Bariatric surgery claims - A medico-legal perspective

Obesity Surgery

Volumn 16, Issue 12, 2006, Pages 1555-1558

  Kaufman, Andrew S ^a   McNelis, John ^b   Slevin, Maribeth ^a   La Marca, Cristina ^a  

^a Kaufman Borgeest and Ryan LLP   (United States)

^b LONG ISLAND JEWISH MEDICAL CENTER   (United States)

Author keywords

Bariatric surgery; Gastric bypass; Medico legal; Morbid obesity; Risk management

Indexed keywords

BARIATRIC SURGERY; HUMAN; INFORMED CONSENT; LAW SUIT; MEDICOLEGAL ASPECT; OBESITY; PATIENT SELECTION; POSTOPERATIVE COMPLICATION; PRIORITY JOURNAL; REVIEW; RISK MANAGEMENT; STOMACH BYPASS;

BARIATRIC SURGERY; CREDENTIALING; HUMANS; INFORMED CONSENT; MALPRACTICE; OBESITY, MORBID; PATIENT SELECTION; PHYSICIAN-PATIENT RELATIONS; POSTOPERATIVE CARE; RISK MANAGEMENT;

EID: 33845936559     PISSN: 09608923     EISSN: None     Source Type: Journal    
DOI: 10.1381/096089206779319482     Document Type: Review

References (20)

1. Buchwald H. Mainstreaming bariatric surgery. Obes Surg 1999; 9:462-70. Indeed in the eyes of many practitioners, insurance carriers and the population at large, obesity and more specifically obesity surgery is still subject to many prejudices not tolerated in other areas of society. While medical evidence is that morbid obesity in many instances is the result of inborn factors in metabolism, prejudice against the obese is one of the few tolerated prejudices in our society. Discriminatory actions that would never be condoned in the context of religion, ethnicity, racial, gender or sexual orientation are tolerated in the context of obesity. Indeed, intolerance of the obese violates no laws, regulations or even social mores. This prejudice finds its way into the legal system in several ways. First party insurance carriers have litigated this issue under the rubric of elective surgery vs medical necessity.
2. Hall MA. State regulation of medical necessity: The case of weight-reduction surgery. Duke Law J 2003; 53; 653-72. Liability carriers in many states have restricted or refused to write malpractice coverage or have placed substantial surcharges on practitioners that perform these operations. Furthermore, the media has sensationalized both the remarkable successes of this surgery in certain celebrities, as well as some of the catastrophic complications that may occur, creating a number of basic misconceptions and inappropriate expectations in the population.
3. With the exception of fen-phen, most diet pills have not been controversial in terms of their side-effects.
4. Eagan CM. Bariatric surgery: malpractice risks and risk management guidelines. Am Surg 2005; 71: 369-75.
5. Agency for Healthcare Research and Quality Obesity Surgery Complication Rates Higher Over Time. Press Release, July 24, 2006. www.ahrq.gov/news/press/ pr2006/obessurgpr.htm
6. Inge TH, Krebs NF, Garcia VF et al. Bariatric surgery of severely overweight adolescents: concerns and recommendations. Pediatrics 2004; 114: 217-23.
7. Based on a review of legal suits filed in the United States from 2000-2005.
8. Bariatric surgery is a generic term encompassing several procedures. The first procedure, the now abandoned jejuno-ileal bypass, achieved widespread popularity in the 1970s but some patients began to experience long-term metabolic and physiologic derangements. The gastric bypass, described by Mason in the 1960s, became the operation of choice. Currently the Roux-en-Y gastric bypass is the most commonly performed weight loss operation in USA, with approximately 150,000 performed in 2005. Either performed laparoscopic or open, the operation entails connection of a loop of small intestine to a proximal gastric pouch of 15-30 cc. The other operations include laparoscopic gastric banding, which restricts intake, and the malabsorptive biliopancreatic diversion with or without duodenal switch.
9. Champion JK, Williams M. Economic impact of bariatrics on a general surgery practice. Obes Surg 2006; 16: 113-18. These requirements include performance of 100 cases. Week-end training at a mini-seminar is not sufficient. While all agree that emphasis on screening and informed consent is important, no formal protocol has been established concerning these issues as yet.
10. Beds, tables, blood-pressure cuffs.
11. Elevators, wheelchairs, and gurneys.
12. Longer instruments including retractors and staples.
13. Laville M, Romon M, Chavrier G et al. Recommendations regarding obesity surgery. Obes Surg 2005; 15: 1476-80. Medical contraindications include the absence of prior identifiable medical management, potential problems with medical follow-up, psychotic disorders and severe depression, alcoholism or drug dependence, serious disorders in feeding particularly of a bulimic type, impaired masticatory function, contraindications to general anesthesia, and diseases threatening life in the short-term.
14. Garcia VF, DeMaria EJ. Adolescent bariatric surgery: treatment delayed, treatment denied, a crisis invited. Obes Surg 2006; 16: 1-4.
15. There is no ethical controversy about whether this should be permitted, but if prior litigation history is linked to success of the procedure, it is potentially relevant although not politically correct.
16. One aspect of this may include demonstrating photographically some failures and less than optimal or sub-optimal outcomes.
17. Scheier L. Bariatric surgery: life-threatening risk or life-saving procedure, J Am Dietetic Assoc 2004; 7: 1338-40. The act of signing such a contract brings home the significance of the patient's participation in the program, including issues such as postoperative cessation of smoking, compliance with diet, compliance with medications and also demonstrates the patient's and perhaps family's willingness to continue with the program after the surgery and recognition that the surgery is not the end-point of the program.
18. Madan AK, Tichansky DS. Patients postoperatively forget aspects of preoperative patient education. Obes Surg 2005; 15: 1066-9.
19. Seven areas of benefit have been identified in the literature including activity/mobility, symptoms, personal hygiene/clothing, emotional stability, social interaction, sexual function, and eating behavior.
20. Hill v. St. Claire, 67 N.Y.2d 72, 499 N.Y.S 2d 904 (1986).