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Sunday, January 22, 2006

Byline: MICHELLE NICOLOSI P-I investigative reporter

Five years ago, Seattle-area resident David Scott Kelley joined the millions of Americans who have flocked to cosmetic surgeons for a new nose, thinner thighs or a stronger chin. He signed up with Seattle dentist and doctor Thomas Laney for liposuction on his neck, and for surgery on his nose and chin.

Laney is formally trained as an oral surgeon, but offers a broad spectrum of cosmetic surgeries, including breast augmentations, tummy tucks and full-body liposuction. He said he learned to do cosmetic surgeries mostly through weekend and weeklong classes offered in surgical suites and hotels around the country.

In Laney's surgical suite on Broadway, just down the street from the bustle of Capitol Hill, Kelley's initial surgery went as planned. He was awake and recovering when a swelling developed on his "lower face." Laney - a former member of the state dental board - took Kelley back into surgery to find the source of the bleeding. Within hours, Kelley was dead.

Laney does not have many of the qualifications some in the medical establishment consider a prerequisite for performing many of the surgeries he's doing: He did not complete a residency or fellowship in this field and does not have privileges to do below-the-neck cosmetic surgeries in any hospital.

A prominent national oral surgery society says it's very unusual for oral surgeons to perform below-the-neck cosmetic surgery. Laney said his training path is "not traditional" but perfectly acceptable, and that he is very good at what he does.

Kelley's death case is one of nine Laney settled out of court over the years, with payouts totaling nearly $1 million to patients who said Laney had botched their liposuction, nose job and jaw surgeries, among other things.

Laney has been sued 10 times on care-related matters. He won the one case that went to trial, and another case was dismissed. The rest settled out of court.

The medical and dental boards reviewed each of the lawsuits - plus other complaints filed with the boards. All of the cases were closed without sanctions, except the Kelley case.

"He had an amazing string of cases where he had actually paid out on the claims," said attorney Corrie Yackulic, who represented a patient in one of the lawsuits. "At the brink of trial, his insurer paid out," she said.

Laney is "a piece of work," said attorney Jane Fantel, who handled another lawsuit against Laney that settled out of court. "I am not barred from telling you that he's a piece of work."

Fantel and her client are barred, however, from discussing her case against Laney because of the confidentiality agreement that was signed when it settled. Laney's insurer paid $150,000 to settle that lawsuit, which involved a woman who was hospitalized and diagnosed with an infection and profound anemia after Laney performed a large-volume liposuction on her abdomen, hips and thighs, documents show.

Laney said he does have a "high" number of lawsuits, but said that "goes with the territory" when you're dealing with patients with high expectations, and with area doctors who are disgruntled that you're working in an arena they consider their territory - doctors who in some cases urged patients to sue. "Regrettably, litigation is typical and expected in this type of work," he wrote in a response to questions. Laney said his number of lawsuits is "near the industry standard." (See Laney's complete written response online at seattlepi.com/specials/dentists).

Most of Laney's cases and lawsuits deal with cosmetic surgery complaints. Laney has had few complaints about his dental work.

Though a staff report for one of the complaints filed against Laney says he "has had an unusually large number of past complaints that have all been closed," the state's credential-check Web site only mentions one of those complaints - the Kelley case. (www.doh.wa.gov)

The state only posts information about complaints that result in sanctions.

Much of Laney's history - and the history of many other dentists and doctors - is hidden from consumers, who often have no way of learning about the settlements that are paid to settle lawsuits.

In most cases, patients and their attorneys sign confidentiality agreements and are not allowed to comment on the lawsuits or settlements. Court documents say only that the case has been resolved - and do not include information about settlements. Some state documents do have information about malpractice settlements, but that information is not easily accessible to consumers.

Some critics say consumers should have access to much of the information that is now confidential or not easily accessible, including lawsuit settlements, results of confidential peer reviews and information about complaints. (See accompanying story)

In many states, such as Oregon and Louisiana, consumers do not have a right to information about complaints that close without sanctions. In others, such as Washington and Arizona, consumers do have access to information about complaints closed without sanctions. In Washington, consumers can call the state to ask how many complaints a dentist has on his record and how they were resolved. They can also ask for copies of the complaints - including those that close without sanctions.

Some say the state should make that information even more easily accessible by publishing it on the state Web site. Others say it would be unfair to publish details of complaints that don't result in sanctions. Many complaints are meritless, and some are filed by people looking to get out of paying their bill - or with an ax to grind. Once a dentist has been found not to be at fault in a complaint, it's not fair to publish the details of that compliant - even in cases involving serious injury or death, they said.

A number of Laney's complaints and lawsuits strike a similar refrain, saying Laney did too many operations at once, left patients under anesthesia too long, performed surgeries that were too extreme - that over and over again he simply went too far.

Laney said the "did too much" argument is a common tactic used by attorneys looking to make a case against cosmetic surgeons. He said he does like to do "complex cases," but that he does not do anything unsafe, and is not overly aggressive.

"I treat every patient with care and I have a lot of expertise," Laney said. "I care about the patient first."

The settlement information in Laney's state disciplinary file offers a rare look at settlements that typically are kept secret. Laney said that in each case, he denied any wrongdoing, and the settlements were paid to avoid the cost and complications of trial.

"In the lawsuit cases, the standard of care for my patients was upheld with testimony from experts and no liability was assigned," Laney wrote in an e-mail.

Although a lawsuit was never filed, $225,000 was paid to settle the case involving Kelley's death. The expert hired by attorney Patrick LePley wrote in his assessment, "In my experience, many surgeons would be concerned about the risks of performing so many potentially airway-threatening procedures at the same time." The settlement was paid on behalf of Laney and his nurse.

$90,000 was paid to settle a lawsuit that alleged Laney had botched a nose surgery. The "damage to her nose is unbelievable in scope," a local plastic surgeon who consulted on the case wrote. Laney took out too much of the nose's structure, he wrote. "The damage inflicted on this patient by Dr. Laney is far beneath the standard of care in this or any other community," he wrote.

$300,000 paid to settle a lawsuit filed by a Puyallup woman who said she was in "unrelenting pain" after Laney performed eight procedures on her in an operation that lasted more than seven hours, including surgery on her chin, neck, nose, upper and lower eyelids and brow, documents show.

The state staff report on the case said the patient had a history of "open heart surgery, fibromyalgia, anemia, pneumonia, stomach ulcers, back pain and kidney infection," and questioned whether she should have had the numerous cosmetic procedures. "Was too much surgery performed on this patient at one time?" the staffer wrote. "I have questions regarding patient selection for the number of surgeries performed."

$150,000 paid to settle the liposuction lawsuit brought by Fantel's client. According to the records, the patient developed severe anemia and sepsis after the procedure. As with other settlements, this one "was reached to avoid cost and complexity of trial," a report to the National Practitioner Databank states. "Negligence is expressly denied."

Laney said in the deposition on the case that he removed 61/2 liters of fat in the operation. Removing that amount is "at the top end of my comfort zone," he said. High-volume liposuctions are associated with a higher level of complications, according to the American Society of Plastic Surgeons.

Laney said the science of liposuction was evolving at the time he performed this procedure, and "there weren't any real guidelines" on how much fat could safely be removed at one time. Since then, new safety thresholds have been established, and Laney said he has become more conservative - as have many other cosmetic surgeons.

Kelley's death

Records detailing what happened to Kelley in September 2000 show that the second surgery to find the source of the bleeding took longer than expected. Kelley's vital signs plummeted, and Laney's staff tried one tactic after another to stabilize him. Fifty-four minutes into the second procedure, Kelley stopped breathing.

"He's trying to find a bleeder. This was supposed to be quick and easy. It turned into a 45-minute thrash," Dr. Gregory Allen said in deposition. Allen was hired by the state as an expert witness.

"CPR was started six minutes after breathing ceased," the medical board's agreed order on the case said. Kelley was rushed to Swedish Hospital. He died at 2:40 a.m. the next day.

The medical and dental boards found that Laney's care constituted "unprofessional conduct," a legal definition that includes negligence, malpractice or incompetence, according to Patti Latsch, deputy director of the state Health Professions Quality Assurance office, which licenses and regulates dentists and 56 other professions.

Neither board restricted Laney's license. Instead, they fined Laney a total of $4,000 and allowed him to return to practice. "Dr. Laney denies the Department's allegations of negligence," a memo filed on his behalf with the state said.

Experts who reviewed the case said several mistakes were made in Kelley's care. Waiting six minutes before starting CPR is "egregious," expert Allen said in his deposition. "This was a lousy resuscitation. And the patient suffered for it.

"In my opinion this was a preventable death of a previously healthy man," Allen wrote in his review of the case.

Another reviewer from Portland said the handling of the case was "appropriate and skillful," but John Davis, past chairman of the dental board, said in his written review of the case that the analysis was "a very poorly written assessment I recommend that no credibility be given to its contents."

The nurse anesthetist who worked on the case was partly responsible, some experts said. "There is no doubt that the responsibility for the anesthesia and the resuscitation is a shared one since the actions of the anesthetist, at least according to her written statement, were clearly influenced by the respondent's wishes," wrote Dr. George Heye, a medical consultant with the state Health Department.

Nurse Jennifer Lent said in her statement that, "I did raise questions about the proposed technique, but I was ultimately overruled. Having only been employed for one week, I had not yet developed a professional relationship with him and was easily intimidated by him," according to state documents.

Expert reviewer Allen said in deposition, "It was an error on her part to sedate the patient in the manner that she did. That said, I don't know what pressures she was under from Dr. Laney, who was medically directing her." Allen said in deposition that Laney and Lent shared the responsibility for Kelley's care, but Laney was "ultimately responsible."

Lent could not be reached for comment.

A nursing board statement of allegations filed in July 2002 charged that Lent "failed to provide adequate anesthesia care," saying she had been unable to intubate Kelley, and had not tried to perform an emergency tracheostomy. The case was settled with an "informal disposition," which required her to pay a $1,000 fine and take 40 hours of classes in patient advocacy, assertiveness training and other topics.

When asked about the case, Laney replied in an e-mail that, "In the year 2000, every safety and anesthesia precaution that should have been in place at that time was already in place, including ACLS training, approved facility, periodic safety drills, proper equipment, and appropriate personnel. I utilized a separate licensed anesthetist. This incident from five years ago taught me that, despite all precautions being in place, unpredictable events can occur."

Kelley's death "was a really sad, sad thing," said attorney LePley. "Why did this young man die? This should not have been necessary. It's as bad a situation as I've ever run across."

Davis, the dental board member in charge of the case, said he recommended that Laney be required to perform 25 intubations at a local hospital and other training, but Laney's attorney argued that he had already taken more than 70 hours of class work and had hired an anesthesiologist to handle his anesthesia.

Experts Allen and dentist Douglass Jackson, an associate professor of oral medicine at the University of Washington School of Dentistry, were asked in deposition whether they thought it was OK for Laney to return to practice, considering all the actions he'd taken in the wake of Kelley's death - he'd taken a number of anesthesia and emergency response classes, and had hired a board certified anesthesiologist. Both said yes. Both said the identity of the anesthesiologist didn't come up.

The boards agreed to settle with a fine and a reprimand.

The state's attorneys didn't feel they could win the case if pushed for further sanctions, Davis said. "So they asked the panel to change the recommendations. Where it settled out was based on legal maneuvering and negotiation," he said.

Davis said he "can live with" the compromise that was reached, but has "mixed emotions" about how the case worked out.

"I made my initial recommendation. Does that mean I got exactly what I wanted? No. It may not be to the degree that I wish the sanctions to be."

Davis said board members didn't know at the time that the anesthesiologist Laney hired - Dr. Robert Solomon - specialized in performing experimental drug detox procedures in the basement of a home he had converted into a clinic, and had been investigated for a 1999 death in his clinic that resulted in a $1 million settlement. (See accompanying story.)

Anesthesia-related complications and deaths happen, and they don't always mean the practitioner has done something wrong, Jackson said. If he'd known about the death in Solomon's office he would have wanted to know the facts of that case before answering the question he was asked in deposition, he said.

"I'm sure there would have been much more discussion about that there would have been many, many more questions."

Board members were also not given much information about Laney's background, said Davis. Often, board members are not allowed to see past cases when they're deciding how to sanction a dentist. That background would make it easier for them to make the right decisions about how to sanction dentists who come before them, Davis and other board members said.

When the board sat down to look at Laney's case, they didn't review the details of his numerous malpractice settlements, or his thick file of past patient complaints with the board. They were only able to review the case in front of them, said Davis.

"I'm looking at Laney through a snapshot, I'm looking at that one case," said Davis. "You're not really evaluating him, you're evaluating a specific issue in front of you. That, I think, sometimes is a problem.

"If things have occurred before, all I see is (case) closed, closed, closed. I don't see the detail that was involved. You don't know the specifics of the other cases. We're not provided that information," said Davis. "I remember being concerned about it."

Kelley's father, a pediatrician in Arizona, said he's disappointed with the boards' decisions.

"Anybody can make a mistake in judgment, I don't hold that against any physician," said Kelley's father, who asked not to be named. "But somebody who does it repeatedly and the public doesn't have access to that information, (that) leaves something to be desired from the perspective of protecting the public interest," he said.

Laney is "still practicing, and he's had these other lawsuits against him, and nobody is aware of this," he said. "This disaster happened and he is not being held accountable for it."

Scope of practice

Like many practitioners now performing cosmetic surgery, Laney did not get medical school, residency or fellowship training to do many of the cosmetic procedures he now performs. Laney was trained as an oral surgeon, completing a dual degree program that gave him both a medical and dental degree. For the most part, he said he learned below-the-neck cosmetic surgeries in weekend and weeklong courses held around the country - sometimes in surgical suites, and sometimes in hotel rooms, where demonstrations are done on cadavers.

"My specialty in cosmetic surgery is based upon a large number of continuing education courses, operating with other people," he said in deposition for one of his lawsuits. "I've taken numerous hands-on courses."

For example, when he decided he wanted to start adding breast augmentations to the menu of offerings at his clinic in 1996, Laney said he attended five or six classes ranging from three to five days each. He then performed a number of breast surgeries in his clinic under the watchful eye of a doctor experienced in the procedures. And then Laney began offering the procedure to customers.

"I added breast surgery to my portfolio and I do a really good job at it," Laney said. "There was nothing cavalier about what I did. My pathway is not traditional. Is it valid? I certainly believe it to be so."

Officials at the American Association of Oral and Maxillofacial Surgeons say it's highly unusual for dual-degreed oral surgeons such as Laney to perform full body procedures, and they encourage their members not to do this kind of work without traditional training, such as a yearlong fellowship in an accredited program.

Dual-degree training programs that oral surgeons complete primarily train them to perform surgeries above the neck, said Randi Andresen, AAOMS associate executive director for advanced education and professional affairs. She said she is aware of fewer than a dozen oral surgeons in the country performing full-body cosmetic surgery procedures like Laney does.

"It's a very, very small number," she said.

"Typically oral and maxillofacial surgeons are not doing procedures below the neck," said Carol O'Brien, general counsel for AAOMS. "We would not advocate any of our members or fellows doing these procedures" unless they had extended formal training in performing them, such as a yearlong fellowship with a plastic surgeon, she said.

Advocated or not, a Washington state doctor with a medical license can perform any surgical procedure he wants, said Beverly Thomas, program manager at the Health Department's Medical Quality Assurance Commission, which licenses and disciplines doctors. "Currently, we don't have limitations on scope of practice at all," she said.

Many experts say consumers should have surgeries done by doctors who have hospital privileges to perform the procedures they're offering, because privileges mean a doctor's skills have been reviewed by the hospital, and the hospital has found the doctor has adequate training and skill to perform the surgeries.

Laney has oral and maxillofacial surgery privileges at Swedish, but does not have privileges to perform full-body liposuction and other below-the-neck procedures at any hospital, he said.

Swedish will give specialty privileges only to those who have completed an accredited specialty residency program and who are eligible for board certification with an approved board. Laney's "not near any of that," said Dr. Nancy Auer, chief medical officer for Swedish Medical Center.

It used to be that doctors' surgical practices were limited by whether hospitals would give them privileges. But that limitation no longer exists: Many doctors, such as Laney, run their own surgical suites, where they can perform any procedure they like - without asking anyone's permission.

The state Department of Health is now studying whether to propose a new law to create some limits on what can and can't be done in surgical suites, Thomas said.

P-I reporter Michelle Nicolosi can be reached at 206-448-8217 or michellenicolosi@seattlepi.com.

FOR MORE INFORMATION

To check up on a dentist or other health professional, go to the state Department of Health's Web site at www.doh.wa.gov and click on "Provider Credential Search" on the left-hand side of the page. Or call the DOH at 360-236-4700.

You can also see all resolved complaints against Washington dentists since 1998 at the Seattle P-I's Web site at seattlepi.com/specials/ dentists/db.asp.

You can make a complaint about a health care provider by calling the DOH at 360-236-4700.

Learn more about filing complaints here: https://fortress.wa.gov/doh/hpqa1/d isciplinary/complaint.htm.

You can also share your stories with the P-I by calling 206-448-8217.

COPYRIGHT 2005 Seattle Post-Intelligencer. All rights reserved. Reproduced with the permission of the Dialog Corporation by Gale Group.