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Rae Schiff, Plaintiff v. Dennis J. Hurwitz

April 18, 2012


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge


Memorandum Opinion Denying Defendants' Motion To Dismiss (Doc. No. 10)


Presently before this Court is the Motion to Dismiss filed by Defendants Dennis J. Hurwitz, M.D. ("Dr. Hurwitz") and Hurwitz Center for Plastic Surgery, P.C. ("Hurwitz Center"). Doc. No. 10. Specifically, Defendants seek to dismiss Count XI asserting a violation of Pennsylvania's Unfair Trade Practices Act and Consumer Protection Law ("UTPCPL"). Doc. No. 1, 79. The Court has reviewed Plaintiff's Complaint (Doc. No. 1), Defendants' Motion to Dismiss (Doc. No. 10) and Brief in Support Thereof (Doc. No. 11) as well as Plaintiff's Brief in Opposition (Doc. No. 17). For the reasons that follow, Defendants' Motion to Dismiss will be DENIED.

II. Statement Of The Facts

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, at this stage the Court accepts all of the factual allegations in the Complaint as true and all reasonable inferences are drawn in Plaintiff's favor. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Taking the Plaintiff's factual allegations as true solely for the purposes of this Memorandum Opinion, the facts of this case are as follows:

Plaintiff, Rae Schiff ("Schiff"), is an individual and resident of the State of Michigan. Doc. No. 1, ¶ 1. Defendant, Dr. Hurwitz, is a licensed physician and specialist in plastic surgery who maintains a medical office in Pittsburgh, PA. Id., ¶ 2. Defendant, Hurwitz Center, is a Pennsylvania Professional Corporation providing medical services with its principal place of business located in Pittsburgh, PA. Id., ¶ 4. Plaintiff is asserting a medical professional liability claim against Defendants, Dr. Hurwitz and Hurwitz Center. Id. at ¶¶ 2-4.

On April 23, 2009, during an initial consultation with Schiff, Dr. Hurwitz planned surgery in two stages-stage one would include a "tummy tuck" and stage two would include a lower body lift. Id., ¶ 72. On December 1, 2009, Schiff spoke with Dr. Hurwitz about dividing the operations into smaller procedures; however, Dr. Hurwitz never discussed nor documented the potential risk of the device used to perform these procedures, the Radio-Frequency Assisted Lipolysis ("RFAL"). Id., ¶ 74.

On March 2, 2010, Schiff was given pre-operative markings, and according to Dr. Hurwitz's chart, RFAL was discussed with Schiff but not the specific risks of the procedure. Id., ¶ 76. Schiff additionally avers that no conversation concerning the consent form between her and Dr. Hurwitz were discussed; more specifically, Dr. Hurwitz allegedly failed to document the fact that Schiff knew of the risks, benefits, and alternatives to the procedure, or that she was aware that the Invasix Device*fn1 was being investigated in a clinical trial. Id., ¶ 77.

On March 3, 2010, Dr. Hurwitz performed a "BodyTite Procedure"*fn2 on Schiff using the Invasix Device. Id., ¶¶ 78-79. Prior to surgery, Schiff was presented with an informed consent form ("Consent Form") authorizing the "BodyTite Procedure" which was already signed and dated 3/2/2010 by Dr. Hurwitz. Id., ¶¶ 81-82; see also Doc. No. 1, Ex. 4. Schiff avers that neither Dr. Hurwitz nor any of his staff reviewed the Consent Form with her-including all risks, benefits and alternatives-and Schiff was not given an opportunity to ask questions about the procedure. Id., ¶ 83.

During the procedure, Dr. Hurwitz was serving as an investigator for the Invasix Device in a clinical trial sponsored by Invasix and approved by Essex Institutional Research Board. Id., ¶ 80. Schiff was unaware that Dr. Hurwitz was a paid investigator for the Invasix Device, that the Invasix Device was being used in a clinical trial sponsored by Invasix, and that the Food and Drug Administration ("FDA") neither was unaware nor approved of the clinical trial of the Invasix Device. Id., ¶¶ 86-87.

Prior to the "BodyTite Procedure" on March 3, 2010, Dr. Hurwitz failed to disclose to Schiff that: (1) she was not a candidate for the procedure due to the clinical study's protocol; (2) the clinical study's protocols limited the Invasix Device from being used on more than three areas of the body; and (3) Schiff could be paid for her participation as a subject of the investigation of the "BodyTite Procedure." Id., ¶¶ 88-90.

On March 9, 2010, approximately six days after surgery, Schiff complained of increased pain, swelling, and fever during her first post-op visit to Dr. Hurwitz's office. Id., ¶ 91. Over the course of several subsequent days, Schiff had increased pain on all areas of her body in which the procedure was performed and began taking medication prescribed by Dr. Hurwitz. Id., ¶ 93.

By Mid-April 2010, Schiff's pain was uncontrollable even with prescribed medication including oxycodone, Lorazepam, Neurontin, Tramadol, and Volatren. Id., ΒΆ 94. The procedures performed by Dr. Hurwitz left Schiff with irregular scars and scar tissue, and in August of 2010, she was diagnosed with having developed a thermal mediated demyelination of the sensory and autonomic nerves in the thighs leading to a diffuse post RFAL dysesthesia of the thighs and lymphatic system compromise. Id., ...

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