Plaintiffs claim that hospital’s failure to warn them was illegal trade practice
by Thomas B. Scheffey
Connecticut Law Tribune
October 13, 2008
Atty. Sean K. McElligott said Greenwich Hospital promoted its Breast Center as a business and failed to notify the public that one of its surgeons was a drug addict for fear of shutting off the revenue stream.
Greenwich Hospital boasted on its web site that it had assembled the “newest technology and a team of breast cancer specialists into one comprehensive Breast Center.” The hospital hosted online chats with doctors and held breast cancer awareness sessions at local libraries and community centers.
But the whole time they were trying to drum up business, according to a lawsuit, hospital officials knew that a Breast Center plastic surgeon, Dr. Ian Rubins, was a chronic substance abuser. He died of a heroin overdose this past January inside the apartment of a Stamford drug dealer.
Now eight women who were treated in the Breast Center have filed a lawsuit in Bridgeport Superior Court that accuses Greenwich Hospital of failing to alert them to Rubin’s 10-year history of drug abuse.
The plaintiffs hope to turn the suit into a class action that includes women Rubin operated on between April 1, 2001, when the Breast Center opened, and May 22, 2007, when Rubins was suspended from practice.
The lawsuit names only the hospital as a defendant, not Rubins’s estate. Nor does it allege medical malpractice or individual acts of surgical negligence.
Instead, the lawsuit focuses on the hospital’s efforts to generate business for the Breast Center, and alleges violations of the Connecticut Unfair Trade Practices Act as well as fraud and breach of the hospital’s fiduciary duty.
Plaintiffs’ attorney Sean K. McElligott, of Bridgeport’s Koskoff, Koskoff & Bieder, alleges that Rubins was a “chronic drug addict” whose condition diminished his ability to perform surgery competently and safely. Rubins, the suit charges, had a “major depressive disorder” and a history of relapsing into drug and alcohol abuse.
According to the suit, which seeks a refund of surgical charges and punitive damages, hospital officials knew about all this. But in an effort to protect their revenue stream, they failed to disclose Rubins’s condition to the hundreds of women he treated between 2001 and 2007, according to the complaint.
“The director of the [Breast] Center had a regular radio talk slot in which he promoted the services of the center,” said McElligott, explaining the reason for the CUTPA charge. “So it really was a hospital operating as a business, reaching out into the community to promote its services.”
One plaintiff, Robin Lyons of Stamford, said at the time of filing that after Rubins operated on her in 2006, she experienced severe swelling that required three corrective surgeries. “With everything else you have to worry about as a breast cancer patient,” she said, “you shouldn’t have to worry about your surgeon being a chronic drug addict, possibly under the influence of drugs during surgery.”
Syringe Before Surgery
Rubins joined Greenwich Hospital in 1994. Two years later, according to a state Department of Public Health report, he entered rehab for an addiction to Fentanyl, an ultra-strong painkiller used by cancer patients.
But, according to the lawsuit, he had numerous relapses. In one 2006 incident, he allegedly reported for surgery in a visibly intoxicated condition, due to the use of unspecified “controlled substances.” When sent to rehab a month later, he consumed multiple alcoholic beverages en route to the treatment center, the complaint alleges.
Then, on May 21, 2007, just before Rubins was to perform a surgical procedure, he pilfered a syringe of Fentanyl from an adjoining operating room, where it had been prepared for another doctor’s patient, according to the complaint.
Rubins instead injected it into himself, surreptitiously replacing the syringe’s contents with saline solution. He later told state health officials he swiped the drug to relieve disc pain in his neck.
After Rubins was suspended, he was interviewed in July 2007 by a Greenwich Time newspaper reporter. Rubins said he underwent neck surgery four days after the syringe episode, and had two discs removed, two bone grafts and three spinal fusions. He said he wished the incident hadn’t happened, but said “my biggest regret is that I did not have this surgery sooner.”
He also maintained his drug use never interfered with his surgical work.
The Greenwich Time also quoted hospital spokesman George Pawlush about its knowledge of Rubin’s condition. “We’re going from a situation that started in 1996, to 2006. That’s 10 years,” Pawlush said. “During that time, he went through rehabilitation, and his record was clear for 10 years.”
After the lawsuit was filed, the Law Tribune contacted Pawlush seeking comment. “Unfortunately,” he said, “we have been directed to not discuss pending litigation. However, it is our belief that this claim lacks merit.”
He added that the hospital consistently gets high rankings nationally in patient satisfaction, and is committed to high quality care.
Class Action Tactics
The upside for a plaintiff in bringing a CUTPA case of this sort is the potential for punitive damages and attorneys’ fees, said David Bizar, a business litigator in the Hartford office of McCarter & English. Bizar is not connected with this case, but has defended a number of complex class action cases.
“The downside is that the defendant has a right to take an appeal once the class is certified, rather than having to wait for the case to go to judgment,” Bizar said.
Bizar said the fact that there are eight named plaintiffs will make it much harder to have the case qualify for class action status, which requires their claims to be largely identical. “Every time you add another plaintiff, it introduces individualized facts that a defense lawyer can exploit. My honest opinion is that this case cannot be certified under Connecticut law, and if they were to get it [certified] at the trial level, they would face an immediate appeal,” he said.
Bizar said his view is that the Greenwich Hospital case is being “brought for shock value, to try to scare the hospital into throwing [plaintiffs] some money, more than anything else.”
But McElligott said his clients’ complaints are not based on individual physical injuries or treatment mistakes, but on a uniform sense of dismay they felt just after Rubins’s death, when they learned of his addiction and why he had behaved erratically.
He also maintained that the hospital’s “interesting and unusual” marketing efforts amounted to unfair trade practices when officials concealed the fact that one of their surgeons had a substantial drug problem.
“Our point is,” McElligott said, “that a hospital has to realize that it’s not just a business. Patients lives are at stake.”