An Overview of Obesity-Related Malpractice Claims

Paul Nagle, ARM, CPHRM, Director, Physician Patient Safety

What is the common factor in these five cases?

  1. A young male, 5 feet tall, weighing 290 lbs, elected to undergo gastric bypass surgery. Multiple serious post-op complications with organ failure led to his death two weeks later.
  2. A woman in her late 30s, weighing more than 325 lbs, with hypertension, diabetes, and a 25-year history of smoking, died after a myocardial infarction and pneumonia were missed by the surgeon.
  3. A patient weighing more than 350 lbs suffered nerve damage due to positioning on a treatment table.
  4. A 35-year-old patient, 5 feet 4 inches tall and weighing 260 lbs, vomited and aspirated during a manipulation under IV sedation without an endotracheal tube in place.
  5. Spinal surgery on a woman, 5 feet 6 inches tall and weighing 275 lbs, created serious postop complications and paralysis.

The common factor in these five cases is evident: obesity-related complications in otherwise routine clinical settings.

Our population is growing—not only in numbers, but also in size. The World Health Organization (WHO) defines overweight and obesity as abnormal or excessive fat accumulation that may impair health. Body mass index (BMI) is a simple index of weight-for-height that is commonly used to classify overweight and obesity in adults. It is defined as a person’s weight in kilograms divided by the square of his or her height in meters (kg/m2).

The WHO definition is:

  • A BMI greater than or equal to 25 is overweight.
  • A BMI greater than or equal to 30 is obesity.

Obesity is not restricted to adults; children are at risk as well. According to the National Institutes of Health, in the past 30 years, obesity has tripled among school-aged children and teens.

Obesity-Related Loss Analysis

The Doctors Company continues to see an alarming increase in lawsuits that involve obese patients. The following loss analysis focuses on obesity-related claims from 2007 through 2012. The total number of patients in this study was 415. The analysis showed a 64 percent increase in claims during a six-year period, compared to a previous study that encompassed 10 years. Twenty-five percent of the patients died. The patients ranged in age from 10 to 89; a breakdown of the claims by age and specialty follows.

Claims Chart 1


Claims Chart 2

In this recent review, it is interesting that an increased number of claims involved orthopedics and plastic surgery.

The chart below outlines the top 10 injuries in claims involving obesity as a comorbidity. Because more than one comorbidity can affect each patient, the numbers and percentages that appear in the chart are greater than the total number of claims.

Claims Chart 3

Office Practice Considerations When Treating Obese Patients

The patient safety risk managers of The Doctors Company survey hundreds of office practices each year. We can recognize the practices that meet the needs of obese patients: They have appropriately sized furniture in the waiting areas and exam rooms. They also have equipment, such as blood pressure cuffs, needles, and wheelchairs, designed for obese patients. Weight assessment tools are handy, and these practices provide weight education to patients. They understand the importance of talking about weight with their patients—and that the conversation should take place early for better prevention and treatment.

Many factors can arise that inhibit a practitioner from speaking frankly about weight with a patient. As obesity rates continue to increase, it is worthwhile for practitioners to recognize that they might have their own barriers to such communications. The American Medical Association has resources available to help you talk about weight with your patients.

Caring for an overweight or obese patient in the office proactively may reverse a weight gain trend that could ultimately lead to surgical intervention. While bariatric surgery is a viable option, most patients would prefer weight reduction instead of surgery.

Sensitive treatment of obese patients involves attending to their needs for comfort, safety, and respect. Obesity can be viewed as one of the many chronic health conditions afflicting patients. The person, not the obesity, should be the focus of treatment. As with any patient with a chronic health condition, a relationship with respectful caring forms the bedrock of medical care.

Frequently Asked Questions

  • If considering a medication regime for weight loss, should there be an informed consent discussion?
  • Yes. A medication treatment plan should include an informed consent discussion on how the medication works, side effects a patient might experience, and the expected weight loss results. Make sure the medical record properly reflects this consent discussion.
  • Are preoperative medical and anesthesia consultations necessary?
  • Yes. Good intra- and postoperative care depend on a thorough knowledge of the patient.
  • Should operating room and treatment tables be able to accommodate all patients?
  • Yes. Oversized equipment is readily available and should be used in any elective procedure.
  • When is it safe to perform surgery in a standalone surgicenter?
  • Patient safety should be uppermost in the mind of every healthcare practitioner. The location for surgery must be prepared to deal with airway and cardiac complications.
  • Excluding bariatric surgery, are different risk criteria used for elective and emergent or urgent surgical procedures?
  • Yes. Elective procedures may often be deferred until weight loss is achieved. Since many of the procedures in the loss analysis were elective, adverse outcomes are harder to accept.
  • What should be included in the informed consent process?
  • The informed consent process becomes even more significant on emergent or urgent procedures for an obese patient. Conveying the additional risks and complications, as appropriate to the procedure and patient’s size, are the healthcare practitioner’s responsibility. A thorough, well-documented consent may mean the difference between a plaintiff or defense verdict should an adverse event occur.

    For Bariatric Procedures

    • Are bariatric procedures performed more frequently in standalone surgery centers or in hospitals?
    • Even when performed laparoscopically, bariatric surgery is almost always undertaken in a hospital setting. It requires properly trained and experienced staff in an operating room environment specifically designed to accommodate morbidly obese patients. Claims arising from bariatric surgery performed outside a hospital setting can be difficult to defend.

    Patient Safety Measures

    • Communicate. Have open and clear communications. Obese patients should be warned of all the hazards associated with being overweight, including the nature and frequency of possible complications.
    • Document. Document any and all discussions you have with a patient related to the need for weight loss.
    • Manage closely. Provide intensive patient management. Develop criteria for preoperative management of the obese patient. Criteria are especially valuable for elective procedures.
    • Delay surgery. When the patient doesn’t meet the recommended criteria, suggest a delay in elective surgeries, with weight loss as a goal.
    • Obtain assistance from other specialties. If faced with an emergent or urgent surgery, obtain as much help as possible from appropriate consultants (e.g., medicine, endocrinology, and anesthesia).
    • Strengthen the informed consent process. Discuss and document risks, benefits, and alternatives to treatment.
    • Be certain. When in doubt, don’t perform the procedure.

    Additional Information

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J9612 05/14


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