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Law Suit Filed against Advertising Company 1-800-GET-THIN Claims Fraud and Deviation from the Applicable Standard of Care

The family of a California woman who died three days after receiving weight loss surgery filed a law suit September 2, 2011 against the advertising firm and physicians alleged to be responsible for the decedent’s death. Although the classification of the allegations was not made known, according to the information released by DaillyBreeze.com, it is likely that the family is seeking to recover for fraud and medical malpractice. According to the complaint filed by the family’s attorney, John Blumberg, the care received by the decedent “fell below the applicable standards of care,” causing her death. Although the family is seeking damages against the doctors for medical malpractice, the amount of damages sought is unspecified.

On December 26, 2010, three days after having a Lap-Band device surgically implanted, Tamara Walter passed away. Ms. Walter underwent surgery at an outpatient clinic located in Beverly Hills, California. According to the Los Angeles Times the clinic has operated under several different names, including Beverly Hills Surgery Center. The clinic is now known as New Life Surgery Center. The family’s lawsuit is not directed against Allergan Inc., the maker of the Lap-Band device, which is a tube that is surgically placed around the stomach to discourage overeating. The targets of the lawsuit are 1-800-GET-THIN, an advertising company, and two physicians, Dr. Atul Madan and Dr. Daniel Shin.

The crux of the complaint against the advertising company is that the company fraudulently induced Ms. Walter into receiving the surgery that ultimately led to her death. The complaint alleges that the advertising company, along with another firm called Top Surgeons, LLC, solicited patients with advertising slogans such as “Top Rated Surgical Specialists,” “expert physicians, nurses and other trained personnel,” and “state-of-the-art facilities” with an “unmatched safety record.”

According to the lawsuit, these claims were fraudulent because at the time these statements were made, the firms knew that at least one of the physicians involved with Ms. Walter’s surgery was under investigation by the Medical Board of California as a result of a 2009 misdemeanor criminal conviction, and that the surgery center where the operation was performed “had a history of documented deficiencies and its accreditation had been refused or revoked by more than one accrediting agency.”

The physician who the lawsuit claims was under investigation at the time of the surgery was Dr. Daniel Shin, the anesthesiologist who treated Walter. Shin is also a defendant named in the suit. The crux of the complaint against Shin is that he provided Ms. Walter “suboptimal” care, which “fell below the applicable standards of care” by leaving Ms. Walter in the care of a nurse during her recovery from the surgery. The family’s lawsuit is supported by an autopsy report released last spring that found Walter’s anesthesiologist, Shin, provided “suboptimal management” of her sleep apnea and pressure from swollen lungs.

Although, as of yet, neither of the physicians named in the suit have made a statement regarding it, attorneys representing Top Surgeons, 1-800-GET-THIN and the Beverly Hills Surgery Center stated to DaileyBreeze.com that the lawsuit filed by Walter’s family “appears to be nothing more than baseless and false allegations which at the time of trial will be proven to be false.”

Family may have a case against the two physicians if they can prove that a deviation from the standard of care occurred, which is one of the standards necessary for a plaintiff to sustain a medical malpractice case. However, it may be more difficult for the family to prevail against the advertising firm. This is so, because according to the attorney for 1-800-GET-THIN, the advertising company had not yet been established at the time the family claims Walter called the number. According to the advertising company’s attorney, Robert Silverman, “There is no way humanly possible that Ms. Walter in November 2009 relied on any statement by 1-800-GET-THIN as there was no 1-800-GET-THIN marketing information in the public domain at that time.”

No court hearings have been scheduled as of yet regarding this lawsuit. However, it is my hope, as a medical malpractice attorney who handles claims of behalf of families like the Walter family, that they are successful, and that hopefully, this lawsuit helps prevent others from suffering as Tamara Walter did.