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Litigation develops over weight loss surgery [Lawyers USA]
(Lawyers USA Via Acquire Media NewsEdge) For overweight consumers looking to lose weight fast, the use of lap band surgery as a quick and easy way to a new life can be tempting.
But in some cases, it's deadly.
Preying on the desire to lose weight, entities across the country are engaging in misleading advertising to pull in potential patients and then performing surgeries without meeting adequate standards of care, plaintiffs' attorneys allege.
In California, an enterprise consisting of doctors, surgery centers and a marketing company used billboards and television ads to urge consumers to call "1-800-GET-THIN," accompanied by a picture of a very attractive, slender model.
The ads "play on the susceptibility of a certain population of people," said Alexander Robertson IV, a partner at Robertson & Associates in Westlake Village, Calif. "They advertise this as a one hour, safe, drive-through surgery."
Robertson currently has several suits pending against the enterprise, including two wrongful death cases, a number of medical malpractice claims and a class action alleging false advertising based on the billboards and television ads.
The suits are not limited to image-obsessed Southern California. Howard L. Wexler, a partner at Herzfeld & Rubin in New York City, is in the discovery phase of a suit against the NYU Medical Center and Drs. George and Christine Fielding, representing the estate of Rebecca Quatinetz, a 27-year-old woman who allegedly died as a result of undergoing lap band surgery.
The lap band procedure is "being promoted as a very minor thing and in reality, it is a surgery with anesthesia and the potential for all kinds of complications," Wexler said.
"The surgeries are being marketed as if [they are] toothpaste or tooth whitener and people can come in and they will magically get their tummy tied and be forever glamorous and beautiful," he added. "The public is not getting a square deal."
'Surgical mills'
The Food and Drug Administration has approved two different lap band products: the Lap-Band, made by Allergan, and the Realize Adjustable Gastric Band, manufactured by Ethicon Endo-Surgery Inc.
Both bands are placed around the upper part of a patient's stomach to create a pouch, which limits the amount of food that can be eaten at one time.
Originally, when the FDA granted approval for the devices in 2001, their use was limited to patients 18 years old or older, with a BMI (body mass index) of at least 40 or a BMI between 35 and 40 in combination with a related health condition like type 2 diabetes, high blood pressure or heart disease.
In February 2011, the FDA said that Allergan's Lap-Band could be used for patients with a BMI of at least 30 who also have a health condition related to their obesity.
But those standards are not always closely followed, attorneys allege.
Wexler said his client, Quatinetz, was "borderline" in meeting the FDA standard for the lap band procedure, had an abnormal electrocardiogram as part of her pre-operative testing and did not receive appropriate post-operative treatment, leading to her death.
He characterized the defendants in his suit as a "surgical mill," alleging in the complaint that the doctors "actively marketed and promoted [the lap band procedure] to induce patients, including decedent, to undergo life-threatening surgery, without proper regard for foreseeable risks to their health and safety."
Lawrence W. Rosenblatt, a partner at Aaronson Rappaport Feinstein & Deutsch in New York City who represents the defendants in the Quatinetz case, did not return a call requesting comment on the suit.
In the California suits, Robertson represents the families of Laura Faitro and Ana Renteria, who both called 1-800-GET-THIN after seeing the ad campaign. One billboard read "LOSE WEIGHT WITH THE LAP- BAND! SAFE 1 HOUR, FDA APPROVED 1-800-GET-THIN," while another proclaimed "MARCIANO LOST 125 POUNDS; LAP-BAND WEIGHT LOSS REVOLUTION! CALL 1-800-GET-THIN!"
An accompanying website urged readers to call in and "let your new life begin."
Both Faitro and Renteria called the hotline and attended a free seminar held by the defendants. They were then referred to surgical centers owned by the Omidi brothers, Julian and Michael, also named as defendants in the suits.
Days after their surgery, both women went to their local emergency rooms in septic shock, Robertson said, with a "tremendous amount of fluid in the abdominal cavity and suffering from multi- organ failure."
The wrongful death suits contend that the outpatient surgical centers are a "house of horrors," Robertson said. "They re-use and don't sterilize the surgical instruments and they cut corners wherever possible to increase profits."
Robertson's other suits include medical malpractice cases against the same defendants - where the plaintiffs had bad surgical outcomes and had to have their lap bands removed or receive emergency medical care - as well as the false advertising class action.
John Blumberg, of the Blumberg Law Offices in Long Beach, Calif., has also filed a wrongful death suit against 1-800-GET-THIN and its surgical centers and doctors. The deceased, Tamara Walter, was "most likely not a candidate to have the procedure in an outpatient facility because of certain risk factors and medical conditions," Blumberg said.
In addition to wrongful death and medical malpractice claims against the doctors and surgical center, Blumberg's suit focuses on the promises made at the free seminar Walter attended, alleging that false representations were made about the standard of care that she would receive.
"They essentially said she was going to get top quality everything," when in reality Walter received substandard care and died as a result a few days after her surgery, Blumberg said.
A call made to Robert Silverman, president of 1-800-GET-THIN and attorney for the defendants, about the litigation was not returned.
FDA steps in
In late December, the Food and Drug Administration sent warning letters to 1-800-GET-THIN and eight related surgical centers, cautioning the recipients about their misleading advertisements.
The ads failed to properly warn consumers about the risks of the surgery, the agency said, instead touting the procedure as an easy weight loss tool.
"[T]hese advertisements do not adequately state the Lap Band's relevant warnings, precautions, side effects and contraindications," the FDA wrote.
The letters will strengthen the false advertising class action, Robertson said, adding, "We applaud the FDA in taking this action and are interested in what - if any - changes will be made by the defendants."
The letters may also lead to more suits. Wexler said he is aware of several other firms looking into cases in his area. And Robertson said that given the high number of surgeries performed, the potential for plaintiffs continues to grow.
During the course of discovery, he said the plaintiffs learned that in the first 15 months of the advertising campaign, more than 100,000 consumers called the hotline, resulting in over 10,000 surgeries. Each of the eight surgery centers performs seven, eight or even more procedures each day, Robertson said. "That is a tremendous amount of surgeries."
(c) 2012 ProQuest Information and Learning Company; All Rights Reserved.
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