This month we look at an interesting and unusual case where a New York court was asked to decide whether a plaintiff can sue a physician for statutory fraud in the context of deceptive business practices under a New York State General Business Law.
The plaintiff in the case, Ms P, was a female patient who was being treated by a neurologist, Dr N, for multiple sclerosis. She had been treated fairly successfully with 2 medications when Dr N decided to change her medication regimen, switching her to another medication. According to the plaintiff, Dr N did not explain to her why he was changing her prescription, nor did he warn her of risks from the new medication. After taking it, Ms P reported suffering loss of hair, weakness, rashes, dizziness, lower extremity pain, and a relapse of her multiple sclerosis.
She hired a plaintiff’s attorney and sued Dr N for medical malpractice. A few weeks later, she got a call from her attorney.
The attorney informed Ms P that during discovery some interesting information had been uncovered. It turned out that the physician was being paid by the manufacturer of the medication that had harmed Ms P. While this is not an uncommon practice, the discovery revealed that Dr N had been accepting payments from the manufacturer that totaled over 30 times the national average for specialists in Dr N’s field.
Ms P questioned whether she might have been switched to that particular medication because of the payments, and the attorney agreed that it was certainly a possibility. After considering the issue, the attorney told Ms P that he thought they would be able to sue the physician for something more than just medical malpractice.
The attorney filed an additional complaint against Dr N, suing him for fraud under NY’s General Business Law 349, which provides that “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” The complaint against Dr N alleged that he was accepting payments from the drug manufacturer totaling over 30 times the national average for his field as part of a joint sales and marketing effort that influenced his treatment decisions.
The complaint also noted that Dr N had authored numerous studies for the manufacturer and distributor of the medication for which he was paid, and he did not disclose this to the plaintiff or the public. The plaintiff alleged that had she known the risks of the medication she would not have subjected herself to that treatment option.
When Dr N received word that he was being sued for fraud as well as medical malpractice he called his defense attorney in a panic.
The defense attorney reassured Dr N that he had never seen a case like this, and he was sure it would be dismissed. The attorney noted that generally fraud cases against medical providers are dismissed as not separate and distinct from the medical malpractice claims. He pointed out that the plaintiff would have to prove that it was ‘consumer-oriented’ and that the act was misleading. The attorney did not believe that Ms P could prove the necessary elements of fraud. He told the doctor that he would file a motion to dismiss the case and argue it in court.