In San Diego there is a community of professionals, most of whom earn between $150,000 and $300,000 per year, who are angry, frustrated, and disillusioned. In the past thirty months they have been involved in two acrimonious lawsuits that cost them at least three million dollars and could have cost a lot more. Many fail to return phone calls inquiring about the lawsuits. A few spoke guardedly, but on the condition — repeated time and again — that their names be kept secret. One stated simply, “I’d like to talk to you, but I can’t because that man could ruin me.”
That man is Dr. Dennis L. Brooks, a Philadelphia-based ophthalmologist who currently performs cataract surgery at Clairemont Community Hospital on Mt. Etna Drive. The professionals in question are local ophthalmologists, who are afraid Brooks will sue them again if they speak about him. The physicians’ attorneys were equally cautious. This article, therefore, was written from information contained in more than thirty volumes of public court records now at the federal archive in Laguna Niguel. Unless otherwise specified, all quotations have come from these documents.
The problems started when Brooks came to San Diego in early 1981 and began promoting himself on television and radio as an innovative cataract surgeon who was soon to offer his services in San Diego. The San Diego Academy of Ophthalmology (SDAO), representing about one hundred of San Diego’s 130 eye doctors, alleged he was disseminating false and mis-leading information to attract patients. Furthermore, Academy officials had contacted medical colleagues in Philadelphia and were told that Brooks had a reputation for not ensuring his patients proper post-operative care. The Academy considered this unethical and took measures to stop Brooks’s imminent activities in San Diego. In response. Brooks filed a five-million-dollar antitrust suit against the Academy and three principal members, Drs. Philip Gelber, Leroy Rhein, and Robert Rosen.
This lawsuit, filed on May 5, 1981, was followed shortly thereafter by a counterclaim brought against Brooks by the SDAO, which was joined in the action by the American Academy of Ophthalmology. The local and national Academies sought a court injunction to keep Brooks from disseminating his allegedly false and misleading information. Then, in early 1983, Brooks filed a second lawsuit against ninety-five individual members of the SDAO, and in addition, against the American Academy of Ophthalmology. Together, Brooks I and Brooks II, as they are called, may constitute the biggest antitrust action in medical history. For Brooks, represented here in San Diego first by noted Washington, D.C. attorney Salvatore Romano and later by the San Francisco firm of Alioto and Alioto, victory in the cases seemed certain. A series of Supreme Court decisions, along with a 1979 ruling that made restrictions on advertising in medicine a violation of the Federal Trade Commission Act, assured doctors the right to advertise their services in the competitive market. In spite of these rulings, the local Academy in late 1979 had revised its bylaws’ code of ethics to include “more restrictive” rules regarding advertising, in effect prohibiting its members from any form of advertising except nondescript listings in the telephone book’s Yellow Pages. Under the revised code, and clearly in violation of state and federal law, the local Academy forbade local ophthalmologists from advertising such things as their specialties, educational history, fees for various services, and even whether Spanish was spoken at their offices. From Brooks’s point of view, the Academy simply objected to his efforts at self-promotion and perhaps feared the economic threat he posed to San Diego doctors). In trying to obstruct his practice, the local ophthalmolgists, Brooks felt, had broken the law.
Later, in court, the Academy maintained that it had never objected to Brooks’s promoting himself, as long as he did so honestly. The local physicians claimed that in his advertisements Brooks offered false and mis-leading information to a public that was incapable of distingishing truth from falsehood, and they felt it was their moral obligation to intervene. The cases, which weren’t fully resolved until last August, raised critical and timely issues that concern all physicians and practitioners of other so-called “learned professions,” such as law, engineering, and architecture. “Before 1975 physicians were used to being exempt from antitrust laws and they policed themselves,” says Jeff Shohet, attorney for San Diego ophthalmologist Leroy Rhein. “At the time Brooks filed the lawsuit, no one knew what were the limits of self-policing. This case was on the cutting edge of the law.”
In March of 1981, Dr. Dennis L. Brooks, chairman of the department of ophthalmology at Germantown Hospital near Philadelphia, formally applied for staff privileges at College Park Hospital on Montezuma Road near San Diego State University. Brooks, who claimed to have performed more than 10,000 cataract surgeries by 1981, was, among the general public, probably the most famous cataract surgeon in the nation. He’d written a book called Don't Be Afraid of Cataracts. He’d appeared on The Merv Griffin Show and some twenty-five other television shows. Art Linkletter appeared in television commercials for him, one of which is still aired several times each week in San Diego. Brooks had been a guest on radio shows nationwide, including several with syndicated commentator Paul Harvey. And dozens of newspaper articles had been written about him. To College Park, a small, ninety-nine-bed hospital that went out of business last year. Brooks represented much-needed revenue.
As its title suggests, Brooks’s 1978 book addressed the public’s fears concerning cataracts, and offered an answer. A cataract is a clouding of the lens of the eye that obstructs the passage of light. Nearly everyone over the age of sixty-five experiences this condition to some degree. The elderly in this country remember the days when their own parents or grandparents underwent cataract surgery, which only a generation ago was a traumatizing experience requiring a three-quarter-inch incision on the eyeball and ten days in the hospital. Many people even recall that before sutures were introduced, cataract patients had to lie between sandbags to keep their heads still. In the age of micro-surgery, said Brooks in his book, fear of cataracts is needless. The book endorses a “revolutionary” technique called phacoemulsification (“phaco” means lens, “emulsification” means to reduce to liquid) that uses ultra-sound to make cataract surgery a simple procedure. “Do you know that you can have that cataract removed, quickly and painlessly, even in the space of your lunch hour?” writes Brooks. Here’s how this “lunch-hour” surgery works: a special needle is inserted into the lens through a tiny incision where the cornea meets the white of the eye. Then the lens is turned to jelly by means of ultra-sound, and sucked out through a hole in the needle. Don't Be Afraid of Cataracts was an overwhelming success. Brooks, working out of Germantown Hospital, drew patients from all over the country, each one paying the average surgeon’s fee for cataract surgery, about $1500 (it is now about $2000).
College Park Hospital accepted Brooks’s application for staff privileges and the surgeon was scheduled to begin operating there on April 14, 1981. One month before that date Brooks appeared locally on radio and TV talk shows, including Sun-Up San Diego, where he discussed his book and the techniques he used to perform cataract surgery. On an earlier visit to San Diego, Brooks had asked local osteopath Ronald Friedman to assist him in his operations. However, Friedman, who had worked on the East Coast, believed that Brooks had a poor reputation within the medical community in Philadelphia. He explained frankly to Brooks that he couldn’t risk such a collaboration. He also told Brooks he didn’t approve of his intention not to include in the surgical fee post-operative care for patients who lived outside San Diego and who could not return here easily. Brooks then met with Dr. Barry Zarum and proposed a similar association. Zarum would receive an assistant surgeon’s fee, which would supposedly earn him about $100,000 per year.
Soon after Brooks’s San Diego media appearances in March, Dr. Philip Gelber, president of the San Diego Academy of Ophthalmology, received several phone calls from SDAO members complaining that Brooks was making false and misleading statements. Brooks was telling radio and TV audiences that phacoemulsification offered substantial advantages over other cataract removal techniques. The doctors who called Gelber insisted this was false. Brooks was also suggesting that he was more skilled in the proper surgical treatment of cataracts than were most San Diego ophthalmologists. This, too, was nonsense, they said.
On March 18, 1981 several ophthalmologists, including Drs. Barry Zarum and Leroy Rhein, met at Alvarado Hospital to discuss planning a new eye center. But Dennis Brooks was on everyone’s mind and the discussion turned to Zarum’s possible collaboration with him. Zarum recalls that he sat in virtual silence during the meeting, listening to a barrage of derogatory comments about Brooks. A few days later, at about 10:00 p.m., Zarum received a phone call at his home from Dr. Edward Schechter who, according to Zarum, “went on a diatribe against Dr. Brooks.”
On March 23 a special executive committee meeting of the San Diego Academy of Ophthalmology was held in Gelber’s Hillcrest office to discuss the Brooks issue, which was causing tremendous consternation among Academy members. Zarum and Gelber were there, along with Drs. Lawrence Fine, John Zack, David Edwards, Paul Michelson, and George Tabor. Someone brought several newspaper articles about Brooks, a copy of his book, and two audio tapes of Brooks’s recent talk-show appearances in San Diego. From their review of these materials, it was the doctors’ opinion that Brooks met the definition of a “buccaneer” surgeon, as described by Dr. George Weinstein three years before in The Journal of Ophthalmic Surgery. The buccaneer, Weinstein wrote, is “amoral” and “unethical,” and is in business for “self-aggrandizement and personal gain.” Buccaneers capitalize on the promise of new techniques (notably phacoemulsification and radial keratotomy) and exploit the public. Weinstein felt it was scandalous that buccaneers engage in high-volume “itinerant” surgery; they fly into a city and perform dozens of operations in a few days, then leave town, giving their patients a photocopied “Dear Doctor” letter asking a local physician to perform follow-up care.
The purpose of the March 23 meeting was to decide what to do about Brooks. One issue was resolved when Zarum announced that he had decided against collaborating with Brooks. The reason for Zarum's decision was the subject of debate in the subsequent lawsuits. Zarum had indeed made several calls back East to physicians who knew Brooks and learned he had a poor reputation there among doctors. However, Brooks later argued in court that the Academy had conspired to discredit him in Zarum’s eyes, and that the young physician’s decision was influenced by tremendous peer pressure that constituted conspiracy.
The executive committee agreed upon two courses of action at the meeting: first, Gelber should contact College Park Hospital about Brooks’s performing surgery there. Second, the Academy should take the offensive and wage a media campaign to counter Brooks. Gelber wrote a letter to San Diego’s radio and television producers, asking them to beware of buccaneer surgeons. The letter, accompanied by articles about buccaneers, was released through the Academy’s public relations firm, Lou Reese Creative Communications, on about April 3. Drs. Michelson, Gelber, Tabor, and Rhein appeared on several local talk shows, including Sun-Up San Diego and Telepulse (the late Harold Keen’s TV talk show), warning the public of the risks they would run should they encounter an itinerant or buccaneer surgeon. In addition to Gelber, Dr. Robert Rosen, one of the three principals named in the first suit filed by Brooks, contacted College Park’s chief administrator, Jerry Gillman. Gillman later testified in a deposition that Rosen said it was “highly ill-advised” to let Brooks operate at College Park, and that Gillman “had yet to see the strength of the arm of the Academy of Ophthalmology."
On April 6, at its monthly meeting at the Hanalei Hotel in Mission Valley, the Academy adopted, for the first time in its history, “standards of care” following cataract surgery. So great was the concern about Brooks that this meeting reportedly drew the largest turnout in the SDAO’s history. The resolutions, all of which had direct nearing on Brooks, were as follows: 1) It would be standard practice for the primary surgeon to perform three months of follow-up care; 2) Academy members who supported any type of “itinerant” surgery (e.g., provided post-operative care) would be disciplined; 3) Academy members who saw patients suffering complications as a result of itinerant surgery would send these patients to a central treatment area and legal actions might be instituted against the itinerant surgeon.
Within days of this meeting, Drs. Schechter and Gelber both called Robert Smith, vice president for physician relations at American Medical International, owner of College Park Hospital. The doctors recommended that Brooks, scheduled to operate there in less than a week, should not be allowed staff privileges. On April 9 Gelber had lunch at Mr. A’s restaurant in Hillcrest with Smith, College Park’s chief administrator Jerry Gillman, and the hospital’s chief of staff, Dr. Aaron Lipton. It was at this meeting that Gelber presented to Gillman the infamous “Dear Administrator” letter, which was supposed to be sent to every hospital in San Diego but which, in the end, only went to the one hospital affiliated with Brooks — College Park. It would eventually become the cornerstone of Brooks’s antitrust case against the Academy. In the letter, Gelber expressed the Academy’s alarm over the behavior of “a certain ‘Buccaneer’ surgeon [who] appeared in the San Diego area approximately four to five weeks ago.” Gelber obviously meant Brooks. “The ‘Buccaneer’ surgeon is amoral and unethical,” wrote Gelber, echoing Weinstein’s language, “and appears only to be in business, and I do mean business, for self-aggrandizement and personal gain.” The letter contained other derogatory comments about San Diego’s newly arrived “buccaneer,” and listed the three resolutions passed two days before by the Academy.
Writing this letter, signed by Gelber on SDAO stationery, proved to be a tremendous blunder. When College Park Hospital’s Jerry Gillman first read it at the Mr. A’s luncheon, he saw potential evidence of an illegal boycott and asked Gelber if he’d received legal advice before writing it. Gelber said he hadn’t. For Brooks’s lawyers, the “Dear Administrator” letter was the kind of document one dreams about finding but rarely sees — a smoking gun with the killer’s name on it. “You don’t normally get that kind of evidence in an antitrust case,” said Brooks’s attorney Lawrence Appel of the Alioto firm in a recent interview. “Normally in an antitrust case you’re dealing with [a large corporation]. Their lawyers go through and flush files and sanitize letters and things, so it’s harder to get evidence.” Perhaps even more damaging than the strong language in the “Dear Administrator” letter were the second and third recommendations drawn up at the general meeting. The second one effectively enjoined any Academy member from providing post-operative care to Brooks’s patients, which Brooks later claimed to be evidence of a boycott. The third recommendation offered Brooks evidence of a conspiracy to instigate malpractice suits against him and thus inhibit his ability to compete.
At the lunch meeting Gelber tried to persuade the College Park administrators to prevent Brooks from performing the cataract operations he had scheduled for April 14. Gelber pointed out that the College Park Hospital bylaws required that staff members be located close enough to the hospital to provide continuous care to patients. Brooks, who lived in Philadelphia, obviously could not do so. But Gillman resisted for two reasons: first, because as an administrator of College Park he saw Brooks as a financial boon (every dollar Brooks spent in promoting himself promoted the hospital as well), and second, because he felt it wrong to cancel all Brooks’s patients with only a few days’ notice. Gillman’s later testimony reveals considerable hostility toward Gelber: “He sat there like a Buddha issuing edicts, not hearing, but mostly expounding on how everything was going to be.” A couple of days later, after consulting a lawyer about the risks presented by the “Dear Administrator” letter, Gelber called Gillman and recommended that Brooks be allowed to operate as planned. On April 14 Brooks performed his first surgeries in San Diego, assisted by Dr. Barry Katzman, a young ophthalmologist who agreed to leave his position at Kaiser Hospital in Los Angeles and move to San Diego in order to work with Brooks and to provide post-operative care to patients who lived in the San Diego area. The next day, however, Gillman issued a memo stating that although he was happy with Brooks’s performance and his surgical capabilities, the hospital was temporarily suspending his privileges because “considerable controversy has developed as a result of a resolution adopted by the San Diego Academy of Ophthalmologists [concerning Brooks’s] place of residence.”
In the days that followed Brooks’s first surgeries. Dr. Robert Rosen was particularly energetic in his attempts to block the “buccaneer.” On April 23 Rosen was found secretly reviewing the daily census records of College Park Hospital patients for the date of April 14; these records contained the names of Brooks’s patients. Brooks later alleged in his lawsuit that Academy members had called his patients, made derogatory comments about him, and advised his patients to file malpractice suits against him. A few days later, Rosen called the hospital’s chief of surgery, Dr. Robert Schorr, who was a personal friend, and tried to persuade him to intervene. The transcript of Schorr’s later testimony suggests that the friendship was strained by this call. Schorr testified that he felt Rosen was attacking him simply for being tangentially involved in the Brooks affair. Schorr recalled Rosen telling him that Brooks “ ‘is a bad guy; he is doing bad things and you shouldn’t permit him in that hospital,’ as though I had any power to prevent it. That’s what got me.”
Two other local ophthalmologists, Edward Schechter and Norman Rozanski, also criticized Schorr for not blocking Brooks’s application for staff privileges. One day in the dining room at Mercy Hospital, Schorr recalled, Schechter approached him while he was eating and told him he was ‘‘as immoral as Dr. Brooks.” Schorr says he considered filing a slander suit against Schechter for making that statement in front of other physicians. On another occasion in the same dining room, Schorr claimed that Rozanski called him “unethical.”
Brooks, who believed the actions taken by Academy members constituted an illegal boycott aimed at obstructing his practice, filed suit against the San Diego Academy of Ophthalmology on May 5, 1981, naming Drs. Rosen, Rhein, and Gelber as co-defendants. He charged conspiracy to restrain trade, alleging that as a result of the San Diego doctors’ actions he’d lost at least seventy-five patients and had been billed $10,000 by a search firm to locate Dr. Barry Katzman as an assistant.
Key to Brooks’s case against the Academy was his assertion that, because he represented an economic threat to Academy members, he had been singled out by them for attack. In the past. Brooks claimed, other SDAO members had been accused, by colleagues and by patients, of unethical and negligent behavior — some of which had much graver consequences for patients than anything Brooks did — but the Academy never took serious action against them. For example, well before Brooks came to town, the Academy had received numerous complaints about a certain Dr. X (his name is omitted in the court records), including the startling accusation that he had implanted two artificial lenses backward. Just before Brooks arrived in San Diego, Gelber received a formal complaint from the San Diego County Medical Society suggesting that Dr. X appeared to be “rather aggressive” in his recommendations for surgery. A woman had complained to the Society that Dr. X had recommended cataract surgery, but she had sought out second and third opinions from two other ophthalmologists who flatly stated that surgery was not called for. On March 13, 1981, Gelber wrote back to the Society, stating that the SDAO executive committee had considered the matter of Dr. X but had “received no other written complaint, and I do not feel that any hear-say, anything other than facts should be evaluated by the ethics committee of the San Diego Academy of Ophthalmology.”
And yet, Brooks’s lawyers argued in his lawsuit, “in a super-charged atmosphere of self-righteous indignation, and on the basis of triple and double hearsay, the Academy publicly attacked the character, morals, and ethics of Dr. Brooks.” The Academy had, Brooks’s attorneys argued, acted on a double standard. And why? Because in San Diego there is a surplus of ophthalmologists, and because Brooks “threatens to take patients away from the members of the Academy. He threatens their pocketbooks. and that is why he incurs their wrath.”
The San Diego ophthalmologists interviewed for this article all cringed when they heard this argument. Each of them stated unequivocally that actions taken by Academy members against Brooks were motivated primarily by ethical considerations — they wanted to protect the public from a man they felt was bad for their profession. “We didn’t want to restrain his trade,” says one doctor today, “we just wanted him to clean up his act.” Since no one intervened, the local doctors felt they had no choice but to do so. Before Brooks began operating in San Diego, Gelber contacted the state Board of Medical Quality Assurance, but the agency, which complains of being overworked and understaffed, declined to investigate Brooks’s promotional activities. “Where was BMQA during this whole affair?” asks one local ophthalmologist in disgust. “They go after some poor slob who’s an alcoholic and stop him from practicing. They call up individuals and make them show that they’ve kept up continuing education. But a guy like Brooks comes along, and he’s making... statements on TV, and they don’t do anything!”
Officers of the Academy had reason to suspect that Dr. Dennis Brooks was something less than an ideal physician. Several San Diego ophthalmologists had, the Academy later alleged in court, “provided treatment and care to surgical patients of Dr. Brooks who had experienced serious post-operative complications.” A La Jolla ophthalmologist, after treating one such patient prior to Brooks’s arrival here, wrote Brooks a letter requesting more information about the patient’s case. He received a “Dear Doctor” form letter in return. A second query produced a personal response from Brooks.
The matter of Brooks’s competence as a surgeon was never seriously debated in later court actions (Brooks’s attorneys and associates claim his malpractice rate, even with his great number of patients, is below the national norm), but queries by Academy members into Brooks’s past raised other questions. He’d served his residency in ophthalmology at Manhattan Eye, Ear & Throat Hospital, where he’d worked under Dr. Charles Kelman, developer of the phacoemulsification, or ultrasound, technique. Kelman, a flamboyant man known for his “Chuck the Knife” nightclub routine, employed Joseph Lizerbram as his business manager. In 1974, when Brooks left New York and moved to Philadelphia, Lizerbram accompanied him there. Lizerbram, who still works for Brooks, arranged to have Brooks’s first ultrasound cataract operation filmed and then aired on a local television station. Brooks’s career was off and running.
However, the Philadelphia medical establishment objected to his self-promotion efforts; several members of the Philadelphia County Medical Society had complained that Brooks was using “false and misleading advertising.” Based on their own investigation, the San Diego doctors presented the following allegations in court: In 1974 when Brooks first applied for membership to the Philadelphia County Medical Society, his application was tabled pending an investigation into allegations concerning Brooks’s advertising and promotion. Investigators for the Philadelphia County Medical Society were particularly interested in Brooks’s claims that he had co-developed the phacoemulsification technique. Brooks voluntarily withdrew his application. When he resubmitted the application in 1977, however, he met with similar resistance from the Philadelphia Society. This time Brooks’s attorney threatened to sue “if Dr. Brooks is unable to achieve his right to membership in any other way. . . .” Immediately thereafter the application was approved. Between 1979 and 1981, the Philadelphia County Medical Society received additional complaints from physicians and patients about Brooks’s advertising and inadequate post-operative care for his numerous out-of-town patients.
In 1978 his book was published, and it sold about 5000 copies in its first three years on the market. When several San Diego eye surgeons read the book, they were perturbed by what they perceived to be false and mis-leading statements aimed at portraying Brooks as a bold innovator in cataract surgery. As far as they knew, Brooks’s contributions to medicine included no innovations whatsoever. Don’t Be Afraid of Cataracts has a reassuring, fatherly tone to it (Brooks quotes one woman who flew to see him because, she said, “You sound friendly but realistic, like Dr. Marcus Welby on TV”), and to laymen its author comes across as authoritative and compassionate. Brooks states in his book that he, unlike many physicians, wishes to speak to patients in simple terms unclouded by technical jargon. He writes that there are two kinds of cataract surgery: first, there is the “old-fashioned” or “standard” method. Called “intracapsular extraction” by physicians, this method removes the cataractous lens and the posterior capsule supporting the lens. This method. Brooks explains, requires a three-quarter-inch incision closed by ten stitches. The patient undergoing “old-fashioned” cataract surgery will likely spend several days in the hospital, then will recuperate for eight or nine weeks. The other method is ultrasound, or phacoemulsification, which. Brooks writes, is far superior to the “old-fashioned” method, not only because it requires a one-sixteenth-inch incision (closed by a single stitch), but because it leaves the posterior capsule intact, thus causing far less trauma to the eye. Brooks’s book offers numerous testimonials from satisfied patients who are able to function the same day they have undergone phacoemulsification surgery.
A number of local ophthalmologists were asked recently to comment on Brooks’s book and the eight-page “Supplement” to it, which Brooks currently sends to prospective patients. Several suggested that the author’s efforts to simplify sound more like self-serving attempts to obscure and mislead. For example, one said that Brooks’s current explanation of an intracapsular extraction is “twenty years behind the times,” that the “old-fashioned” method has progressed along with other methods and can now be accomplished with an incision of less than one-half inch. Also, a local surgeon who has performed phacoemulsification pointed out that although the ultrasound technique does require a small incision (he says about one-eighth of an inch, not one-sixteenth), Brooks almost always implants a one-quarter-inch artificial lens. Therefore, the incision has to be enlarged to nearly one-third of an inch anyway, so this primary advantage of phacoemulsification is negated.
The reader of Don’t Be Afraid of Cataracts is left with the impression that in 1978 Brooks was one of very few physicians who saw the benefits of the ultrasound method. Though most local ophthalmologists won’t admit it, this was true. Brooks really was ahead of the field in terms of perceiving the superiority of this technique over intracapsular extraction. He was also one of the first strong advocates of artificial lens implants, which were viewed with suspicion for years, but which are universally accepted today. Nonetheless, some of the information the public received about Brooks was misleading. For example, just after Brooks arrived in San Diego in March of 1981, the Vista Press published a story about him featuring the inaccurate headline, “Doctor Brings New Technique West.” Also, Brooks was saying on television and radio that the technique he used was not generally available here. In fact, several physicians in San Diego had been using phacoemulsification, or ultrasound, for years. Ronald Friedman, the young osteopath Brooks first approached to assist him in San Diego, was at that time using the technique and implanting an even more advanced lens than Brooks was. Pat Stein of the Oceanside Blade Tribune wrote an article about Brooks in August of 1981 in which she stated that “he is the only one who combines ultrasound cataract removal with the revolutionary form of intra-ocular artificial lens implantation that uses the natural sac of the eye to hold the lens in place.” In 1981, however, dozens of local ophthalmologists were performing the procedure Brooks described to Stein. Brooks later said Stein had mis-quoted him, but the reporter swore in deposition that she had not.
Some cataract sufferers responding to Brooks’s advertisements would ask whether they could have the phacoemulsification procedure performed in their immediate vicinity, instead of having to travel to Philadelphia. The Academy, along with co-defendants Gelber, Rosen, and Rhein, had collected as part of their legal defense numerous letters written by Joseph Lizerbram telling these patients that he knew of no one in their area performing exactly the same technique. In the October, 1984 issue of Medical Economics, Brooks denied that his office ever made such statements. However, Dr. Richard Kratz, a Newport Beach ophthalmologist, did in fact see one of these letters. In about 1974, Kratz, a very well known and respected eye surgeon, recalled that Brooks asked him to provide follow-up care for one of his patients. The patient, who lived near Los Angeles, had been operated on by Brooks in Philadelphia. Kratz, who says Brooks knew full well that he, too, used the ultrasound technique, agreed to care for the patient. Soon thereafter, a woman came to Kratz with a letter in which Lizerbram stated that he knew of no one in the woman’s vicinity who used the same techniques Brooks did.
For years Brooks promoted phacoemulsification as a panacea for cataract sufferers. But the San Diego Academy contended in court that the technique did not merit such claims. Ophthalmologists interviewed for this article explained that “phaco” is but one of several “extracapsular” extraction techniques, some of which offer better results under certain circumstances. “When you have a hardened nucleus, you don’t want to use ultra-sound,” says one local ophthalmologist who once taught the procedure at Harvard Medical School. “Phacoemulsification is widely accepted today, but it is not appropriate in all cases.”
Brooks built his national reputation on the merits of this procedure. Imagine the reaction of local ophthalmologists when — after Brooks had promoted his use of ultrasound in the media here — they discovered that he wasn’t even using the technique. According to a professional who worked for College Park Hospital when Brooks performed his first surgeries there in April of 1981, the phacoemulsification machine had not yet arrived. This seemed to confirm the Academy’s contention in court (based on review of Brooks’s case files) that Brooks had not used the technique he was advertising on San Diego television.
Was Brooks merely trying to keep his name associated with a technique that enhanced his marketability? To this day Brooks does not use ultra-sound on a regular basis, yet the layman would have great difficulty knowing this from reading the “Supplement” to his book, which is currently sent to those who respond to Brooks’s advertisements. Brooks writes that he has modified his surgical technique “in conjunction with the most recent developments.” He says he uses an approach that “includes phacoemulsification or ultrasound or modifications thereof.” This phrase can mislead the lay reader. Brooks goes on to explain in his “Supplement” that “instead of emulsifying the hardened part of the lens, I express it from the capsule with delicate micro-surgical instruments and aspirate the remaining soft cataract material from the capsule with the phacoemulsification aspiration handpiece of the phacoemulsification machine.” Several ophthalmologists interviewed for this article said that calling this a “modification” of phacoemulsification is misleading because the “aspiration handpiece” has nothing whatsoever to do with ultrasound; it merely irrigates and aspirates the lens capsule with water after the lens has been removed. When Brooks says he “expresses” the lens with microsurgical instruments, he is describing a routine “extracapsular extraction.”
Elsewhere in the “Supplement,” Brooks writes that the “old-fashioned” method (intracapsular extraction) “is the prevailing method used by most ophthalmologists.” Says a La Jolla ophthalmologist, “That’s wrong. It may be true in Europe or elsewhere, but in the United States, certainly in San Diego, the majority of ophthalmologists perform extracapsular extractions.”
After his book was published, Brooks’s name appeared frequently in the press, both in advertising (some of Brooks’s advertisements offered his patients $250 to travel to Philadelphia) and as a newsmaker. The tabloid Globe ran an article about Brooks on March 18, 1980 entitled, “ ‘Miracle’ Five-Minute Operation Cures Cataracts.” The Star published an article featuring Brooks on April 13, 1981 with the headline, “Blind Man Regains Eyesight After Conquering Weird Fear of Doctors.” Smaller community papers nationwide gave Brooks further exposure by publishing similar stories. Some sample headlines: “Revolutionary Cataract Procedure Performed Here,” “Doctors Ignoring New Technique,” “Doctor Develops Unique Process,” and “Dr. Brooks: Miracle Worker.”
It's not difficult to imagine how the conservative medical establishment reacted to these articles. To most physicians, self-aggrandizement seemed clearly to be a violation of medical ethics. And it was, at least until the late 1970s, when restrictions on advertising in the learned professions were struck down in a series of Supreme Court rulings. But when Brooks arrived here in early 1981, he confronted a local group of ophthalmologists who had not only neglected to change their rules to conform with the law, they had actually rewritten their Academy’s bylaws to strengthen restrictions on advertising and other forms of self-promotion.
The San Diego Academy of Ophthalmology had acted on numerous occasions to enforce these illegal by-laws. For example, when Dr. Robert Thompson included in his 1980 Yellow Pages listing that he specialized in cataract and implant surgery, the Academy sent him a letter threatening to expel him. He changed his Fisting. In early 1980, Dr. William Maloney was the subject of an article in the Blade Tribune when he donated $8000 to Tri-City Hospital toward the purchase of a phacoemulsifier. Although Maloney made obvious efforts not to glorify himself, he too was reprimanded. Dr. Lee Nordon met the same fate when a story about him appeared in the Del Mar News Press.
One local Academy member recalls a run-in with the ophthalmologic establishment back in the early Seven- ties: “When I first arrived here, someone came and told me that ‘the boys’ — that’s the term he used — ‘think you’re doing too much surgery.’ The old boys thought they could railroad Brooks out of town, but they were wrong. Their old tactics didn’t work.”
In June of 1981, just weeks after Brooks had filed his first lawsuit against the San Diego Academy of Ophthalmology, the cataract surgeon had regained staff privileges at College Park Hospital and began operating as scheduled. (Although Brooks still lived in Philadelphia, his new assistant. Dr. Barry Katzman, had moved to San Diego, thus resolving the issue of post-operative care, at least for patients who lived in the San Diego area.) On July 1 the SDAO filed a counterclaim in federal court, asking for an injunction to prevent Brooks from disseminating false and misleading information to the public. To the local physicians, this counter-claim had great psychological implications. Instead of merely defending themselves against Brooks, by requesting this injunction they felt they were taking positive action to protect the public from a “buccaneer.”
By this time the case had assumed a vicious character that it would maintain until its end. On May 8, 1981, only two days after receiving word of Brooks’s lawsuit, the Academy, along with co-defendants Gelber, Rosen, and Rhein, had served Brooks by mail with a “Notice of Taking Deposition,” asking him to collect and present, on a mere week’s notice, tens of thousands of documents. To Brooks, this was blatant harassment. “The defense had a bad, bad case,” said Lawrence Appel, Brooks’s attorney from Alioto and Alioto, in a recent telephone interview. “But someone made a policy decision early on to punish Brooks. They were going to run him out of money and they damn near did.” To Brooks’s opponents, extensive investigation seemed dictated by the circumstances. “When you accuse someone, you invite that kind of action,” Jeff Shohet, Dr. Rhein’s attorney, said recently. “Brooks accused very upstanding people of these things. Dr. Rhein has a reputation as a community-conscious public servant. He legitimately believed that Brooks shouldn’t come into town, cut thirty-five eyeballs in two days, then leave his patients in someone else’s care.” This “harassment” worked both ways. According to one local ophthalmologist, he and others were continually being asked by Brooks’s lawyers to produce “trivial” information. “They wanted to know, ‘How many cataracts did you do during such and such period?’ and things like that. It was harassment. I’m sure it was all planned.”
Brooks’s attorneys submitted documents in court that showed strong evidence of “expert” witnesses being successfully pressured to back out of their agreements to testify on behalf of Brooks. They also charged that attorney Reginald Vitek (of the local law firm Seltzer Caplan Wilkins & McMahon, which represented the San Diego Academy), along with others, had, in an effort to “personally embarrass and to maliciously disparage Brooks, secretly contacted Benita Brooks [his wife] and her counsel; inquired, among other things, as to Brooks’s temperament, personality, and personal habits; suggested that Brooks’s then-pending divorce proceedings had been caused by [un-founded insinuations of] Brooks’s abuse of alcohol or drugs; and suggested that defendants would pay Benita Brooks money to testify against Brooks.” The local doctors, in turn, accused Brooks of intentionally reducing his patient load to make it appear as though his business had been hurt. Evidence from Brooks’s accountant, they charged, revealed conspicuous reductions in patient loads immediately before important court dates.
On July 18, 1981 a representative of the SDAO met with representatives of the American Academy of Ophthalmology at the Westgate Hotel. The American Academy agreed there to assist the financially troubled SDAO (whose modest coffers had been depleted of $15,000 in the first month alone) by filing its own counterclaim, nearly identical to that of the SDAO. To Brooks and his attorneys this seemed to be further evidence of a conspiracy against him. Though the American Academy never admitted to financing the SDAO, in May of 1983 an attorney working for Brooks was digging through SDAO paperwork and found a memo with the marginal notation, “All $ have been from AAO since August 1981.”
Brooks maintained that his opponents’ actions constituted a group boycott, regardless of their intentions. The Academy contended in court that their actions were justified because they were motivated by a sincere desire to protect the public and their profession; they never intended to be anticompetitive. So from the moment Brooks filed the suit in May, 1981, the San Diego doctors began accumulating evidence they hoped would prove that Brooks was an unethical physician who used his knowledge of medical science to deceive the public for his own personal gain. Several local ophthalmologists met with attorneys Reginald Vitek, Jeff Shohet, Gibson Pratt, and others for ten to thirty hours per week for more than a year. It is estimated that the San Diego Academy, as well as co-defendants Gelber, Rosen, and Rhein, spent $1.5 million in legal fees preparing their defense against Brooks. At least part of this money came from local Academy members’ contributions. Defense attorneys conducted nearly 150 sworn depositions, about half of them taken on the East Coast. An investigator even went as far as the Dominican Republic in this effort to scour Brooks’s background. “The main thrust of the defendant’s case was to paint Dr. Brooks with the blackest brush possible,” said Brooks’s attorney Lawrence Appel in a recent interview. “They conducted an investigation that was awesome, investigating every aspect of Brooks’s past to dig up dirt on him — all in an attempt to obscure the restraint-of-trade issue.”
Between May of 1981 and September of 1982, the defense amassed some ninety cartons of evidence concerning Brooks — enough, one local physician claimed, to fill a nine-by-twelve room. “We were gloating,” said this physician recently. On November 10, 1982 they stopped gloating. On that date Federal District Judge Gordon Thompson dismissed summarily the American Academy and the San Diego Academy counter-claims. Brooks’s attorneys had sought the dismissals by making a motion for this summary judgment, arguing that the two academies had no legal right to file such a claim in federal court. Federal law states that the counterclaimant must have suffered “actual or threatened injury.” In this instance, the judge felt neither organization had been directly harmed by anything Brooks had done.
“We were devastated,” said the local Academy member quoted above. “There went our entire defense. Thompson’s ruling killed us. I couldn’t believe he did that ” Thompson’s summary judgment devastated the Academy for two reasons. First, their attempt to stop Brooks had been thwarted and, as one physician said, “It was no longer possible for us to create a public forum to answer the questions we’d raised about [false and misleading] advertising. At that point, we were only in court to defend ourselves.” Second, once the American Academy’s counterclaim had been dismissed, that organization was no longer involved in the case, so it cut off funding to the SDAO, which, un-like the individual defendants, had no insurance coverage.
At this point Seltzer Caplan Wilkins & McMahon requested $300,000 to continue representing the local Academy. So the SDAO held another general meeting that same month and proposed to its approximately one hundred members that each one put up an additional $3000. About sixty percent of the members, many of whom were disgusted with the suit, refused to contribute. “We thought the whole thing was an abortion,” said one member. “We were throwing good money after bad.” When the Academy failed to raise the $300,000, attorney Reginald Vitek suggested that the doctors go to another San Diego law firm, Luce Forward Hamilton & Scripps. According to one ophthalmologist involved in the case at this point, attorneys at Luce Forward recommended the Academy file for bankruptcy, assuring them that Brooks couldn’t go after each one of them individually.
But he did. In late January of 1983, Brooks I was scheduled to go to trial. More than 200 witnesses were to testify, and some 2000 documents were to be introduced. But on January 26 the local Academy filed for bankruptcy, automatically staying the anti-trust suit against it. The three principals named in Brooks I — Gelber, Rosen, and Rhein — settled out of court with Brooks for about $400,000, not because they were guilty, they said, but because legal fees had gotten out of hand and they had run out of money. Less than two weeks later, Brooks filed a second suit. Brooks II, against the American Academy of Ophthalmology and ninety-five individual members of the San Diego Academy, asking for three million dollars in damages.
News of Brooks II astounded the local eye doctors. By court order, the three individual defendants in Brooks I were forbidden to discuss the case with anyone but their attorneys. Therefore, other Academy members, who all along had been contributing money to the Academy’s defense in addition to their yearly dues, knew little of what had transpired between May of 1981, when Brooks I was filed, and November of 1982, when the meeting to raise funds took place. For example, it wasn’t until this November, 1982 meeting that most of the Academy members learned about the “Dear Administrator” letter written twenty months before by Gelber. The suit also surprised the doctors because to them the SDAO was an educational society, nothing more. One Academy member named in Brooks II, who was vehemently opposed to Brooks’s promotional activities, says that he voted against the three resolutions passed on April 6, 1981 because he felt the Academy had no business policing the ophthalmologic community. Another physician named in Brooks II believes Brooks knew that the individual members of the Academy had done nothing wrong, that no conspiracy ever existed among local doctors; and he questions Brooks’s motives for taking legal action against the entire Academy. “So why did he sue us?” this physician asked during a recent interview. “I think Brooks knew he was going to have trouble no matter where he went around the country, so he sued [the individual members of] the Academy for effect. It was an intimidation tactic. He wanted to say to everyone, ‘If you oppose me. I'll make your life miserable.’ He used the legal system to bludgeon everyone into submission, and the system allowed him to do it!”
An alternative explanation might be that Brooks, after bitterly fighting the local Academy as well as the national Academy for nearly two years, wasn’t willing to accept a settlement that didn’t even begin to cover his legal fees. To him, the San Diego Academy’s bankruptcy must have seemed like rolling over and playing dead. “The Academy was playing cutesy,” said one observer of the suit. “They hurt Brooks, they caused him grief, then they said, ‘Well, let’s forget about this.’ ” Brooks wasn’t willing to forget. Brooks II, like the earlier suit, never came to trial. Between February of 1983 and August of 1984, all of the ninety-five defendants were either dismissed from the suit or paid Brooks a settlement. While most of them were covered by insurance, a few were forced to pay out of pocket. The court ordered that the amount of the settlements remain secret (even the doctors themselves don’t know how much their insurance companies paid), but it is known that the American Academy of Ophthalmology settled for $30,000. Though Medical Economics, a national medical journal, reported that individual settlements were believed to be about the same, one local ophthalmologist said he thought it was less — about $10,000 to $ 15,000 per defendant.
Brooks has been at Clairemont Community Hospital for about a year, ever since College Park Hospital shut down. He owns a house on Dolphin Place in the Bird Rock neighborhood of La Jolla, but still resides primarily in Philadelphia. According to a source at Clairemont, which is owned by American Medical International, the facility was in Financial trouble when Brooks arrived there, and he was viewed by some as the “savior” of Clairemont Community Hospital. The administration waived standard requirements to monitor Brooks’s work for a given period of time. Dr. Libro Di Zinno, then chief of surgery at Clairemont and a defendant in Brooks II, resigned from his position as a result of Brooks’s arrival.
Brooks now comes to San Diego for one week each month and performs as many as one hundred operations, receiving a surgical fee of about $2000 for each one — as much as $200,000 per week. Until last fall. Brooks was keeping his patients for one night at Clairemont, according to Robert Smith of American Medical International. So many cataract surgeons throughout California were following similar procedures that Medicare officials, realizing that hospitals were making the surgery unnecessarily expensive, put a stop to it. Now, according to one employee at Clairemont Community Hospital, “you can always tell when Brooks is in town because the parking lot is full of campers and RVs,” some from as far away as Colorado, Nevada, and Arizona.
In order to perform such high-volume surgery. Brooks has two other physicians working with him. An anaesthesiologist numbs the eyeball; then Brooks extracts the lenses and implants artificial ones (this requires approximately five to seven minutes); then his assistant, Barry Katzman (sometimes Brooks), sutures the incision. Though some local ophthalmologists think this division of labor is scandalous, others admit that as long as the surgeon is capable and the procedure well supervised, such high-volume surgery can be as good if not better than conventional surgery. However, Brooks still hasn’t resolved the post-operative-care issue regarding out-of-town patients. Those who come from out of county or out of state may not find competent help should post-operative complications arise.
“Life after Brooks” goes on for local ophthalmologists, although it isn’t exactly business as usual. A glance through local magazines and newspapers, notably Senior World, reveals that advertising is now commonplace among San Diego’s eye doctors. If for nothing else. Brooks will certainly be remembered as having been at the vanguard of a movement that made medical care explicitly competitive. Even Dr. Robert Rosen, one of Brooks’s most vehement opponents, now advertises radial keratotomy and permanent eye liner in San Diego Magazine. But San Diego’s ophthalmologists are still smarting from the Brooks affair, which, according to one eye surgeon, “devastated the professionalism of ophthalmology in San Diego.” No attempt has been made to revive the bankrupt Academy, so no professional society exists. No more get-togethers. No more lectures. It may never exist again, given the philosophical chasm that separates the conservative old guard and those who accept the inevitability of self-promotion in the future of eye surgery.
Dr. Dennis Brooks politely declined to be interviewed for this article, saying, “I won the case. The rest is public record.” Perhaps the most frustrating aspect of the Brooks case is that, from the public’s point of view, the most significant issue was never resolved. The major public concern in the Brooks lawsuits, which several lawyers thought might have gone as far as the Supreme Court, was to determine who is responsible for ensuring proper ethical standards in the medical profession. “But from day one, the question has always been the cost of the legal process,” says one San Diego ophthalmologist who was particularly disillusioned by the lawsuits. “The issues of ethics, standard of care, and what can and can’t be said in advertising, were never even raised in the case. Everyone is fed up with the legal system, which told us that you can’t review a peer without the specter of restraint of trade arising. We have charged the windmill and broken our lances. We won’t do it again.”