New Jersey squelches lawsuit for advertising fraud

In the Courts. By Tanya Albert, AMNews staff. March 8, 2004.

New Jersey's Supreme Court has helped physicians dodge a bullet that could have been used as ammunition by lawyers looking for a new way to sue them.

The source of potential problems is an unlikely one -- advertising.

Buying print ads or putting together a radio spot wasn't something most physicians did 20 or 30 years ago.

But it's more commonplace today, and two New Jersey patients tried to take their physician to court over the ads he ran for LASIK surgery.

Patients Joseph Macedo and Rosemary Lesky said ads led them to believe that Joseph Dello Russo, MD, would do their eye surgery and provide all of the follow-up care they received. Instead, the patients said a physician who was not fully licensed provided their follow-up care, something that is medically acceptable.

Indeed, the patients didn't claim that their care had fallen below medical standards. They didn't claim that they had sustained any physical injuries because Dr. Dello Russo had not provided the follow-up care.

They didn't make any traditional medical malpractice claims.

Instead, they claimed that Dr. Dello Russo made false or misleading statements in his ads that led patients to believe that he would provide all of their treatment. They said that's why they chose him.

Macedo and Lesky sued Dr. Dello Russo under the New Jersey Consumer Fraud Act, an area of law from which physicians traditionally have been exempt.

They claimed that they had sustained mental anguish, loss of enjoyment of life, medical bills and economic damages because they believed that they would be treated "by properly licensed doctors with no limitations on their licenses," but were not.