In a pending New York medical malpractice lawsuit, the New York Supreme Court (trial court) determined that the defendant physician is subject to the plaintiff’s consumer fraud claim. The trial judge stated in her decision, “Here, accepting all allegations of Plaintiff’s papers as true and affording her the benefit of every possible favorable inference, Plaintiff has stated a claim for GBL § 349. The Amended Verified Complaint sufficiently pleads the three elements of GBL § 349: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.”
In her New York medical malpractice lawsuit that alleged causes of action for medical malpractice, negligence, lack of informed consent, fraud, and vicarious liability, the plaintiff alleged that on April 19, 2017, the defendant, Dr. Newman, treated her multiple sclerosis with Zinbryta, a drug manufactured by Biogen. The plaintiff alleged that she was not an appropriate candidate for Zinbryta because she already responded well to two other drugs, Rebif and Gilenya. The plaintiff further alleged that Dr. Newman treated with Zinbryta not because it was a medically indicated treatment but because he received payments from Biogen. The plaintiff asserted that as a result of using Zinbryta, she suffered a relapse of her multiple sclerosis, loss of hair, weakness, rashes, dizziness, and lower extremity pain.
General Business Law (“GBL”) § 349
General Business Law § 349 provides that deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in New York are unlawful. A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. Whether a representation or an omission, the deceptive practice must be likely to mislead a reasonable consumer acting reasonably under the circumstances. A deceptive practice, however, need not reach the level of common-law fraud to be actionable under section 349. In addition, a plaintiff must prove ‘actual’ injury to recover under the statute, though not necessarily pecuniary harm. Reliance is not an element of a section 349 claim. The plaintiff, however, must show that the defendant’s ‘material deceptive act’ caused the injury.
The New York Supreme Court trial judge stated, “Plaintiff pleads that Dr. Newman’s deceptive business practices resulted in permanent physical injuries, including relapse of her multiple sclerosis, loss of hair, weakness, rashes, dizziness, and lower extremity pain. Plaintiff pleads that had she known of the risks associated with using Zinbryta, Plaintiff would have not subjected herself to a risky treatment option.” The New York Supreme Court therefore ordered “that Defendants Stephen Newman, M.D., Island Neurological Associates, P.C., and Prohealth Care Associates, LLP’s motion (Motion Sequence 1) is denied.”
Source Hill v. Newman, Index No. 805119/2019.
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