NEW JERSEY LAW JOURNAL - AUGUST 29, 1994

REWRITTEN MEDICAL RECORDS PROMPT RICO CLAIM

By Michael Booth

The state's Racketeer Influenced and Corrupt Organizations Act has been put to diverse use since its enactment 13 years ago, but---until now---never as a count in a medical malpractice suit.

In a case that already has taken unusual twists and turns, plaintiffs' attorney Glenn Bergenfield is trying to amend a malpractice complaint to charge the doctor, the doctor's current attorney and the doctor's insurance company with violating the state's RICO law for allegedly altering medical records.

Bergenfield represents a Belleville woman, Lillian Charles, who suffered a pulmonary embolism after breast surgery. In pretrial statements, the doctor who performed the surgery, Paul Servidio of Bloomfield, insisted he told Charles on numerous occasions that there could be serious medical complications unless she stopped smoking and lost weight. Charles maintains that she never received any such warnings. She has rejected a $500,000 settlement offer, Bergenfield says.

Bergenfield, a Princeton solo practitioner, last week filed a motion to amend the complaint in Charles v. Servidio, 92-3306, to include Servidio's current attorney, Craig Combs, a partner in Morristown's Giblin & Combs, and the doctor's insurance carrier, the Princeton Insurance Co. in Princeton. The new charge, which includes as defendants Servidio and the University of Medicine and Dentistry of New Jersey where he practiced, accuses them of engaging in an ongoing criminal enterprise: altering medical records.

"He [Combs] knew the records were changed," says Bergenfield, who alleges that records in other cases were altered as well. "He had an obligation to notify the plaintiffs' attorneys. He settled [two] cases based on those records."

Those cases, according to Bergenfield's court papers, are Lastra v. Servidio, 93-3865, filed in Middlesex and three Essex cases---Simonelli v. Servidio, 93-1529, Paradise v. Servidio 92-7685, and Arasin v. Servidio, 92-5868. Court records say two of the cases, Paradise and Arasin, have been settled, while the other two remain open.

NO REPORTED PRECEDENT

Both the federal RICO statute, 18 U.S.C. 1961-66, and the state's parallel law, N.J.S.A. 2C:41-4, prescribe civil remedies in cases of two or more people who commit at least two illegal acts in concert with each other. Bergenfield says he knows of no reported case where RICO has been used as a count in a medical malpractice suit. A LEXIS search shows no such cases reported in New Jersey.

Combs scoffs at the allegations. He insists that Bergenfield's claims are the product of a too-fertile imagination. He adds that the records do show Servidio repeatedly warned Charles that she needed to stop smoking and loose weight.

"I read it [the motion to amend] with, I must say, much amazement. Much amazement," he says. "I've seen a lot of things, but this takes the cake."

Bergenfield is basing his latest charges on the deposition of Servidio's office manager, Carmella Luczak. She said she and Servidio rewrote Charles' medical records because they were illegible.

Luczak said she rewrote the records at the direction of Kathleen Gill, a claims manager for Princeton Insurance Co., whom Luczak believed was operating at the direction of Servidio's former attorney, James Vasios, a partner in Short Hills' Hurley & Vasios.

Without explanation, Vasios almost immediately withdrew from the case after Servidio gave his deposition in October 1993 and Bergenfield, after noticing an apparent discrepancy in medical record dates, moved to depose Vasios. Servidio moved to have the deposition subpoena quashed on the basis of attorney-client privilege. But Appellate Division Judge William Dreier allowed Bergenfield a limited amount of discretion in questioning Vasios.

Vasios indicated in the deposition that Servidio told him something about the records---he wouldn't say what---and indicated that he would testify at trail that the records were genuine.

REASONS FOR LAWYER'S WITHDRAWAL?

Bergenfield claims that the records were altered by Servidio. He also says that he believes Vasios withdrew from the case after learning of those alterations. He does not believe, despite Luczak's deposition, that Vasios ordered or knew of the alleged records alteration.

"At this point, because of his reputation, I am giving him the benefit of the doubt," Bergenfield says. "At his deposition, he told me under oath he knew nothing of this. For the time being, I will accept his answer."

Vasios says he is constrained from speaking about the case because Servidio has claimed attorney-client privilege. He adds, though, that Bergenfield's latest claims are new to him and that he is pleased the Bergenfield is not accusing him of wrongdoing. "That's comforting." He says.

In an interview with the Law Journal in July, Bergenfield said he did not think Vasios would have allowed himself to become involved in a fraud. "I have asked others about him," he said. "I don't' think he knew. He would not have been willing to represent someone who was using to him to perpetrate a fraud on the court."

Based on Luczak's deposition, Bergenfield decided to ask for permission to amend his complaint to include a racketeering charge. Under New Jersey law, the racketeering claim must show at least tow predicate illegal events. "She [Luczak] testified that she and her boss [Servidio], one night after all the patients and staff had gone home, rewrote the records in the Charles case. She also testified that they rewrote the records in four other malpractice cases then pending against Servidio. This astonishing revelation was not all. She claimed that the rewriting of the records were done at the insistence of the insurance company and the lawyer hired and paid by the insurance company, James Vasios," Bergenfield wrote in his motion.

"It appears that Princeton Insurance Co. and the lawyers they use to defend their insureds are encouraging at least one doctor to rewrite his records in order to improve their chances of winning. How likely is it that this disgraceful conduct is limited to this one doctor?" Bergenfield continued in the motion.

Sean Buckley, a partner in Princeton's Jackson, Vaurio & Buckley who represents the insurance company in defending itself against deposition subpoenas, declines to comment on the accusations, but says he is not aware of the motion to amend the complaint.

MORE DISCOVERY NEEDED

Neither Gill no Luczak responded to telephone messages left at their offices Friday.

"If I'm the defense attorney and I find that records were altered, I'm under an obligation to notify the plaintiff's attorneys of that and offer them the opportunity to move to vacate the settlement." Bergenfield says.

In his motion to the court, Bergenfield said a deeper investigation is required. "More discovery is needed to find out just how deeply into the insurance company and the defense bar the disease has spread," he said.

"And then one jury should hear this entire, sorry tale."

Combs characterizes Bergenfield's accusations as "drivel." Rewriting medical records, he says, is not the same thing as fabricating new records. "The fertile minds of some people." Combs says. "It really boggles the mind."

The real issue, Combs maintains, is credibility. He adds that Bergenfield is trying to mask that because he has a weak case, Servidio, according to Combs, told Charles about her need to stop smoking and lose weight, but Charles is now saying no warnings were given because she chose to ignore those warnings.

"He's g.htmling at straws," Combs says of Bergenfield.

Essex County Superior Court Judge Renee Jones Weeks tentatively is scheduled to hear the motion filed by Bergenfield on Sept. 9. No trial date has been set.