Verdicts

Fraud and RICO Claims Were Too Much of a Stretch

The district court properly dismissed claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. ' 1961 et seq.) and the common law, as the injuries complained of were identical to those alleged in medical malpractice claims and were not to property, but were personal. Gotlin v. Lederamn, 2012 U.S. App. LEXIS 8790 (5/1/12). The administrator of the estate of Guiseppa Caramanna Bono, along with the deceased's husband and several other similarly situated survivors of other deceased persons, sued the defendants (including several doctors and hospitals) under the common law theory of fraudulent misrepresentation, as well as for medical malpractice and for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. ' 1961 et seq.). They claimed the defendants lied about the efficacy of the cancer treatment known as Fractionated Stereotactic Radiosurgery (FSR), and that these misrepresentations unlawfully induced the decedents to undergo a radiation therapy that was both ineffective and harmful. The district court dismissed the fraud and RICO claims.

The appeals court affirmed after finding that, under New York law, a plaintiff may not assert separate causes of action for fraud and medical malpractice unless “the damages sustained as a result of the fraud are distinct from the damages sustained as a result of the malpractice.” Giannetto v. Knee, 82 AD3d 1043 (N.Y. App. Div. 2011). Here, the alleged medical malpractice injuries were the same injuries complained of in the fraud claim. Thus, dismissal was proper.

As for the RICO claims, the court observed that a “plaintiff only has standing [to bring a civil action under RICO] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). Injuries that are “personal in nature” do not constitute an injury to a “business or property,” as those terms are used in RICO. Laborers Local 17 Health Benefit Fund v. Philip Morris Inc., 191 F.3d 229 (2d. Cir. 1999). Here, although the plaintiffs' RICO-based claims alleged only damages in the amount they paid the defendants for their FSR treatments, their monetary losses were only incidental to their alleged personal injuries. Thus, those losses could not serve as the requisite injuries to “property” required under RICO.

Expert's Lecture on Med-Mal Woes Leads to Mistrial

The Supreme Court of Connecticut affirmed an intermediate appeals court's ruling that a trial court abused its discretion by giving no curative instruction to counter the testimony of a defense expert that claimed doctors are forced by overzealous medical malpractice plaintiffs to conduct more medical tests than are actually required to meet the standard of care. Pin v. Kramer, 304 Conn. 674 (5/8/12).

Plaintiffs brought suit for medical malpractice against a doctor who they contended negligently injured a patient when surgically treating a spinal tumor. At trial, a major issue was whether the defendant doctor should have ordered additional diagnostic tests. One of the defendant's medical experts, an orthopedic surgeon, testified that the number and type of tests conducted met the standard of care, yet he acknowledged that, had he been the physician, he would have ordered additional tests. When asked why, he explained that he worked in a teaching institution, where it is helpful for those learning the medical profession to read and analyze many tests. In addition, he stated, “I live in the worst malpractice community in the world. And ' we practice a lot of defensive medicine. It's true. It's unfortunate, but it's true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can't get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that's just a fact. And so we get acclimated to practicing like that.”

Plaintiffs moved for a mistrial, or for a curative instruction. The trial court denied the plaintiffs' requests, deeming the discussion of insurance was more prejudicial to the defendants than to the plaintiffs. In addition, the trial court stated that “considering the length and expense of the trial, it would be unjust to grant the motion for a mistrial.” The jury found for the defendant.

The plaintiffs appealed to an intermediate appeals court, arguing that the trial court abused its discretion by failing to issue a curative instruction or declare a mistrial. That court concluded that the trial court's “failure to issue a curative instruction in the face of [the defense expert's] inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury's deliberations. Although the improper statements by [the defense expert] were not pervasive, they introduced a highly controversial and legally improper issue into the case.” Finding that these statements were prejudicial to the plaintiffs, that intermediate appellate court reversed and remanded for a new trial. This ruling prompted the defense to bring this appeal.

The Supreme Court of Connecticut was so impressed with the appeals court's analysis and written opinion that it not only affirmed its decision, but gave no further explanation, stating, “Because [the appeals court's] opinion fully addresses all arguments raised in this appeal, we adopt it as a proper statement of the issue and the applicable law concerning that issue. It would serve no useful purpose for us to repeat the discussion contained therein.”

Fraud and RICO Claims Were Too Much of a Stretch

The district court properly dismissed claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. ' 1961 et seq.) and the common law, as the injuries complained of were identical to those alleged in medical malpractice claims and were not to property, but were personal. Gotlin v. Lederamn, 2012 U.S. App. LEXIS 8790 (5/1/12). The administrator of the estate of Guiseppa Caramanna Bono, along with the deceased's husband and several other similarly situated survivors of other deceased persons, sued the defendants (including several doctors and hospitals) under the common law theory of fraudulent misrepresentation, as well as for medical malpractice and for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. ' 1961 et seq.). They claimed the defendants lied about the efficacy of the cancer treatment known as Fractionated Stereotactic Radiosurgery (FSR), and that these misrepresentations unlawfully induced the decedents to undergo a radiation therapy that was both ineffective and harmful. The district court dismissed the fraud and RICO claims.

The appeals court affirmed after finding that, under New York law, a plaintiff may not assert separate causes of action for fraud and medical malpractice unless “the damages sustained as a result of the fraud are distinct from the damages sustained as a result of the malpractice.” Giannetto v. Knee , 82 AD3d 1043 (N.Y. App. Div. 2011). Here, the alleged medical malpractice injuries were the same injuries complained of in the fraud claim. Thus, dismissal was proper.

As for the RICO claims, the court observed that a “plaintiff only has standing [to bring a civil action under RICO] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima S.P.R.L. v. Imrex Co. , 473 U.S. 479 (1985). Injuries that are “personal in nature” do not constitute an injury to a “business or property,” as those terms are used in RICO. Laborers Local 17 Health Benefit Fund v. Philip Morris Inc. , 191 F.3d 229 (2d. Cir. 1999). Here, although the plaintiffs' RICO-based claims alleged only damages in the amount they paid the defendants for their FSR treatments, their monetary losses were only incidental to their alleged personal injuries. Thus, those losses could not serve as the requisite injuries to “property” required under RICO.

Expert's Lecture on Med-Mal Woes Leads to Mistrial

The Supreme Court of Connecticut affirmed an intermediate appeals court's ruling that a trial court abused its discretion by giving no curative instruction to counter the testimony of a defense expert that claimed doctors are forced by overzealous medical malpractice plaintiffs to conduct more medical tests than are actually required to meet the standard of care. Pin v. Kramer , 304 Conn. 674 (5/8/12).

Plaintiffs brought suit for medical malpractice against a doctor who they contended negligently injured a patient when surgically treating a spinal tumor. At trial, a major issue was whether the defendant doctor should have ordered additional diagnostic tests. One of the defendant's medical experts, an orthopedic surgeon, testified that the number and type of tests conducted met the standard of care, yet he acknowledged that, had he been the physician, he would have ordered additional tests. When asked why, he explained that he worked in a teaching institution, where it is helpful for those learning the medical profession to read and analyze many tests. In addition, he stated, “I live in the worst malpractice community in the world. And ' we practice a lot of defensive medicine. It's true. It's unfortunate, but it's true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can't get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that's just a fact. And so we get acclimated to practicing like that.”

Plaintiffs moved for a mistrial, or for a curative instruction. The trial court denied the plaintiffs' requests, deeming the discussion of insurance was more prejudicial to the defendants than to the plaintiffs. In addition, the trial court stated that “considering the length and expense of the trial, it would be unjust to grant the motion for a mistrial.” The jury found for the defendant.

The plaintiffs appealed to an intermediate appeals court, arguing that the trial court abused its discretion by failing to issue a curative instruction or declare a mistrial. That court concluded that the trial court's “failure to issue a curative instruction in the face of [the defense expert's] inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury's deliberations. Although the improper statements by [the defense expert] were not pervasive, they introduced a highly controversial and legally improper issue into the case.” Finding that these statements were prejudicial to the plaintiffs, that intermediate appellate court reversed and remanded for a new trial. This ruling prompted the defense to bring this appeal.

The Supreme Court of Connecticut was so impressed with the appeals court's analysis and written opinion that it not only affirmed its decision, but gave no further explanation, stating, “Because [the appeals court's] opinion fully addresses all arguments raised in this appeal, we adopt it as a proper statement of the issue and the applicable law concerning that issue. It would serve no useful purpose for us to repeat the discussion contained therein.”