in newspaper and magazine articles, and at medical conferences at which Lederman would present prospective patients with the success rates associated with FSR treatment. Id. ¶¶ 6, 8-9, 10. Prospective patients at these conferences were also provided with printed brochures and videocassettes from SIUH that promoted the benefits of FSR treatment. Id. ¶ 12. According to Conte, Lederman "was very determined in receiving the highest number of potential patients as possible," and he instructed Conte "to inform as many patients as possible about the program." Id. ¶ 23. Conte also stated that Lederman was willing to treat any patient no matter how terminally ill he or she was. Id. ¶¶ 23-24. Conte stated that SIUH paid for his office in Naples, Italy, where he would further promote the FSR program to prospective patients, and that SIUH paid him a commission of $1,750, equal to 10% of the $17,500 cost of treatment, for every patient that he referred. Id. ¶¶ 15-18. Conte also asserts that Lederman, Silverman, and Grosman would introduce him and refer to him as a medical doctor and provided him with business cards that identified him as "Salvatore Conte, M.D." despite the fact that he was not a medical doctor. Id. ¶¶ 21-22.
Conte does not suggest, however, that any of the defendants made material misrepresentations about the success rates of the FSR treatment program, about the individual results that patients were told to expect, or that they engaged in other deceptive acts.
The plaintiffs proffer the unsworn expert report of Paul R. Gliedman, M.D., ("Dr. Gliedman") and Louis B. Harrison, M.D., ("Dr. Harrison") in support of the medical malpractice, hospital and medical negligence, and Public Health Law § 2805-d claims. See Behrins Decl., Ex. Y (the "Plaintiffs' Disclosure of Expert Testimony Pursuant to FRCP 26(a)(2)"). In the report, Dr. Gliedman and Dr. Harrison stated that there were deviations from the standard of care in the treatment of 12 of the 20 deceased plaintiffs: Cattai, Caramanna, D'Ambrosio, Roda, Giovannini, Centore, Caberti, Busti, Spirito, Landoni,3 Facchini, and Scurto, see id., but they do not make any statement as to which of the three defendant doctors were responsible for those deviations. In the cases of deceased plaintiffs DiGanci, Deodato, Cervone, Ettore, and Pesci, the plaintiffs' experts expressed their "concerns" or "issues" with the care that was provided but notably did not state that a deviation from the standard of care had occurred. The expert report voiced no criticism of the treatment given deceased plaintiffs Brovelli, Baccichetto, and Cataranelli. See id.
In their depositions, Dr. Gliedman and Dr. Harrison testified that they could not state an opinion with reasonable medical probability as to whether plaintiffs Baccichetto, Brovelli, Busti, Cataranelli, Cervone, D'Ambrosio, Deodato, DiGanci, Ettore, Facchini, Landoni, Pesci, Roda, and Scurto suffered an injury that was proximately caused by the treatment they received at SIUH.4 As to Centore, Lucchi, and Spirito, Dr. Harrison could not testify with reasonable medical probability whether any deviation from the standard of care proximately caused these plaintiffs a shorter life, pain and suffering, or loss of enjoyment of life.5 Dr. Gliedman, however, testified that these plaintiffs were injured in that their time was wasted receiving treatment that was unwarranted given their medical condition.6
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