Getting Weight Loss Centers to Fork Over

Now that bathing suit weather is just around the corner, you may be one of 65 million Americans who doesn't like the way you look.

And that spells a four-letter word: DIET.

Some buy reduced-calorie food products; others enroll at weight loss clinics; some even buy diet pills, go on liquid fasts or try gimmicks such as the Gut Buster, the Fat Magnet or the slenderizing space suits you might see advertised int he back of popular magazines.

For the serious dieter, these things may actually work. But, unfortunately, for some others it may mean disaster.

Take, for instance, Sarah Riley of Peoria, Illinois. She looked like she was headed to be one of those success stories, having lost 70 pounds in four months on one of those quick weight loss plans. But, success turned to failure when she developed medical complications, including chronic stomach and abdominal pain requiring several surgeries, including the removal of her gallbladder. Riley v. Physicians Weight Loss Centers, Inc., 192 Ill.App.3d 23, 548 N.E.2d 811 (3d Dist. 1989).

Riley ultimately might have failed on the diet plan; but she was successful in her lawsuit against the weight loss center, defeating a motion for summary judgment for failure to warn of known possible consequences and the hazard of the diet.

Upon her entering the program, weight loss clinic personnel allegedly had said nothing about any possible health risks connected with the diet; and, in fact, radio advertising that promoted the diet as completely safe had prompted her to join.

But dieters who bring lawsuits against weight loss centers generally have difficulty establishing a direct causal link between the obese person's medical problems and the diet, given that obese people generally are at greater risk for many health problems.

For instance, about 10 percent of all North Americans suffer from gallstones. But among overweight people, the figure rises to about 30 percent. An alleged connection between these programs and gallstones has prompted nearly 1,000 lawsuits against NutriSystem alone. But many judges and juries have found that the plaintiffs' gallbladder ailments were more likely caused by the person's obesity and not the diet.

In fact, in Canada, NutriSystem reportedly countersued a plaintiff for defamation; and the company received both public apologies and financial compensation. The key to a plaintiff's defeating defendant's motion for summary judgment is to establish a scientific basis linking the injured's medical problems to the diet through medical experts.

Plaintiffs have tried other theories, including negligence, fraud, reckless misconduct and violation of trade practices. Many courts have been reluctant, though, to allow strict liability or breaches of express and implied warranty claims because the allegations are lodged against a company that offers services and not for a defect in a product.

Americans have been witness to a dramatic rise in obesity over the past 10 years. Considering most people put 11/2 tons of food into their mouths each year, according to nutritional scientists, the time certainly has come to pay attention to the $33-billion-a-year diet industry.

But, just who is monitoring the industry? Often the "diet counselor" behind the desk is merely a salesperson, not a medically qualified supervisor. The surge in popularity of such quick weight loss programs led one congressman a few years ago to conduct hearings into the health risks, false advertising and profiteering of the nation's weight loss industry. Now Sen. Ron Wyden (D-Ore.) told The New York Times that this field is "riddled with hucksters who ply their dubious wares and their miracle cures." As chair of the House Subcommittee on Regulation, Business Opportunities and Energy in 1990, he pushed for hearings on the safety and efficacy of weight loss programs with the goal of trying to implement stricter standards.

Upon a congressional recommendation, the Food and Drug Administration commissioned a comprehensive study of the long-term effects of over-the-counter diet pills to determine if they should be dispensed by prescription only.

In the meantime, the Federal Trade Commission investigated deceptive advertising surrounding very low-calorie liquid diets. The resultll claims in advertisement and labels about the safety of the product must be substantiated and must include the statement, "For many dieters, weight loss is temporary."

But the FTC's bite is not ferocious because it is authorized to act only on fraudulent advertisements and not evaluate products or qualifications of personnel.

One thing's for sure. It's scary when we have to take the word of Tommy LaSorda, Cindy Williams, Mel Torme and other Hollywood stars on the legitimacy and success of these weight loss clinics.