Legal Briefs: Fraud Claim Against a Neurologist

A New York Supreme Court recently ruled that a plaintiff could assert a statutory fraud claim in the context of deceptive business practices under NY General Business Law in conjunction with a medical malpractice claim against her neurologist.

The Case

The plaintiff alleged that the physician, who was being paid by a drug manufacturer, unnecessarily and negligently prescribed daclizumab to treat her multiple sclerosis, even though she was not a candidate for the drug. The plaintiff alleged that she suffered permanent injuries as a result of taking the unindicated medication. The physician moved to dismiss the fraud claim.

The Decision

The court held that the NY General Business Law requires plaintiff to show 3 elements: 1) the act or practice was consumer-oriented; 2) that it was misleading in a material way; and 3) that the plaintiff suffered injury as a result of the deceptive act.

The court held that plaintiff had sufficiently met the 3 required elements. Specifically, the court held that the defendant neurologist was accepting huge payments from the drug manufacturer as part of the “joint sales and marketing efforts that influenced his treatment decisions.”

The court noted that the neurologist had authored multiple studies funded by the manufacturer and failed to disclose those payments to the plaintiff and the public in general who would rely on his studies. And finally, the court agreed that the physician’s deceptive business practices resulted in permanent physical injuries and had plaintiff understood the risks, she would not have subjected herself to such a risky treatment option.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.