The decision issued Monday overturns a ruling made in March 2003 by a state appellate court. It throws out a class-action lawsuit filed against Dr. Joseph Dello Russo, an eye surgeon who widely advertises his LASIK surgery to improve vision.
The suit focused on claims by two patients who said Dello Russo led them to believe he would perform their surgery and follow-up care.
However, the follow-up care was provided by William T. Kellogg, a doctor whose license had been revoked by the New Jersey State Board of Medical Examiners. Dello Russo has said Kellogg was not acting as a doctor but was simply providing care similar to what a nurse would provide.
The appellate court panel had said the suit could go forward under the state's 40-year-old Consumer Fraud Act, but the justices rejected that ruling by a 6-0 vote.
They noted that neither patient said their treatment fell below medical standards or caused them injury.
The decision also noted that the state Consumer Fraud Act has never applied to "learned professionals" because they were not permitted to advertise at the time the law was enacted.
Dello Russo's lawyer, Steven I. Kern, praised the ruling, saying a different decision would have represented a "very, very dramatic" shift in the law. Kern noted that physicians who run misleading advertisements are subject to discipline by the state Board of Medical Examiners.
But Bruce Nagel, the lawyer for the patients, called the ruling is a loss for consumers.
"If a car dealer does a bait-and-switch, you can sue, but if Dr. Dello Russo advertises that he is going to treat patients and he has an unlicensed doctor do it, the court says you cannot sue Dr. Dello Russo," Nagel said. "I think there is an illogic there."
http://ap.tbo.com/ap/breaking/MGA52XY38QD.html
Posted by Admin at February 3, 2004 02:23 AM