Shaub Ahmuty Clarifying Conduct
SACS obtained a significant victory in the First Department, obtaining dismissal of plaintiff’s deceptive business practices claim under General Business Law (GBL) § 349 in a medical malpractice action. The matter involves claims of malpractice during a surgery and allegations that the defendants made misleading statements to plaintiffs regarding their surgeries. The Appellate Division, in partially reversing the trial court’s order, held that pre-operative discussions with surgical patients did not constitute “consumer-oriented conduct” under GBL § 349.
Notably, this decision serves to constrain the ever-expanding scope of statutory misrepresentation claims in the medical malpractice context and establishes boundaries on the statute aimed broadly at “deceptive acts or practices in the conduct of any business, trade, or commerce[.]” The decision also creates a precedent that restrains a recent trend among the plaintiffs’ bar to re-characterize medical malpractice claims as deceptive business practices, in part, to obtain attorney’s fees under the statute.
The appeal was briefed by Christopher Simone and Nicholas Tam, with Nick arguing the matter before the First Department; Jeremy Rosof drafted the underlying motion papers.