Thursday, March 4, 2010

L.A. Times Article On Lap Band Surgery Centers: What Other Legal & Consumer Issues Are Raised Here?

The Los Angeles Times has recently run two articles on TopSurgeons, its recent regulatory issues and the limited jurisdiction that the State of California has over freestanding ambulatory surgery centers. Free-standing surgical centers owned by a physician are exempt from licensing by the Department of Public Health.

Here is a link to the March 4, 2010 article (which links to the writer Michael Hiltzik's prior article):

Lap-band promoters' troubled history -
(photo is from the L.A. Times article)

The L.A. Times article is trying to protect the consumer which I applaud. However, I question whether the writer understands the business well enough to give advice to the consumer or State on what needs to be done to better regulate free-standing surgery centers or companies such as TopSurgeons.

I think the real issue here is that a company is advertising aggressively directly to consumers for lap-band surgeries. The company then refers those potential lap-band patients to physicians who, in turn, perform the surgeries in centers which may be owned or affiliated with the referring company. This is what I see as the real crux of the issue - even in terms of better protecting the consumer. The surgery center accreditation is the tip of the iceberg.

So if I drive by and call the 1-800 number, is a doctor employed by TopSurgeons going to perform the surgery? No, not to my understanding. TopSurgeons is going to "refer" the case to a physician who will meet with the patient and evaluate whether he or she is a candidate and then this physician performs the surgery. This physician is under the jurisdiction of the Medical Board by the way.

Then usually other big issues will be:

(1) Who provides the financing for the patients who want these surgeries?
(2) What is the business relationship between the physician who performs the surgery and TopSurgeons?
(3) How does the surgeon decide which surgery center to use? and
(4) What is the business relationship between the referring agency TopSurgeons and the surgery center?

The purpose of laws prohibiting referral fees is to ensure that patients are referred to the best place or physician and not because someone has a business relationship with the referring business. Who do I want to be referred to? Best lap-band surgeon in L.A. or a second-rate or poorly trained one that pays fees to a company that advertises on billboards and the Internet.

Now if the best lap-band surgeons are paying for advertising - that's great but that is what the consumer needs to know. Some consumers assume that all physicians are created equal. It's like any other profession in that some are more experienced than others. Bariatric surgery is a real specialty.

What does TopSurgeons do? According to TopSurgeon's website says "TopSurgeons is a premier referral provider of surgical services on the west coast." Thus, it appears that TopSurgeons people (such as Dr. Omidi) are not performing the surgeries. They are referring the business to physicians. Now there could be an issue of whether they are in compliance with the Business & Professions Code on referrals and how those referrals are paid. In addition, they may be referring the business to physicians with the understanding that those surgeries are to be performed in TopSurgeons' centers.

The article conceded that "Robert Silverman, an attorney representing the Omidis, points out that his clients "have no involvement in the performance of weight loss surgeries themselves." However, the article does not explain what role TopSurgeons has perhaps because that information was not provided to the writer.

It is important for patients to know who owns and operates a surgery center (since those fees often greatly exceed the surgeon's operating fees). In other words, surgery centers can be where the real money is made in health care.

It is critical for patients to know whether the surgery center has its accreditation. It appears that the present surgery center referenced in the article is certified by the Joint Commission.

It is critical for patients to know who will be the anesthesiologist and what the plan is if there is a complication that requires hospitalization.

It is also important for the patient to know the physician and how he or she decides which surgery center to select. Is the surgeon picking the best free-standing surgery center? Or is the physician selecting a surgery center that refers him or her the surgeries?

For the record, I have no involvement with TopSurgeon or anyone affiliated with it and have never represented them.

If you want real protection for the consumer -- understanding the facts is important. The article gives some of the facts but does not appear to understand how the business is run. The article discusses "the people behind TopSurgeons" who according to the article "are the Omidi brothers -- Julian, whose medical license was revoked in 2009, and Michael, who was placed on three years' probation for gross negligence in 2008, according to the Medical Board of California." However, neither of those men are performing surgeries.

The article claims that "TopSurgeons attracts customers in part by pitching the lap-band to people who, according to conventional medical guidelines, shouldn't need major surgery to shed weight." The article does not mention that a physician will have to make a determination whether the patient meets the medical criteria for having lap-band surgery. This would not be up to the Omidis or TopSurgeon but to the physician performing the surgery.

For health care providers, they need to ensure that their referral arrangements with surgery centers and companies that advertise (on the Internet and elsewhere) comply with California laws prohibiting the giving of any consideration (money or other things of value) for the referral of a patient. See, for example, California Business and Profession Code Section 650.

Remember as well that payment for advertising is different than payment for referrals but legal advice is needed to determine where the line is between advertising and referral fees. By the way, the District Attorney's Office and Attorney General's Office have jurisdiction over everyone (physician or not) since violation of such laws is a misdemeanor or felony.

Should you have any questions regarding your own situation or this post, you can email physician attorney Tracy Green at Green and Associates is located in downtown Los Angeles, California and focuses their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing health care providers. Ms. Green is a member of the Board of Directors of the California Naturopathic Doctors Association. The firm website is:

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