Napoleon Aquino is arrested in Atlantic City while allegedly suffering from a neck injury that Dr. Michael Gerling had determined required surgery.
NEW YORK – A New York surgeon named in several racketeering lawsuits is accused of taking a disc out of the spine of a mentally ill patient in order to preserve an investment in the man’s personal injury lawsuit.
The defendant in Napoleon Aquino’s case, 4640 Broadway, has decided to fight back against Dr. Michael Gerling, who is among those sued by Uber and insurance companies in at least three federal RICO cases alleging a network of doctors, lenders and lawyers is boosting the values of lawsuits by performing unnecessary medical procedures.
Aquino’s case 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. On Tuesday, 4640 filed a complaint against Gerling, his business and others in Bronx Supreme Court over Aquino’s allegedly unnecessary treatment.
Gerling is a popular pick for personal-injury plaintiffs, and the complaint says he appears in more than 7,000 documents in state courts.
“Even the historically extreme remedy of dismissal of an action tainted by fraud upon the court fails to remedy this systemic malignancy; particularly where such dismissal is upon a matter brought on behalf of a mentally ill man who could not legitimately consent to Gerling’s financed procedures in the first instance,” the complaint says.
It 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, as is Subin) performed imaging that showed a “mere” bulge between vertebrae in his neck.
Gerling, who has argued these RICO lawsuits are attempts to intimidate doctors from backing claims in court, now became involved, and his notes said the image had “poor resolution.” On Nov. 5, 2019, he recommended spinal fusion of vertebrae that would ultimately be left alone.
In December, 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.
But in January, 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 “deficient knowledge.”
“No one,” the suit says, “amongst four other physicians who reviewed films, saw a C6-7 herniation. And no one at all observed any MRI ‘correlating with symptoms’ because no MRI was ever performed.
“Plaintiff has suffered two separate shooting incidents resulting in fragments remaining in his body – he can’t get an MRI. He had only undergone CTs. The only EMG exclusively found evidence of radiculopathy at C5. Every part of Gerling’s proffered surgical justification is knowingly false.”
The suit said Subin paid Gerling $15,000 for treatment, and he asserted a lien for $105,000 out of anything Aquino won in court.
The witness to Aquino’s injury was Lisa Acosta, another Subin client with a personal-injury case. His wife hired Subin for a lawsuit. The witness to her alleged injury, Juan Noesi, also has an injury lawsuit filed by Subin. Noesi’s wife hired Subin for her trip-and-fall lawsuit.
And lastly, Aquino’s brother has used Subin for two lawsuits – one for a workplace injury and another for a trip-and-fall.
The complaint charges the defendants with fraud, among other claims, and seeks a ruling that would force them to contribute to whatever is recovered in Aquino’s case.
Gerling defended his practice in December in a lawsuit filed against him by Uber, which made similar accusations of unnecessary procedures.
“What Uber is really doing here is trying to intimidate doctors from backing up injury claims, scare them out of testifying for injured plaintiffs, and shift blame away from its own corporate negligence,” Gerling’s lawyers wrote.
“Nowhere in the complaint does Uber allege that the Gerling defendants solicited patients, paid for referrals, or fabricated testimony. The allegations boil down to Uber disagreeing with how certain patients were treated.”
