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Federal Court Finds Valid Claim Against Physician Pursuant to Unfair Trade Practices Act and Consumer Protection Law

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In an opinion issued on April 18, 2012, District Judge Arthur J. Schwab of the United States District Court of the Western District of Pennsylvania ruled that a plaintiff’s claim under Pennsylvania’s Unfair Trade Practices Act and Consumer Protection Law (UTPCPL) was sufficiently pled to withstand defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

The underlying case, Schiff v. Hurwitz, M.D., et al., involved a patient plaintiff who underwent plastic surgery at the hands of the defendant physician who maintained an office in Pittsburgh, Pennsylvania. During the initial consultation with plaintiff on April 23, 2009, defendant planned that the forthcoming surgery would be performed in two stages consisting of a “tummy tuck” and a lower body lift, respectively. However, at this time, according to plaintiff’s complaint, defendant did not discuss or document the potential risk of the device to be used in these procedures: a Radio Frequency Assisted Lipolysis (RFAL).

Almost one year later, on March 2, 2010, plaintiff presented to defendant again for placement of pre-operative markings. Again however, plaintiff alleged that the specific risks of the procedure were not discussed. The following day, defendant performed the first stage of the procedure using the RFAL device. Notably, while plaintiff was presented with an informed consent document prior to the procedure, plaintiff averred that this form was not reviewed by defendant and the risks and alternatives were not discussed. According to plaintiff’s complaint, plaintiff also happened to be unaware at this time that defendant was a paid investigator for the RFAL device, and that the device was being used for his surgery as part of a non-FDA approved clinical trial.

On March 9, 2010, approximately six days following the surgery, plaintiff began to experience pain in the areas in which the surgery had been performed. Even with prescribed medication, plaintiff alleged that the pain was uncontrollable, and that as a result of the procedure, he had been left with scarring and a residual demylinating condition.

On review of defendant’s motion to dismiss pursuant to F.R.C.P. 12(b)(6), the court noted that under the Federal Rules, plaintiffs bringing a claim are required only to provide “a short plain statement of the claim showing that [the plaintiff] [is] entitled to relief . . . .” Recognizing that there was no Pennsylvania Supreme Court precedent which applied the UTPCPL to plaintiff’s claims, the court nonetheless acknowledged that the UTPCPL was intended to protect the public and “eradicate unfair and deceptive business practices” by “plac[ing] consumers and sellers on equal terms.” Accordingly, under the UTPCPL, a plaintiff “must show that she justifiably relief on defendant’s wrongful conduct or representations and that [they] suffered harm as a result.”

With regard to plaintiff’s complaint, the court determined that such “deceptive conduct” was encompassed in the affiliation, connection, and association which defendant had with the RFAL device and its manufacturers, as well as plaintiff’s unawareness of the clinical trial with which he had been involved. Thus, because the complaint contained allegations that defendant had failed to warn plaintiff of the risks regarding the RFAL device, and that defendant misrepresented that the clinical trial had been FDA-approved, the court held that plaintiff had made a valid claim under the UTPCPL, and accordingly, denied defendant’s motion.


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