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Dr. Joseph Dello Russo is feeling the power of publicity. On some New York and New Jersey radio stations, the laser eye surgeon’s ads are as hard to avoid as the Crazy Eddie spots of the 1980s. Last year, the New Jersey doctor went coast to coast on live television and operated on Good Morning America‘s Jack Ford. Afterward, a beaming Ford raved about his improved distance vision. No wonder more than 20,000 people, by Dello Russo’s count, have flocked to the doctor’s clinics in Bergenfield, N.J., and Manhattan. Unfortunately for Dello Russo, his enemies know how to use ads, too. In August, a Livingston, N.J., firm representing two ex-patients suing Dello Russo for malpractice over side effects began trolling for more clients by placing a newspaper ad inviting calls from anyone treated by Dello Russo or his clinic. “Have you had a bad result from laser eye surgery? Please call us for a free consultation to discuss your legal rights,” Livingston’s Nagel Rice Dreifuss & Mazie said in an ad in The Record of Hackensack, N.J. The ad also ran in The Record‘s affiliate, the North Jersey Herald & News. Name partner Bruce Nagel says it worked. “We’ve gotten more than two dozen calls.” That was a good enough response to prompt Nagel to file a putative class action suit against Dello Russo on Nov. 28, charging the doctor with fraud and battery. Now, the doctor is fighting back. In a rare suit by a physician against a lawyer, he has filed a defamation claim against Nagel, saying the ads were the payback for his refusal to pay an extortionate $3 million settlement demand in the original medical malpractice cases. Whoever prevails in Dello Russo v. Nagel, BER-L-993101, it is being waged on the frontier that state regulators and the courts created when they allowed doctors and lawyers to advertise in the mass media. In this case, patients who found their doctor in an ad found a lawyer to sue him in another ad. It began this spring when Nagel filed the two medical malpractice complaints in Bergen County, N.J., on behalf of former patients of Dello Russo’s New Jersey Eye Center in Bergenfield. The center specializes in the use of computer-calibrated lasers that, in effect, sculpt corneas to correct myopia. There are, however, side effects to such procedures, including post-operative discomfort, and the Food and Drug Administration has reported that the eyesight of a small percentage of patients around the country worsened after laser surgery. Dello Russo is defending himself against the complaints, which don’t specify how plaintiffs Deborah Cucopulos of Franklin Lakes, N.J., and Donna DeAngelis of Montville, N.J., were harmed. But the filings did go into detail on an unusual secondary claim. The complaints alleged that a colleague of Dello Russo’s, Dr. William Kellogg, committed fraud by treating patients at a time he was under suspension by the New Jersey Board of Medical Examiners for performing unnecessary surgery. Under the terms of his 1995 suspension and a 1999 amendment, Kellogg was allowed to work for Dello Russo, first as a technician, then in the context of a learning fellowship. The coordinating malpractice defense counsel in the case, Steven Kern of Bridgewater, N.J.’s Kern Augustine Conroy & Schoppmann, says Kellogg’s activities were within the bounds of the board’s order and were monitored by the board. The suits said that Kellogg practiced medicine, thereby defrauding the patients and committing battery by touching them. Nagel is an expert on such causes of action. Last March, in Howard v. University of Medicine and Dentistry, 338 N.J. Super. 33 (2001), he convinced an appeals court to reinstate fraud and battery claims against a malpractice defendant who allegedly held himself out to be a board-certified surgeon. The defense argued that such actions should be subsumed by malpractice claims, particularly claims that doctors failed to obtain informed consent. But the court said the deceit and touching allegations were sustainable on their own. The New Jersey Supreme Court is to hear UMDNJ’s appeal next month. What happened after Nagel filed the malpractice cases against Dello Russo depends on who is talking. Nagel says the “extortion” alleged by Dello Russo in a complaint filed by Hackensack solo practitioner Richard Koppenaal was really a garden-variety settlement discussion in his Livingston office. Nagel won’t confirm that he asked for $3 million. But he says Kern and his partner, Robert Conroy, offered $2 million, with a catch: Nagel had to promise he would never sue Dello Russo again. Kern declines to comment on any discussions and Koppenaal won’t go beyond his defamation complaint, which says Nagel threatened that if his demands weren’t met he would contact the media, call a press conference and place an ad in the newspapers. Koppenaal says the doctor isn’t going to comment, but the suit says he “refused his demands although he felt threatened by what he believed were his [Nagel's] attempts at extortion.” Dello Russo said in a certification that the advertisement — along with statements Nagel made in July to reporters in Bergen County — “was devastating to my business. Many of my patients canceled their surgeries and my office suffered a significant drop in new patient population.” Unfortunately for Dello Russo, Koppenaal says he knows of no precedents or ethical rules that bar Nagel from advertising for clients. And Bergen County Superior Court Judge Robert Guida denied Koppenaal’s request for a temporary restraining order barring Nagel from discussing the case publicly or advertising. As a practical matter, Dello Russo doesn’t need a judge to stop Nagel’s ads; The Record already did it. Advertising vice president Louis Stancampiano said Friday that Nagel’s ad was supposed to run for several days, but after the first day the firm was notified the ad violated the paper’s standards. He says the firm was told it would be OK to target all laser surgery patients, but not those of a particular doctor, in keeping with a policy against attack ads. The firm refused to revise the copy and that ended the relationship, the ad executive says. That Dello Russo was an advertiser “had nothing to do with it,” Stancampiano says. Class action medical malpractice cases against doctors are rare because the damages are inconsistent, making it impossible to fashion a common remedy, according to Eric Weinberg, a plaintiffs’ class action lawyer who heads a firm in New Brunswick, N.J., and is of counsel to Woodbridge, N.J.’s Wilentz, Goldman & Spitzer. That’s why the fraud and touching claims against Kellogg are crucial to Nagel. By Nagel’s reckoning, a class action compensatory and punitive damage award for fraud and touching could be divided equally among all patients treated by Kellogg, whether they suffered a traditional malpractice injury or not. Weinberg and John Blume of Chatham, N.J.’s Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte say they have never seen an ad like Nagel’s. Blume says one of Dello Russo’s patients came to the firm but he was sent to Nagel. Fittingly in a case that’s all about publicity, Koppenaal’s own press clippings apparently got him the job with Dello Russo. He says the doctor hired him after reading a news account about his success in a slander case on behalf of two other doctors. On Oct. 24, a Bergen County jury awarded Koppenaal’s previous clients, Kenneth and Daniel Conte of Garfield, N.J., $596,000 in compensatory and punitive damages from a politician in their town. The doctors had accused Councilman Frank Calandriello of spreading the false story that their medical practice was stealing water from the city. Nagel doesn’t seem to be worried about Koppenaal’s expertise. “I’m extremely flattered that the doctor has taken these steps to prevent our firm from representing clients against him, but the present lawsuit is an outrageous abuse of the process,” he says. And he says it’s ironic that Dello Russo’s effort to stop publicity about suits is generating even more publicity.

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