Napoleon Aquino is arrested in Atlantic City while allegedly suffering from a neck injury that Dr. Michael Gerling had determined required surgery.
NEW YORK – Add his lawyers to the list of people sued over the medical treatment of a mentally ill New York man who had a disc taken out of his spine, allegedly to drive up the value of his personal-injury lawsuit.
New York Marine & General Insurance sued Subin Associates for fraud yesterday in New York state court, after the firm decided not to step down from the case of Napoleon Aquino. When 4640 Broadway, the defendant in Aquino’s case accused of blame for the collapse of an apartment ceiling, sued Aquino’s surgeon, it also asked Subin to discontinue Aquino’s case.
Subin will not, it appears, escalating the litigation in what could have been one of the thousands of New York injury cases that are quickly settled. NYM, which is 4640’s insurer and is on the hook for Aquino’s court recovery, decided to sue Subin under New York’s attorney misconduct law.
“The allegations herein are of false facts presented with the intent to deceive Plaintiff and the Court, not erroneous interpretation of law or negligent practice,” the suit against Subin says.
“Here, it is alleged that the defendants colluded with medical providers to thrust an unjustified and medically unnecessary spinal fusion on a mentally ill man just 3 weeks after an involuntary commitment. This is an allegation of conduct far exceeding ‘egregious.’”
Subin faces racketeering lawsuits in federal court over an alleged network of doctors, lenders and lawyers boosting the values of lawsuits by performing unnecessary medical procedures.
Aquino’s case is the latest development. It is complicated by fuzzy imaging of his spine, his family’s history of lawsuits and a wild ride in Atlantic City, N.J., that led to him smashing head-on into another car and being involuntarily committed.
4640 sued Dr. Michael Gerling earlier this month. Gerling is a popular pick for personal-injury plaintiffs, and the complaint against him says he appears in more than 7,000 documents in state courts. He has argued these RICO lawsuits are attempts to intimidate doctors from backing claims in court.
It all started with what Aquino said was the collapse of a ceiling in an apartment on June 12, 2019. Two days later, after signing a power of attorney form with Subin Associates, he reported a 9/10 on the pain scale.
Ten days later, he would claim 0/10 at a different medical provider as part of paperwork to start a new job. In August, Kolb Radiology (also a RICO defendant in other cases) performed imaging which claimed to show herniations at C4-5 and C5-6.
Gerling recommended surgery on these levels at an initial consultation. In December 2019, while Aquino awaited a surgery date, he saw a different doctor who noted the “mild” disc bulge between the C6-7 vertebrae – nothing that would necessitate a surgical fix, the suit says. Gerling then recommended a surgery at C6-7 without reconciling the prior findings and surgical recommendation, the suit alleges.
But in January 2020, Aquino took his wife’s vehicle in Atlantic City while his family was visiting casinos. Cops found him “driving erratically with a tire that appeared to have already been in a collision.” He refused to pull over and ran two red lights before driving head-on into a parked car in front of a casino.
He was naked from the waist down and held against the ground while being handcuffed, the suit says. It adds that he showed no signs of neck pain during the arrest or during his time at the police station.
The next day, he was committed to a hospital, against his wishes. A month later, Gerling performed the surgery on the C6-7 vertebrae.
The suit says he was in no state to be able to approve the removal of a disc from his neck, given an anesthesiologist wrote in notes he appeared to have an “undiagnosed mood disorder” and a nurse identified demonstration of “deficient knowledge.”
The suit said Subin facilitated $15,000 to Gerling, and he asserted a lien for $105,000 out of anything Aquino won in court.
“Defendants have been systemically engaged in deceit and collusion for over six years,” NYM’s suit says.
Subin has defended itself in other cases, like the RICO lawsuit filed against it by Union Mutual Fire Insurance Company. It said the Willis Law Group, which insurers have used to file these lawsuits, is attempting to “chill their representation and treatment of injured individuals.”
Cases against it read “like the rambling thoughts of a pro se civil rights claimant,” Subin argues.
“(Union Mutual’s complaint) simply claims that the type of medical care provided was inappropriate based on the plaintiffs’ perception of how each claimant got hurt,” the firm says.
“These are precisely the issues to be presented and defenses to be litigated in personal injury lawsuit.”
