Patient Sues Dr. Eric Braverman for Fraud
Stephen Barrett, M.D.
Olga Gilmartin, a former patient, is suing Eric R. Braverman, M.D. and his clinic, PATH MEDICAL, on grounds of negligent misrepresentation; deceptive business practices/false advertising; fraudulent inducement and/or concealment; breach of contract; and unjust enrichment. The complaint (shown below) alleges that she was misled and improperly pressured into spending approximately $40,000 for tests and treatments that were inappropriate and produced no benefit, and that a hormone medication for which she paid $10,000 was not received.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PATH MEDICAL PC., and ERIC BRAVERMAN,
Index No.: 161809/13
Plaintiff, OLGA GILMARTIN ("plaintiff') by her attorneys, JEFFREY BENJAMIN, P.C. as and for her complaint against the defendants, alleges as follows:
1. This is an action for damages for inter alia, negligent misrepresentation and/or deceptive business practices and violations of the New York General Business Law Art 22-A, §349 ("Deceptive Practices Act" or GBL §349"), and GBL §350 for false advertising. The action also seeks statutory attorneys' fees and costs pursuant to the statutory violations and GOL §5-327.
2. In summary, by the use of high pressure sales tactics, defendant solicits private alternative treatments and testing for consumers' medical condition(s), to induce consumers to purchase its services in the hopes of curing and/or abating such condition(s). Said services are a "private alternative" to traditional medical treatment for these conditions insofar as they are paid for by the consumer, and not covered by an insurance policy or other such medical payment coverage. Defendants advertise directly and through various media for its alternative medical services. Despite substantial payment for its services, defendant delivers little to no result, and in some instances an adverse result to patients. As a result of defendants' practices, consumers suffer significant monetary.
JURISDICTION AND PARTIES
3. Plaintiff is a natural person over eighteen years of age and maintains a residence in the City of New York, County of Bronx and State of New York.
4. On information and belief, the defendant PATH MEDICAL is a domestic corporation duly chartered to conduct business in New York having a principal place of business at 304 Park Ave S, New York, NY 10010.
5. On information and belief, the defendant ERIC BRAVERMAN, M.D. is a natural person over eighteen years of age and has a principal place of business at 304 Park Ave S, New York, NY 10010.
STATEMENT OF FACTS
6. On or about November 1, 2010, heard defendants' advertisement on the radio in which they solicited medical services that would "reverse osteoporosis, diabetes and other medical conditions." Defendant advertises itself with the acronym of "PATH" which stands for "Place for Achieving Total Health."
7. On or about November 1, 2010, plaintiff contacted defendant's business by telephone to learn about the services defendant offered for plaintiff s medical conditions. After speaking with defendants' representative Susan Scali, plaintiff paid $1,000 to defendants that day to make an initial appointment.
8. Ms. Scali solicited plaintiff for defendants' "Executive Health Program." The Program allegedly consisted of a "comprehensive medical examination from head to toe" i.e. an EKG, Bone Density and Chiropractic, and blood test. Defendant's representative stated that the fee for the service was $12,500 plus $3,000 for blood test
9. Plaintiff went to a first appointment on November 3, 2010. She was told to get dressed to be ready for testing. Upon the examination, five different alleged medical professionals entered the room, including defendants' billing person named "Doreen." These five people began to bombard plaintiff with a barrage of questions, and required the signing of numerous documents while being examined and while under medication. After the initial examination, a physician assistant immediately administered plaintiff a shot of "Proloxin." At that point, the billing representative Doreen, presented plaintiff with papers which required plaintiff to immediately pay $8,000 through her credit card. The representatives gave plaintiff no time to read the papers before signing them. Defendants then required plaintiff to write out two checks: $11,000, and $2,352.12 allegedly for blood test.
10. On information and belief, defendants' representatives filled out false and/or inaccurate information on plaintiff's initial documentation, before requiring plaintiff to sign the veracity of same.
11. Without explaining what it was or the need for it, defendant next administered to plaintiff something they called a "Beem test" or Brain Electrical test. It was a very uncomfortable and caused great pain to plaintiff s head. The test lasted for almost 1 hour and a half. After that, defendant then administered an ultrasound to plaintiff.
12. It was not until approximately 9:00 p.m. that defendants finished testing. At approximately 3:00 a.m. plaintiff began to have side effects of the Proloxin that defendant administered the day before. Plaintiff could not eat, had limitations in her legs, and dizziness. That morning, defendants sent a representative to plaintiff's house to administer a shot of Benadryl.
13. On or around November 11, 2010, defendant again administered an ultrasound; and on November 24, 2010, defendant sent plaintiff to a Medical Imaging Center for a PET scan of the Body and Brain without explaining the need for same.
14. After seeing the physician's assistant at that facility, plaintiff was prescribed a medication she was told was for hypertension. Plaintiff became extremely ill from that medication and was advised by her pharmacist to stop taking it right away.
15. The following day, defendant Dr. Braverman stated that he was going to start plaintiff on another treatment program with "All Natural and beta blockers." Plaintiff was told by Dr. Braverman that he recommended this new program on the advice of an osteopathic doctor.
16. All throughout her experience with defendant and his facility, plaintiff asked numerous times for an itemized bill to which defendant continually refused. Plaintiff also continually asked a physician's assistant in charge for the details of her "Executive Program" but was also refused and she was simply referred to billing.
17. In addition, defendants' staff nutritionist prescribed numerous nutritional supplements to plaintiff which persistently made her ill. At no time, was the "Program" that defendants had plaintiff on and for which they charged her, nor its alleged necessity, ever explained to plaintiff.
18. On December 9, 2010, defendants insisted plaintiff endure a "Striped Testing Abstract" measure and "MMSE" both of which they charged a significant additional fee.
19. On that day, defendants prescribed plaintiff a course of "hormone therapy." Defendants required a payment that day of $10,000 for "Fortea Hormone (Percathyroid)" though she never received the product. Defendants' representative solicited plaintiff for this treatment by showing her a pen with a needle. When plaintiff stated she could not do this unexplained treatment, defendants' billing representative Doreen indicated that she did it herself and it was "nothing to worry about."
20. From her first appointment to her last, plaintiff paid approximately $40,000 for defendants' services.
21. On information and belief, defendants' services were not medically necessary, or otherwise not appropriate for plaintiff's physical condition.
AS AND FOR A FIRST CAUSE OF ACTION
22. Defendants made numerous representations as to the necessity or effectiveness of its alternative medical treatments to plaintiff. Upon making said representations, defendants were negligent, careless, reckless and/or should have known that such representations were false or misleading at the time they were made.
23. Defendant breached their duty of ordinary care in their position vis a vis plaintiff as a medical treatment provider.
24. As a proximate result of defendants' negligence, plaintiff was caused to sustain significant money damages.
25. The damages sustained by plaintiff were occasioned, through and by reason of the carelessness, recklessness, and negligence of the defendants.
AS AND FOR A SECOND CAUSE OF ACTION
Deceptive Business Practices/False Advertising - Damages
26. Plaintiff repeats and realleges each and every allegation above and incorporate same herein.
27. This Cause of Action is asserted against defendants that plaintiff suffered damages as a result of the defendant's deceptive business practices in violation of GBL §349 and §350.
28. In the course of the within transaction, defendants committed and/or engaged in one or more of the following acts or conduct and/or made the following misrepresentations:
- misrepresenting in advertising and in person that defendants were competent in the treatment of the particular medical condition from which plaintiff suffered;
- misrepresenting in advertising that defendants were able to cure or significantly abate diseases from which plaintiff suffered;
- failing or refusing to produce a description of alleged medical treatments and their necessity to plaintiff despite multiple requests;
- failing or refusing to produce an itemization of the billing it was rendering to plaintiff;
- falsely promising a successful result, when no result or an adverse result actually ensued;
- billing plaintiff and accepting payments for medical services that were either medically unnecessary or that were inappropriate for plaintiff.
29. All of the above misrepresentations, acts and/or conduct by defendants involved material elements of the transaction between the parties and were unfair, illegal, false, deceptive and/or misleading.
30. Additionally, such representations were likely to, and in fact did, harm, deceive or mislead the plaintiff who was acting reasonably.
31. The conduct and actions described herein are directed at the general public and have a broad impact on consumers at large and are not isolated or unique to this transaction between the parties.
32. The aforementioned conduct constitutes deceptive business practices, in violation of General Business Law Art. 22-A, §349 and §350.
33. As a result of the defendant's breach, plaintiff has sustained damages for which she is entitled to recover from defendants.
34. The plaintiff is entitled to recover costs and attorney's fees from the defendant pursuant to GBL §349(h), §350-e(3) and GOL §5-327.
AS AND FOR AN THIRD CAUSE OF ACTION
Fraudulent Inducement and/or Concealment
35. Plaintiff repeats and realleges each and every allegation above and incorporate same herein.
36. This Cause of Action is asserted against defendants for actual, compensatory and punitive damages based upon common law fraud and/or fraud in the inducement and/or concealment.
37. The conduct referred to above constitute numerous intentional misrepresentations, concealments and/or omissions of fact by defendants through its representatives, and other authorized representatives or principals of defendants.
38. The misstatements, concealments and/or omissions as to the necessity or effectiveness of defendants' services and the likelihood of success were material to the transactions.
39. On information and belief, the representatives of defendants made the above described misrepresentations, concealments and/or omissions of material fact with full knowledge of their falsity and/or with reckless disregard of the truth.
40. On information and belief, representatives at defendants intended that the plaintiff rely upon the aforementioned misrepresentations, concealments and/or omissions to induce to retain their medical services.
41. Plaintiff reasonably relied on defendants' intentional misrepresentations, concealments or omissions inducing her to retain their medical services to her detriment.
42. As a result of the defendants' conduct, plaintiff was injured for which she is entitled to recover actual, compensatory and punitive damages from defendants.
43. On information and belief, the above mentioned acts were committed by defendants willfully, wantonly and with reckless disregard of the rights of the plaintiff.
AS AND FOR A FOURTH CAUSE OF ACTION
Breach of Contract
44. Plaintiff repeats and realleges each and every allegation above and incorporate same herein.
45. The parties entered into a written Contract for the provision of defendants' private alternative medical services.
46. Consideration was paid by plaintiff in the amounts called for under the Contract.
47. Defendant breached the Contract between the parties by refusing and/or failing to perform thereon.
48. Plaintiff has suffered actual and compensatory damages as a result of defendants' breach.
AS AND FOR A FIFTH CAUSE OF ACTION
49. Plaintiff repeats and realleges each and every allegation above and incorporate same herein.
50. This Cause of Action is asserted for restitution of plaintiff funds based upon common law unjust enrichment.
51. Plaintiff conferred full payment of defendants' price upon defendants.
52. By unjustly retaining all of plaintiff's funds, defendants were unjustly enriched.
53. Defendant continues to retain the benefit of plaintiff's money.
WHEREFORE, plaintiff's demand judgment against the defendants, for actual and punitive damages as follows:
(a) Actual damages for plaintiff in an amount to be determined at trial in excess of the Court's ad damnum jurisdiction;
(b) Punitive damages based on defendant's knowing and willful misrepresentations in violation of statutory causes of action and based upon plaintiff's fraud claims;
(c) Interest, costs, disbursements and attorneys' fees pursuant to statutory causes of action;
(d) Such other relief as the court may deem just.
Dated: Forest Hills, New York
November 21, 2014
JEFFREY BENJAMIN, P.C.
By: Jeffrey Benjamin, Esq.
Attorney for Plaintiff
118-21 Queens Blvd., Suite 501
Forest Hills, NY 11375
This article was posted on February 9, 2015.