Death-Haunted Lap Band Surgery Clinics Call L.A. Coroners Unfair

"Such exculpatory evidence was consciously and recklessly disregarded by the Coroner's Office by allowing OneLegacy to harvest Rojeski's body for organs and tissue without significant limitations. Such evidence, which is now destroyed, cannot be obtained by other means. Therefore the Coroner should have denied harvesting of tissue from the lower extremities. Further, the Coroner should have also denied harvesting of the heart and lungs as well, but did not," according to the complaint.

The Coroner's Office also misreported Rojeski's heart as normal during the autopsy, ignoring "calcification of the heart valves and moderate aortic regurgitation," according to the complaint. Then officials failed to embalm Rojeski - which might have preserved evidence, the clinic claims.

"Any attempt to exhume Mrs. Rojeski's body for a reexamination would be utterly useless, thereby permanently depriving Valley of this evidence. Such spoliation of evidence, owing to the unsupervised tissue harvesting and failure to embalm the body, constitutes multiple violations of law enforcement's duty to preserve evidence that might be expected to be exculpatory as well as play a significant role in any investigation," Valley Surgical says in its complaint.

A month after Rojeski died, the Coroner's Office received an anonymous letter claiming the clinic's oxygen tanks were empty, fluids had leaked on the floor, the anesthesiologist recorded false information, monitoring equipment was broken and the time of Rojeski's cardiac arrest was falsified. The clinics dispute that.

The Coroner's Office assigned defendant Selma Calmes as anesthesia consultant in the case, an appointment Valley Surgical protested.

"On or about Dec. 1, 2011, prior to the Coroner's site inspection, Valley's counsel Robert Silverman sent a letter to the Coroner's Office protesting Dr. Calmes as the consulting anesthesiologist for the Rojeski investigation. The letter noted that Dr. Calmes had a publicly documented professional bias against ambulatory surgery centers. Dr. Calmes publicly stated in a previous autopsy report issued by the Coroner's Office in January 2011 that she considered any ambulatory outpatient facility to be an inappropriate platform for gastric banding procedures for patients with sleep apnea. Despite her obvious bias, the Coroner's Office refused to utilize a different anesthesiology consultant and insisted that the inspection would go forward with Dr. Calmes in attendance," Valley Surgical claims in its complaint.

The Coroner then authorized what the clinics claim was an illegal subpoena signed by defendant John Kades, ordering Valley Surgical to allow a search of its premises and equipment.

The clinics claim the results of the search refuted every aspect of the anonymous letter - proving that its equipment had been recently serviced and that two other gastric banding procedures had been done in the same operating room as Rojeski, 45 minutes later, without incident.

For four months after the search, Valley Surgical says, it heard nothing from the County Coroner. Even after two employees filed the whistleblower lawsuit, the County Coroner refused to speak with the clinics' owners, citing a "security hold" on the investigation, according to the 42-page complaint.

But despite the security hold, Valley Surgical claims, the Coroner's Office leaked details of its investigation to the media. The Los Angeles Times and the Orange County Register both published stories on April 6, 2012, stating that the Coroner's Office had referred the Rojeski investigation to the LAPD homicide division.

Months later, Calmes breached the security hold by discussing two lap band deaths she was investigating at a presentation in San Francisco called "Ambulatory Surgery Disasters," according to the complaint.

"Her charts and slides intentionally and openly criticized surgery centers working with 1-800-GET-THIN, which include plaintiff Valley. She violated the Coroner's security hold on the Rojeski investigation by intentionally disclosing unconfirmed information regarding the Rojeski death and repeating her discredited professional opinions regarding bariatric surgeries in ambulatory surgery centers. In fact, she even put up a billboard of 1-800-Get-THIN's advertising in her speech and related that there were two related lap band deaths. Obviously, one of those two deaths was the death of Paula Rojeski, and as of September 2012 this matter was still under investigation and the coroner's security hold," Valley Surgical says in its complaint.

With Coroner's Office investigation of Rojeski's death on hold and its star anesthesiology consultant giving speeches at San Francisco's swanky Hotel Nikko, Valley Surgical says, it launched its own investigation of Rojeski's death.

This investigation may have come about because of the wrongful death lawsuit Rojeski's family filed against Valley Surgical.

"Valley uncovered a series of medical records which showed Ms. Rojeski had a severely compromised but undisclosed heart condition from her use of Fen-Phen and other weight loss medications during the years 2001-2002, and again in 2009-2010," the complaint states. "In addition, Valley uncovered documents showing that Ms. Rojeski was a lead plaintiff in a civil lawsuit against the makers of Fen-Phen where she admitted to having suffered severe cardiac damage from Fen-Phen usage.

"Not less than 10 times in statements to Valley Medical personnel, the deceased stated she had no prior heart damage when in fact she had filed a lawsuit in 2003 entitled Paula Rojeski v. Wyeth, et al., claiming severe heart injury from her use of Fen-Phen in 2001 and 2002. Ms. Rojeski also concealed from Valley Medical personnel that she commenced taking the prescription weight loss medication phentermine in 2009. In fact, she obtained the phentermine in 2009 from the same physician from whom she had obtained the Fen-Phen in 2002." (Citations to exhibits and Orange County Superior Court lawsuit case number omitted.)

The clinics also claim Rojeski hid a visit to the emergency room only a month before her fatal gastric banding procedure, for high blood pressure, heart palpitations and an abnormal EKG. Valley Surgical says it would never have performed the procedure on Rojeski had it known about her compromised heart.

The Coroner's Office released its final report on Rojeski's death to Valley Surgical in early 2013, after releasing it to the Rojeski family. It ruled Rojeski's death undetermined, stating that it could not rule out homicide as a cause of death, according to the complaint.

The report called Valley Surgical's anesthesiologist and attending surgeon grossly negligent and found that Valley Surgical's actions fell outside the standards of due care.

Calmes stated that the hospital deprived Rojeski of anesthesia for 90 minutes during surgery, though surgical records indicate that the entire procedure lasted only 30 minutes, Valley Surgical claims.

"The records unquestionably indicate the times of the surgery and anesthesiologist's supervision which the coroner's consultant has ignored," the complaint states. "Instead, the consultant fabricated and falsified facts that were patently contradicted by the medical records. Moreover, if the records were so illegible, then Dr. Calmes and the rest of the authors of the Rojeski final report should never have been so adamant and confident in their findings and conclusions."

The clinics claim they hired seven independent medical experts to rebut the opinions of the five doctors at the Coroner's Office. Yet even after the seven presented their findings, Coroner's Office declined to modify or publicly release the Rojeski report.

Valley Surgical claims that its accreditation hinges on that report. It claims that as long as the County Coroner holds on to that report, and refuses to modify its alleged inaccuracies, the clinics' is being harmed.

The Los Angeles Times reported shortly after Rojeski's death that she was not the only person to die within days of undergoing gastric banding at 1-800-GET-THIN clinics.

Willie Brooks died three days after his procedure with peritonitis as a significant cause of death, and Ana Renteria died 10 days after surgery with similar conditions, the Times reported.

Laura Faitro died five days after surgery; her autopsy found a lacerated liver and 3 liters of bloody fluid in her abdominal cavity. And Tamara Walter died three days after her procedure; the coroner attributed her death to "accident due to suboptimal anesthesia care," all according to the Times.

The clinics seek declaratory judgment that the Coroner's Office actions are unconstitutional and want its further investigation into Rojeski's death stopped.

Valley Surgical also seeks damages for violations of due process and search and seizure.

It is represented by Barrett Litt with Kaye, McLane, Bednarski & Litt of Pasadena, and Konrad Trope, with Centurion Law Group of Beverly Hills.

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