The Law Office of John P. Gianfortune, P.C., is currently
handling multiple lawsuits against the doctors, personnel and
corporations formally doing business under the name Long Island
Medical Associates or LIMA. The named defendants are Gary
Hitzig, M.D., Seymour Handler, M.D., John Schwinning, M.D.,
Louis Amico, and Hitzig, Handler & Schwinning, M.D., P.C.,
formally known as Gary Hitzig and Seymour Handler, P.C.,
d/b/a Long Island Medical Associates. As discussed below,
the actions now also include claims against a successor entity,
the Hitzig-Schwinning Medical Group, LLC.
The Allegations
Bankruptcy of the Corporate Defendant
The Lawsuits
Abrams v. Hitzig
Abbondandolo v. Hitzig
Bollino v. Hitzig
Mitchell v. Handler
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Conclusion
Contact The Law Office of John P. Gianfortune, P.C.
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The
Allegations
We now represent approximately 100 individual victims, both male
and female, in claims of alleged fraud, medical malpractice,
breach of contract and punitive damages. The various
complaints set forth two counts of fraud to seek redress for an
intentional, deceptive scheme to induce the plaintiffs to
undergo the first procedure, and then be locked into a continuing
cycle requiring more and more procedures for additional monies.
These claims are for fraud in the inducement, both in inducing the
first surgery, and the continuing fraud of inducing further
surgery. The plaintiffs also allege malpractice in as much
as the performance of the procedures departed from accepted
standards of care. Breach of contract claims are levied
because the plaintiffs did not receive the specific, bargained for
results promised by the defendants. Punitive damages are
asserted for the claims that defendants abrogated their roles as
physicians to un-licensed technicians, i.e., not supervising and indeed
leaving the room when critical aspects of the procedures were performed.
These claims have been amended to include violations of N.Y.'s
statutes against deceptive and false advertising,
General Business Law § 349 and
General Business Law § 350
. In
Karlin
v. IVF America
, in May of 1999, N.Y.'s highest court, the Court of Appeals, ruled
that medical malpractice claims are not mutually exclusive with
claims that these statutes were violated, and that doctors are
also subject to laws that protect the public from deceptive practices.
As discussed below, the LIMA doctors have unsuccessfully challenged the
applicability of these statutes to their advertising. Three separate
judges have ruled these claims can stand and should go to trial.
Limited punitive damages are statutorily available for these claims
as well.
This post is intended to keep our clients and those interested
abreast of these litigations. Our law office will make every
attempt to keep this page as current as possible whenever
anything of significance happens on this matter.
Of course, if anyone needs more information and would like to
speak directly to the law firm, please contact us toll-free at
1-800-579-4529 or e-mail us at
JohnG@InjuryAssist.com.
Bankruptcy of the Corporate Defendant
Shortly after the filing of the third action listed below,
the corporate defendant, Hitzig, Handler & Schwinning, M.D., P.C.,
filed for bankruptcy protection under Chapter 7 of the United
States Bankruptcy Code. This filing was done in United
States Bankruptcy Court, Southern District of New York, and
assigned case number 98-B-43280 (JHG). By operation of
Federal Law, this filing immediate produced an automatic stay
on the pending State Court actions. Legally, a "stay"
is a time-out; all proceedings against them were halted until
the stay was lifted.
The defendants (with the exception of Dr. Handler) then formed
a new entity known as the Hitzig-Schwinning Medical Group, LLC.
This new entity successfully applied to the Bankruptcy Court to
purchase the assets of the old LIMA corporation, Hitzig, Handler &
Schwinning, P.C. The new entity uses the same personnel,
locations, equipment and toll-free telephone numbers of LIMA.
The new entity continues to use the LIMA mailing lists and
web-sites. Many of our clients have reported that they have
received advertisements from the new entity. All plaintiffs are
advised to maintain these documents as they can be important proof
that the defendants are continuing business as usual.
In all the actions, plaintiffs' complaints were amended to
include claims the Hitzig-Schwinning Medical Group, LLC, is a
successor entity and therefore liable for the actions of LIMA.
The defendants challenged these claims and sought to have all actions
against the LLC dismissed. They were unsuccessful. The
decisions of Judge Sklar in Abrams and the 12/13/00 decision
by Judge Phelan in
Mitchell both held that plaintiffs
raised questions of fact as to whether there was a de facto
merger of the two entities, to escape liability in these cases.
Upon plaintiffs' application, the bankruptcy stay
was lifted on February 26, 1999. The order
lifting the stay grants all plaintiffs the right
to pursue the available insurance of the
defendant corporation. It is important to
note that the bankruptcy filing, the stay, and
lifting the stay, and any pending discharge of
the corporate defendant, have no effect on the
direct actions brought against the doctors as
individuals. They remain personally
responsible for any injuries and/or damages
plaintiffs prove they caused. Insurance
coverage was and is available for all viable
malpractice claims. Fraud claims were never
insured as intentional acts are not covered
events, hence the importance of maintaining the actions against
the successor entity, the LLC.
The
Lawsuits
1.
Abrams, et al. v. Hitzig et al.
Court's Index No: 113806/97
Our File No: 2781
The first action brought by this office originally had 22
plaintiffs. It was not considered a class action, but
a multi-plaintiff litigation. The action was assigned to
the Honorable Stanley L. Sklar, Justice of the Supreme Court,
in the Supreme Court, State of New York, New York County.
The defendants in this action successfully brought a motion to
sever the claims. The motion was granted in part, and a signed copy of
the order will shortly appear on this web-page. In short,
Judge Sklar felt it would be too prejudicial to the defendants
to bring the actions together. The defendants also sought to
dismiss other aspects of the claims against them. The Court
dismissed the fraud causes of action, holding that these claims
were subsumed by the medical malpractice claims. However,
the claims of false advertising and deceptive acts under the
General Business Law were permitted. The Court allowed the
remaining 21 plaintiffs to bring another action. The Court
specifically did not make any determination as to any other
aspect of the claims brought by the severed 21 plaintiffs,
holding that once it severed the claims, the other issues were moot.
As for the remaining "21," a single action was brought in Nassau
County for these plaintiffs, entitled Bellera v. Handler,
Index Number 2724/2000. The transferred matter was assigned
to the same judge that presided over the Mitchell
case, Judge Phelan. That Court then
granted the defendants' application to sever these 21 into
individual actions. Despite what this office believed was
language that permitted the joining of the 21 in Judge Sklar's
order, Judge Phelan felt he was bound by the decision of Judge
Sklar to again keep the actions separate. You can review this
decision at the New York Law Journal site -
Judge Phelan's decision in Bellera v. Handler, 9/15/2000.
Our office is drafting separate complaints for each of the 21
and will file them in Nassau County by mid February, 2001.
If you are a claimant in this action,
please contact the office immediately.
The LIMA defendants then again tried to have the claims against
them dismissed, seeking
summary judgment.
However, Judge Sklar denied this and
permitted all claims with the exception of granting the
application to dismiss the claim of negligent misrepresentation.
Importantly, the Court again ordered that the claims of violating
N.Y.'s statutes against deceptive and false advertising,
General Business Law § 349 and
General Business Law § 350 should proceed. The Court also
decided that the claims for breach of contract based upon the representations
in the advertising should proceed, and that plaintiffs have demonstrated facts
indicating the LLC is a successor entity of LIMA and thereby potentially
liable for LIMA's obligations to plaintiffs. This important decision
can be viewed through the following link -
Judge Sklar's decision denying summary judgment to defendants.
2.
Abbondandolo, et al. v. Hitzig, et al.
Court's Index No: 124201/97
Our File No: 2847-B
The second action against the LIMA defendants has 65 plaintiffs.
The action was assigned to the Hon. Karla Moskowitz, J.S.C., Part 26,
Justice of the Supreme Court, in the Supreme Court, State of
New York, New York County.
The
defendants in this action made a similar motion
to the one in Abrams v.
Hitzig, to sever the
claims. Their application was granted and plaintiffs
have taken an appeal of the decision to the Appellate Division,
First Department, which is pending. The worst case
scenario is that the Appellate Court upholds the decision to keep
the actions separate. However, in light of the promising decisions
in Nassau County in the Mitchell
case, and the relative speed in which the cases have progressed there,
this office does not consider this a set back and it may even
be an advantage.
3.
Bollino v. Hitzig et al.
Court's Index No: Nassau County Supreme Court
- 22913-99
Our File No: 2847-084-C
The third action commenced against the LIMA
defendants was also assigned to The Hon. Karla
Moskowitz, J.S.C., Supreme Court, New York
County.
Judge Moskowitz has ordered that this action be
transferred to Nassau County. On September 10,
1999, it was so transferred and then assigned a
new index number for Nassau County, which is
22913/99.
This case was assigned to Judge Phelan, who
presided over the Mitchell
case (see below). Dr. Handler's deposition was held February 18,
2000, and was used successfully in the motion practice described
herein .
This case should be the next one set for trial in the Spring or
Summer of 2001.
4.
Mitchell v. Seymour Handler, M.D., Gary Hitzig,
M.D., John Schwinning, M.D. and Hitzig-Schwinning
Medical Group, LLC, as successor entity to
Hitzig, Handler & Schwinning, M.D., P.C.
Court Index
No: 007031/99
Our File No:2847-050-D
The Mitchell case moved the fastest of
all the litigation. This was in great part due to
the fortuitous assignment of the Hon. Thomas P.
Phelan, J.S.C., as the presiding judge for the discovery phase
of the litigation. The Note of Issue was filed in the
matter and we are awaiting a trial date, hopefully in the Spring,
2001.
The defendants unsuccessfully tried to have a majority of the
plaintiff's claims dismissed by seeking summary judgment.
The Court denied these motions in several decisions which are
posted here. These decision can have a binding effect on
the defendants in the other actions under a legal doctrine known as issue preclusion
or Collateral Estoppel. However,
it must be noted that LIMA has appealed and that is still pending.
You will need Adobe Acrobat Reader to view these documents.
It's free to download this program if you do not have it
installed already. Just click on the link at the bottom
of this page and follow the instructions to install.
This Court kept a close watch on all
discovery and did not permit the defendants to
get away with any delay tactics in the exchange
of documents and videotape material. Despite the defendants'
attempts to avoid exchanging certain
material, we were able to secure most everything needed.
The depositions of the defendants taken in this case have been
successfully used to defeat motions brought by LIMA in this and
the other actions.
Of course, the other items exchanged in this litigation
will be available in all cases.
Conclusion
While
preliminary settlement discussions were held,
nothing promising resulted. This office is
preparing each case for trial. We do not
anticipate that the defendants will make a
reasonable offer anytime soon.
I trust this information will be useful not only
to my clients, but all those interested in
actions against LIMA and hair transplant
physicians. Our office will make every
endeavor to keep this page updated with the
most current information.
Dated: January 31, 2001
Rockville Centre, New York
John P. Gianfortune, Esq.
JohnG@InjuryAssist.com
1-800-579-4529
