A 64-year-old certified nurse’s assistant saw TV ads for “Lifestyle Lift” – pitched as relatively quick and painless, unlike traditional cosmetic surgery. She called an 800 number and got a brochure in the mail.
The brochure claimed the Lifestyle Lift was “a minor one-hour procedure with major results.” The procedure was “exclusively designed to improve jowls, frown lines, wrinkles, and loose neck (turkey neck) and facial skin” and “requires no dangerous general anesthetic.” The procedure was said to produce “Immediate same day results with minimal bruising or swelling.” Patients could “Return to work quickly vs. traditional procedures.”
When she and her husband arrived for a consultation at Seattle Plastic, they were shown a video featuring “before” and “after” pictures of women who had reportedly undergone the Lifestyle Lift. The video repeated the claims made on the television commercial: the Lifestyle Lift was a simple procedure like going to the dentist, and it would “take 20 years off your face.”
Lifestyle Lift has developed training materials for “physician consultants” who meet with the prospective patients. The consultants are taught to “Close and Create Urgency.” One technique is to pretend there are only a few openings available in the time frame desired by the prospective patient, and to say the schedule is completely full for several months after that.
Lifestyle Lift advertising is designed to attract customers who are wary of traditional cosmetic surgery, thinking it too invasive and painful. A letter sent to Lifestyle Lift physicians tells them, “Remember, most patients come to the Lifestyle Lift to avoid all that is involved in a full facelift (anesthesia, recovery, pain, swelling, loss of work, price, etc.).”
Physicians in Lifestyle Lift centers are told that when meeting with “patient prospects,” they “must use only approved Lifestyle Lift pre and post op forms and literature. The use of any unauthorized forms or literature is prohibited.”
The procedure turned out to be much different than advertised. In reality, the Lifestyle Lift is a traditional cosmetic surgery procedure.
Just before the operation began, the woman signed a four-page form entitled “Informed Consent: Lifestyle Lift.” She signed a similar form for the add-on “Aspiration Lipectomy.” The forms describe each procedure and list the risks.
She awoke the night after the surgery in bad pain. She returned four times in the following week to have fluid buildup aspirated from her face. When the bandages came off, her face “looked like a blowfish” and was black and blue. A week after the surgery, when she complained of intense pain behind her ear, a different doctor at Seattle Plastic gave her a cortisone shot that was so painful “it almost made me pass out.” The pain subsided, but she continued to experience swelling, and she developed a lump on her right cheek. She did not go back to the Lifestyle Lift clinic.
She underwent a second surgery with a different physician to correct the problems. She ended up with numbness in one cheek and deformed earlobes. The risk that these conditions might result from Lifestyle Lift surgery was specifically mentioned in the consent forms she signed just before the surgery.
Because of this a jury found that the doctor and his clinic had obtained informed consent and were not liable.
The trial court had already dismissed consumer protection claims against all defendants prior to trial. The woman appealed dismissal of the consumer protection claims against Lifestyle Lift and Seattle Plastic.
The Washington Consumer Protection Act does not apply to personal injury or medical malpractice claims. The statue does, however, apply to the entrepreneurial aspects of professional services, including medicine.
Therefore the Court of Appeals ruled that the Consumer Protection Act did apply to Lifestyle Lift. Lifestyle Lift is essentially a marketing business, and not a medical provider – as Lifestyle Lift itself had argued. The Consumer Protection Act prohibition of deceptive acts applies.
The Court of Appeals also ruled that the Consumer Protection Act applies to the clinic Seattle Plastic as well. Seattle Plastic agreed to use Lifestyle Lift literature exclusively, showed the patient as deceptive video, and in cahoots with Lifestyle Lift engaged in a “long course of materially misleading conduct.”
If you feel you have been deceived by false advertising you should consult with an attorney.
Note that this case illustrates that bad results from a medical procedure alone certainly do not automatically equate to medical malpractice. The doctor in this case was not liable. But, if you believe you may have a medical malpractice claim you should seek the advice of an attorney.
By personal injury attorney Travis Eller.
Williams v. Lifestyle Lift, ____ Wn.App. ____ (2013).