A surgeon passes a clamp to a team member during an operation under focused lights.
NEW YORK – A New York medical clinic worker recently testified that doctors and staff there weren’t in charge of where to send patients. Instead, he says that power rested with a personal injury lawyer funneling clients to preferred doctors.
The affirmation of Steven Weissbluth was attached to an amended complaint against Subin Associates, a firm that has drawn backlash from insurers alleging a scheme to inflate medical bills so its clients can recover more in court.
Weissbluth was the managing director of All Boro Medical Rehabilitation, allegedly a way station for Subin’s clients. From there, they were sent to Kolb Radiology and then surgeon Michael Gerling, who is added as a defendant in a June 19 complaint by New York Marine & General Insurance Company.
Another exhibit shows 248 Subin clients who followed that path. Weissbluth started in July 2016 at All Boro, called in the complaint the “brain child of Neal Magnus, a litigation funder with decades’ long relationship with (Herbert) Subin, Thomas Kolb and Gerling.” Magnus is also named as a defendant.
“Through Neal Magnus, I was introduced to Herb Subin, who I was informed was an attorney, and who would provide, at the time, the entirety of the referral stream to All Boro,” Weissbluth says.
“Over time, there were other referral sources, but throughout my time at All Boro, Herb Subin’s firm remained the disproportionate majority source of referrals.”
Over nine years, doctors at All Boro, which is now closed, saw those clients and determined whether referrals were needed. Weissbluth, as medical director, was limited to a list of providers provided to him by Subin, he says.
“At no point did I select what physicians were utilized for referrals,” Weissbluth says. “The physicians that populated the referral lists were at all times determined exclusively by Herb Subin.”
Gerling is a popular pick for personal-injury plaintiffs, and another complaint says he appears in more than 7,000 documents in state courts. Litigation against him, he has argued, is an attempt to intimidate doctors from backing claims in court.
New York Marine has noted his penchant for finding injuries other doctors couldn’t and performing surgeries in times much lower than the average for those procedures. In February correspondence to the Subin firm, New York Marine asked it to investigate the case of client Cresencio Guevara, who underwent one surgery in 68 minutes despite the mean time in a peer-reviewed study being 136.
“One explanation is the fastest surgery ever,” lawyers for the insurer wrote. “The other is steps were skipped. One possibility would be not actually removing significant disc material, a distinct possibility where Gerling claims to have extracted specimens of herniated disc material, which there are not records of, and it’s not the first time that happened.”
Previous Legal Newsline coverage has explored how doctors and funders are fueling New York City injury lawsuits – sometimes to the deficit of illegal immigrants who end up with unnecessary surgeries and large loans to repay when the case is resolved.
Subin and Magnus co-own a patent on software for tracking medical bills, and Magnus owns Best Case, a New York funder accused by insurance companies of lending against fraudulent injury lawsuits. Two injury cases are prominently cited in New York Marine’s lawsuit against them, one of which allegedly featuring surgery on a mentally ill man who didn’t need it.
Gerling received $15,000 upfront for that surgery and has asserted more than $100,000 in liens, New York Marine says. He also performed surgery on the only witness to Napoleon Aquino’s alleged injury, Lisa Acosta, who had hired Subin for her own case earlier.
Gerling similarly received $15,000 for her procedure and asserted a $125,000 lien. Aquino’s case ended in mistrial when Acosta couldn’t be located to testify. Guevara had walked to an emergency room with ankle and back pain but had no neck complaints. Upon discharge, he reported his pain rating as a zero.
He hired Subin, was sent to All Boro – he says by a friend – and ended up at Kolb Radiology for an MRI. Findings on it “ordinarily would not justify multi-level fusion surgery,” the complaint says.
Gerling ultimately performed the same surgeries on Aquino and Guevara. Other doctors performing preoperative physicals weeks before the surgery recorded no complaints of neck pain and a full range of motion.
Uber is among those who have sued Gerling, and a Queens County judge in another case sounded off on him in when his qualifications as an expert came into question.
“I am insulted by Dr. Gerling,” the judge said. “And we’ll see how it goes. I’m going to be very fair to all of you, but I am not going to let him off the hook because he doesn’t deserve to be let off the hook and to be presented to this jury like he’s some kind of an expert medical person, because to me he is bordering on criminality.”
