Complaint Review: Dr.Fretta

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3564-15T3

UMUT TURKDOGAN and

ENGIN TURKDOGAN,

Plaintiff-Respondents/

Cross-Appellants,

v.

MEDISPA OF SHREWSBURY LIMITED

LIABILITY COMPANY d/b/a MEDISPA

AT SHREWSBURRY, MARGUERITE

DEFONTE, CHRISTINA LYNN

TSAGARIS, NICHOLAS DEFONTE, LASER

MED SPA MANAGEMENT LIMITED LIABILITY

COMPANY, and DR. JAMES AVELLINI,

Defendants,

and

DR. JOSEPH FRETTA,

Defendant-Appellant/

Cross-Respondent.

__________________________________________

June 29, 2017

Submitted May 25, 2017 – Decided

Before Judges Lihotz, Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket Nos. DC-6054-14 and DC-4870-14. A-3564-15T3 2

Law Offices Robbins and Robbins LLP, attorneys for appellant/cross-respondent (Spencer B. Robbins, on the brief).

The Swain Law Firm, P.C., attorneys for respondents/cross-appellants (Andrew D. Swain and Christopher A. Bradley, on the brief).

PER CURIAM

Defendant Joseph Fretta, M.D., appeals from a March 14, 2016 Special Civil Part order denying his motion for reconsideration of the December 17, 2015 order, which directed he pay $7000 in counsel fees to plaintiffs, Umut Turkdogan and Engin Turkdogan.1 Umut and Engin cross appeal from a November 13, 2015 order entering judgment for $590.96 in their favor, as well as the December 17, 2015 order.

1 Engin Turkdogan is the father of Umut Turkdogan. To avoid confusion, we refer to the father as Engin and the son as Umut. We do not intend any disrespect by such informality.

After reviewing the record, briefs, and applicable law, we affirm in part and remand in part for further proceedings.

I

Plaintiffs' complaint alleges in May 2012, they each sustained burns after undergoing a procedure to remove hair from their backs using a laser. The procedure was performed at defendant Medispa of Shrewsbury, L.L.C., (Medispa) by defendant Christina Lynn Tsagaris, a cosmetician. Before trial, A-3564-15T3 3

defendants Medispa, Tsagaris, and Marguerite Defonte, the owner of Medispa, each settled for $8000. Defendants James Avellini, M.D., and Nicholas Defonte were dismissed from the complaint. The matter was then tried against the sole remaining defendant, Fretta.

It is not disputed cosmeticians are prohibited from using a laser, see N.J.S.A. 45:5B-3, and that Tsagaris used a laser to remove hair from both of plaintiffs' backs. In their complaint, plaintiffs alleged Fretta held himself out to be and was in fact Medispa's medical director. Plaintiffs specifically contended Fretta violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -204, because, as medical director, he failed to properly supervise Tsagaris to ensure she did not use a laser for hair removal. Plaintiffs also claimed that, as medical director, Fretta was negligent; specifically, he breached a duty of care toward them by failing to ensure Tsagaris did not use a laser and, as a proximate result, they were injured.

Plaintiffs further maintained that, even if he were not in fact Medispa's medical director, Fretta violated the CFA by allowing Medispa to falsely advertise that he was, thus inducing plaintiffs to use Medispa's services out of a belief its cosmeticians' services were being supervised by a physician. A-3564-15T3 4

They also claimed Fretta was negligent for permitting Medispa to use his name and, as a proximate result, sustained injury.2

2 Plaintiffs asserted other causes of action against Fretta in their complaint, but none are at issue on appeal, with the exception of the count alleging negligence per se. In their brief before us, plaintiffs argue the trial court failed to address whether Fretta was negligent per se. However, our reading of this count reveals no allegation against Fretta was made. Accordingly, we do not address any claim Fretta was negligent per se.

At trial, plaintiffs, representatives of Medispa, and Fretta testified. Both plaintiffs stated they received medical treatment after being burned by the laser. Umut claimed his economic damages were $1050; Engine testified his were $1190. Umut also testified "it gave me assurance there was a medical director. So it gave me understanding of the legitimacy of the practice." Engin did not know there was a medical director or physician associated with Medispa.

Both the owner of Medispa and one of its cosmeticians testified that, at the time plaintiffs received the laser hair removal services, Fretta was Medispa's medical director and regularly represented such fact to third parties. Fretta testified he was not Medispa's medical director and never authorized Medispa to represent he was.

Following trial, the court issued an oral decision, in which it found plaintiffs and the representatives of Medispa A-3564-15T3 5more credible than Fretta, who the court determined had not been "completely forthright" with the court. Although not well articulated, implicit in the court's findings was Fretta was not in fact Medispa's medical director, but that Fretta allowed Medispa to hold him out as though he were. The court found that, as a result, Umut relied on the fact Medispa "was operational under guise of medical authority overseeing the day to day operations."

The court concluded that by allowing third parties to believe he was Medispa's medical director when in fact he was not, Fretta violated N.J.S.A. 56:8-2, which prohibits, among other things, a misrepresentation, "or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise." The court held Fretta was liable to plaintiff "in consumer fraud for treble damages," and "Fretta is responsible for 20 percent of the cost spent by [Umut] for the procedure done." The court reduced the damages attributable to Fretta to twenty percent because Fretta really didn't have anything to do with these patients but for the fact that he held himself out as a medical director. So his percentage of culpability is much less than that of the . . . co-defendants. And A-3564-15T3 6

. . . based on my assessment of the facts and evidence as I see it, it is 20 percent.

The court then found Umut sustained economic losses of $984.94. After trebling and then reducing this amount by twenty percent, the court calculated Umut was entitled to $590.96 in damages, plus reasonable attorneys fees. The court did not make any findings as to Engin or any findings on plaintiffs' claim Fretta had been negligent.

On November 2, 2015, the trial court entered an order stating it was entering judgment in favor of "plaintiff" in the amount of $590.96, and that plaintiffs' counsel was to submit a certification on counsel fees. On November 13, 2015, the court entered an order amending the November 2, 2015 order, stating judgment for $590.96 was entered in favor of "plaintiffs" instead of "plaintiff."

Plaintiffs' counsel submitted a certification in support of their request for attorneys fees and, on December 17, 2015, the court entered an order awarding plaintiffs $7000 for such fees. In the order, the court provided its reasons for awarding this particular sum in counsel fees. On March 14, 2016, the court denied Fretta's motion for reconsideration of the December 17, 2015 order. In the March 14, 2016 order, the court stated:

This Court's award of attorney fees to Plaintiff in the amount of $7,000 is clearly A-3564-15T3 7 outlined in the Order dated December 17, 2015. This Court finds no palpable mistake of law or fact that would warrant reconsideration of this award. Accordingly, the Order dated December 17, 2015 remains in full force and effect.

Fretta filed a notice of appeal and, on June 6, 2016, we entered an order clarifying Fretta's appeal is limited to a review of the March 14, 2016 order.

II

On appeal, Fretta contends the trial court erred when it ordered him to pay $7000 in counsel fees, because he was responsible for causing only $590.96 in damages. He also challenges the November 2 and November 13, 2015 orders. As our review is limited to the March 14, 2016 order, we do not address Fretta's challenges to the November 2 and November 13, 2015 orders.

A trial court's award of counsel fees "will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Under state fee-shifting statutes, "the first step in the fee-setting process is to determine the 'lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 334-35. This is the "most significant element in the award of a reasonable fee because that function A-3564-15T3 8

requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application." Id. at 335.

"It does not follow that the amount of time actually expended is the amount of time reasonably expended." Ibid. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). Hours are not considered reasonably expended if they are "excessive, redundant, or otherwise unnecessary" or are spent on "claims on which the party did not succeed" or "that were distinct from claims on which the party did succeed." Ibid. (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).

We have considered Fretta's arguments, and conclude they are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). Bearing in mind a court's discretion in awarding counsel fees, we affirm the March 14, 2016 order for substantially the same reasons set forth in that order, as well as in the December 17, 2015 order.

In their cross-appeal, plaintiffs contend the trial court erred because it awarded them only $7000 in fees and, further, the court failed to find defendant's actions also constituted negligence. Plaintiffs also point out the court did not make A-3564-15T3 9 any findings about Engin with respect to any of his claims, and that the court's findings on Umut's economic damages were unsupported by the evidence.

After examining plaintiffs' arguments and the applicable law on the question of counsel fees, we similarly conclude their arguments devoid of merit. We affirm the December 17, 2015 order for the reasons expressed in that order.

We agree the court overlooked making any findings concerning Engin's claims, and failed to provide its reasons for rejecting plaintiffs' claim Fretta was negligent. "The judge's failure to make findings and conclusions is not only in disregard of oft-stated admonitions," but also causes "a substantial disservice, for [the appellate court is] left unable to resolve the meritorious issues which they project." Girandola v. Allentown, 208 N.J. Super. 437, 440-41 (App. Div. 1986). However, because the court found Fretta was not in fact the medical director of Medispa, we question, without deciding, whether Fretta can be held liable for failing to ensure, as plaintiffs allege, the cosmeticians did not use lasers on customers to remove hair. But plaintiffs also contend Fretta breached a duty of care to them by allowing his name to be used by Medispa to attract customers. Plaintiffs maintain this breach proximately caused them injury. Thus, we are compelled A-3564-15T3 10 to remand this matter to the trial court, so that it may determine whether a duty of care existed, see Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), and if so, whether Fretta breached that duty of care and proximately caused the damages plaintiffs allege.

Finally, although a very minute point, the evidence reveals Umut's economic damages totaled $1050, not $984.94; thus, after making the adjustments the court found warranted, Umut's damages total $630, not $590.96.3 On remand the court shall amend the judgment to reflect Umut's damages on the claim Fretta violated the CFA are $630.

3 These adjustments are that $1050 is to be trebled and the resulting sum reduced by twenty percent.

I have known Dr. Fretta for 25 years.   Over the years he has treated me for medical problems and a few cosmetic procedures.  Each and everytime he diagnosed me accurately and treated me perfectly.  I had constant pain from my bad veins before Dr. Fretta treated me.  My legs feel good now.  I do not have one negative comment.

I am a patient of Dr. Fretta being treated for reticular and spider veins.  First of all, he is a very kind, caring doctor who really gets to know his patients.  He is completely accessible and available to his patients.  In this day and age that is so rare with all of the "big group" mega offices.  I know if I have a question or concern I can pick up the phone and speak to my Doctor and not a secretary relaying messages back and forth.  When visiting his office for a procedure his staff is equally kind and caring. 

Additonally, the work he does is amazing.  After just a single visit I saw improvements and with follow up visits the results are nothing less than spectacular.  His knowlege and skill make all the difference in the final outcome which is so important when seeking this kind of treatment. 

I highly recommend Dr Fretta for anyone looking for a doctor with outstanding bedside manner, skills and ethics.

He is talented, hard working, kind and honest and all physicians should be more like him!

Please take notice that on July 8, 2016 the undersigned attorney for Joseph Fretta, MD will appy to the Superior Court of New Jersey, Law Division, Monmouth County Courthouse, 71 Monument Park, Freehold, New Jersey for an Order:

1.  Disclosing the identity of the anonymous author's identifying information who wrote the false "Ripoff Report-Complaint Review Nationwide: 1152518";

2.  Expediting discovery in this matter; and

3.  Such other relief as the Court deems reasonable and just.

Robbins & Robbins, LLP

      /s/_________________

Spencer B. Robbins, Esq.

Attorneys for Joseph Fretta, MD

 Doctor Fretta is an AWESOME doctor. I have had wonderful experiences with him and his staff. It is very unfortunate that people use the Internet to post lies and companies such as this allows it. Doctor Fretta stands by his work, and is an excellent doctor. I will continue to recommend his service and keep him as my personal Doctor.

I have been a patient of Dr.Fretta for over ten years and I would trust this Doctor with my life. He has always explained the process behind his procedures in a manner in which I could understand them. He has always made himself available whether it be for an appointment or to speak over the phone. Unlike many other Doctors in the area, he has an vested interest in his patients and checks in on them after to see how things are going. Another time, I mentioned my grandfather was in the hospital, and Dr.Fretta went to visit him after a long day to make sure my grandfather was being treated correctly. Dr.Fretta is a premier Doctor.  He is extremely knowledgable and bellieves in natural remedies to improve your health.  It is a shame that more Doctors are not like him. 

I have no idea of why the person who made this complaint has so much malice in her heart toward the doctor and his staff which is the furthest thing from the truth speaking from my personal experience.

I have suffered many years with varicoise viens, severe swelling of legs and ankle.  I was refered to Dr. Fretta by another physcian who I trusted with my well being.  I have been going to Dr. Fretta for over a year and the results of my legs is the best thing that could have ever happened to me. Every where I go I am telling someone about my amazing doctor that has me now walking without pain. 

I had such horrible knee pain that somedays I could barely stand after trying all kinds of shots and physical therapy not opting to have a knee replacement, Dr Fretta begin to treat my knee pain well I turned 60 in August 2014 and was able to enjoy my surprise birthday party thanks to Dr. Fretta.

INSURANCE FRAUD- I can't imagine what would make this patient accuse him of insurance fraud or stealing from anyone for that matter. I receive checks from my insurance company that I take to his office he has never made me feel as though he was doing anything unethical. I check my report summary and everything that he has reported that he done for me is exactly what he did. Just saything this sounds a little supicious to me on behalf of the patient if the checks are coming to you and you suspected that he was charging your insurance company wrongfully why didn't you stop going to him and report him to  the insurance company. You did have choices.

Staff- The most professional women that I have met in a doctors office in a long time LaToya and Tandiqua, always get a call to remind me of my appointments and since I am usually his last patient in the evening I so appreciate their kindness and condsieration especially after a long day with some not so kind people.  As for them having a license or certification please tell me what type of license should they have to standby and comfort patients and just be kind they are an asset to his office and last time I checked there was no need for license to be kind.

I reccomend Dr. Fretta to anyone who is looking for a doctor with good bed side manner and who doesn't want you to pay for 5 minutes of advice and bad attitude which is how most doctors are today.     

I have been a patient of Dr  Fretta for over 25 years. Professional,caring and courteous are words that come to mind. He listens well and you never feel rushed. He even takes the time to help with other concerns you may have. I wish all doctors had the bedside manner Dr. Fretta has. I cannot believe anyone would give anything other than 5stars for Dr. Fretta and his staff!

I have been a patient of Dr. Fretta since 1992. He has treated just about everyone in my family and most of my friends. Dr. Fretta has always made himself available 24/7. He has practiced medicine the way it was meant to be..... about healing, good health, caring and certainly not about the money. I have witnessed this many times over. Dr. Fretta instinctively practices the Hypocratic oath. Anyone stating anything to the contrary is in need of a Psychiatrist. I do not believe that their has been a better physician of our time.

Dr. Fretta has been my doctor since 1993.  I moved to the area and his name was give to me as one of the best internal maedicine doctors in NJ.  He was very attentive had an old school approach and was always able to squeeze me in, even wait late at the office unitl i could make it to his office after work,  Yes it is true he thinks outside the box.  I to had two hernaiated disks in my back and his trigger point shots were just as affective as the super expensive epidural injections my pain doctor sent me for.  I would not potray Dr. Fretta as a complainer, he is a realist and has some very novel ideas to deal with the health care induustry.   As far as i am concerned he could charge double the amount he charges now and i would not complain.  Who ever is upset wth DR. Fretta should realize that you will never get a great doctor such as Dr. Fretta.
                                                                                                                                                  

I have been working with Dr. Joseph Fretta as a freelance sonographer on a bi-monthly basis since 1987. When I first began with Dr. Fretta, only 14 physicians in the country were treating superficial venous disease. His sharp intellect, coupled with a keen instinct for thinking outside the medical box, enabled Dr. Fretta to become one of the pioneers in chemical ablation/sclerotherapy. My career as sonongrapher blossomed when he began performing this procedure because it combines sclerotherapy and ultrasound, a procedural marriage that has made varicose vein treatment much safer, more accurate, and an effective alternative to invasive vascular surgery. Dr. Fretta was at the forefront of this treatment, and I’ve been working side-by-side with him on these procedures for over 25 years.

I have seen the superb results; I have witnessed and heard the countless praises from patients who were overjoyed and impressed with the services and care that Dr. Fretta provided, and continues to provide for his patients. He is a doctor who combines cutting edge techniques with traditional medicine, particularly his compassionate, personable bed-side manner. It’s been a professional and personal joy to work alongside this outstanding physician. 

I'am a patient of Dr. Fretta him and his staff had been very kind and professional. Big thank you for all the care and help provided through my illness.

Sincerley,

Liz

Dr. Fretta is a Great Doctor!

I have been seeing Dr. Fretta for well over 30 years & have nothing but good things to say about him.

I have referred many friends and family to him throughout the years & they too have all been Extremely Satisfied with the level of care they have received.

The Dr. is knowledgeable, professional & very personable.  His office staff is courteous competent & polite.

Most recently Dr. Fretta has performed a procedure on veins in my legs and as usual he took the time to properly diagnose my problem and explain my options to me so that I could make an informed decision.
I am happy to say that everything turned out well as usual & I knew what to expect.

The Dr. has kept me in the best of health for many many years.

I, my family & friends were all mortified when we heard of these ridiculous claims being made about the good Doctor.

It's a shame that these days a good man who has dedicated his life to helping others has to defend a lifetime of good deeds because of some disgruntled criminal posting something on the internet.

He is extremely competent, trustworthy & honest!

 I will continue seeing Dr. Fretta & highly recommend him to anyone with confidence

Carol from Livingston

I have known Dr. Joseph Fretta for 32 years. I was one of his first patients when he started his practice. I met him during the July 4th weekend in 1982 during which I fell and hit my head in my bedroom. I had a concussion and could not walk a straight line. I went to the Health Clinic on Harrison Street in East Orange where I was administerd to by Dr. Fretta. After diagnosing that I could hardly stand or walk a straight line, Dr. Fretta had me admitted to East Orange General Hospital in East Orange. During my stay in the hospital, I was taken to another department for further care. However, before they could start I fainted and Dr. Fretta had to revive me and put his hand in my mouth to keep me from swallowing my tongue, therefore saving my life.

During the 32 years that I have been a patient of Dr. Fretta, he has been treating me for Diabetes, and enlarged Prostate screening. The results of his Prostate Cancer PSA screening tests resulted in Dr fretta sending me to a Urologist in 2006, who found Cancer in my Prostate gland and removed my Prostate in 2006.  Dr. Fretta has sent me for stress tests and last year Dr. Fretta sent me to a Heart Specialist, who along with his associate, found that I had a heart problem and would need 2 stents inserted into 2 arteries in my heart. Those two operations were done in 2013.

I have recommeded several of my friends and associates to Dr. Fretta and all of them have expressed complete satisfaction with his knowledge and care.

Dr. Joseph Fretta has saved my life on more than one occassion and I respect and love him as a Physician and friend.

Sincerely,

Leslie S. Phipps   

This Dr is a great guy has been my doctor for many years dont believe the negative comments he is an honest guy with not a bad bone in his body would never ever do anything like this just one of those old school great guys.

I have been going to Dr. Fretta for many years and have never seen the type of behavior you mention.  He does not take insurance, so how can there be insurance fraud?  They swipe your credit card in front of you, which makes CC fraud difficult. 

 Yes, I have heard him complain about reimbursement rates, but that is why he stopped taking insurance.  It is your choice to use him or not, but as an insurance professional,  lawyer and long term patient I have seen no evidence of anything you mentioned in your post.  

Lastly, the link in the origional report shows that he has no malpractice or other actions.  Isn't that a good thing

Not only am I a patient but I worked for Dr. Joseph Fretta.

He is of high intergrity,always honest and above board.

He is an excellant physician his diagnosis are 99.9% accurate.

His overall care ofhis patients is outstanding.

I would recommend him highly.

I think I know why this report was filed its called BUYER'S REMORSE.

                    I Dr. Joseph Fretta have been in practice since July 1st 1983 as an internist and started treating varicose vein patients since Dec, 1990 after 2 years training through the American College of Phlebology. I have treated over 29,000 patients with varicose veins and spider veins with my partner of 10 years Dr. William Wolkstein a plastic surgeon. I was trained by Allergen and treated thousands of patients with Botox, fillers and chemical peels for 15 years.  I had the first Smart Lipo machine in NJ in 2006 and had treated hundreds of patients. I have thousands of happy patients and our prices are very reasonable.

Having studied medicine in Guadalajara Mexico as did thousands of American doctors, exposed me to Mexican, Central American and South American cultures and a proficiency in Spanish that has been very helpful to my practice. A patient of mine was convicted of medical insurance fraud sending in medical bills she claimed to have paid and received over 100 thousand dollars from her carrier before this was discovered. The New Jersey Attorney General's office knew I was not complacent in this occurrence and my integrity was never questioned by the authorities. The patient was sentenced to 5 years imprisonment for fraud and these remarks may have been written by her during the investigation.

    As far as my staff goes, they all are licensed Medical Assistants Not Physician Assistants since I provide all patient care and draw blood on all my patients. I don’t have Physician Assistants or Nurse practitioners treating my patients.

I treat Medicare patients as a courtesy to my elderly patients, for all medical and vein disorders. But some new patients even when questioned by my staff when booking their first appointment don't realize they changed their Medicare AARP to a Medicare HMO by United Health Care or Aetna which doesn't cover out of network providers. Some of these patients when seen in our office didn't see the letters HMO on their card which limit their access to many doctors. We deal with all Medicare AARP, Aetna, Blue Cross, and United Health Care as long as it has PPO not HMO. Unfortunately, when this is explained to some people over the phone they still don’t understand, they are confused and angry when they come and can't be treated. I then gave them a free consultation and sent them where their plan might be accepted.

I rented space at the Medi Spa in Shrewsbury owned by Margarete Defonte when my Red Bank office had to be vacated due to structural roof and window deficiencies causing leaks in my office. I was not a business associate, just a tenant and didn't have any knowledge of the Medi Spa business transactions.

I have treated thousands of happy patients and dozens of Cardiologists, Internists and Dermatologists who refer patients to me. It's appalling that such statements could be posted on the internet without verifying the truthfulness "Veracity" of these allegations.

I am a patient of Doctor Fretta's, I have used my credit card in his office all the time, if he was guilty of fraud he would not be in business and not be allowed to accept credit cards.  Its funny what people will say when they get caught committing fraud.  There is a patient I heard the staff discussing that went to jail for commiting insurance fraud with the doctors bills.  Could this be the one with all the false allegations?

 I been going to Dr. Fretta for years, he has treated my spider veins (their gone) and I also received some cosmetic injectables as well (I have very few wrinkles for a fifty year old woman).

I tried other doctors and his fees seem to be the most reasonable.  

 Medicare does not cover Plastic Surgery or any other elective surgery!! So what is the real story? I have never had ANY doctor complain to a patient about reimbursement rates so I think you are just angry for any other reason than the ones you stated.