Bariatric Surgery Malpractice Allegations: What Claims Data Show, and Ways to Reduce Risk

Obesity is a well-known health concern in the United States. Often referred to as an epidemic, obesity affects about 36 percent of U.S. adults — more than double the number affected just 30 years ago.¹ Bariatric surgery has emerged as an effective treatment option for many individuals who suffer from obesity, and the number of these procedures has increased over the years.

With the rate of obesity on the rise and bariatric surgeries increasing, it logically follows that malpractice claims associated with these procedures also have increased. Just like other types of surgery, bariatric surgery carries a number of risks. However, the patient population seeking bariatric surgery presents unique challenges because of their physical health and comorbidities (e.g., heart disease, high blood pressure, diabetes, respiratory issues, sleep apnea, etc.), which often make these patients high risk.

A review of MedPro Group closed claims data² associated with bariatric surgery reveals top areas of risk for surgeons as well as opportunities for improvement. Not surprisingly, allegations related to surgical treatment — rather than anesthesia, diagnosis, or medications — account for the majority of claims (91 percent). Most of these surgical events occurred in inpatient settings rather than outpatient ambulatory surgery settings, as most major weight-loss procedures (such as Roux-en-Y gastric bypass and laparoscopic sleeve gastrectomy) take place in hospitals.³

Of the bariatric surgical treatment claims, issues related to performance of surgery account for the majority of claims volume and total dollars paid, followed by inadequate management of patients’ postoperative complications (Figure 1). A minimal number of retained foreign body claims was noted, and items included surgical instruments and sponges.

Figure 1. Bariatric Surgical Treatment Claims: Volume and Dollars Paid

NOTES: The “other” category includes allegations for which no significant claims volume exists, including allegations of surgical delays and unnecessary surgeries. Any totals not equal to 100 percent are the result of rounding. Total dollars paid = indemnity plus expense.

When looking at bariatric surgical treatment allegations from the perspective of clinical severity, more than half of the claims (approximately 60 percent) involved a patient outcome with high clinical severity (i.e., permanent disability or death).

Postoperative management issues accounted for the largest volume of high clinical severity claims (Figure 2); these claims were related to managing patients who had pulmonary emboli, cardiac arrests, infections, respiratory failure, and perforations. Additionally, claims data show that postoperative management of patients often was complicated by delays from surgeons to react to complications and adjust treatment plans accordingly.

Figure 2. Bariatric Surgical Treatment Allegations by Clinical Severity

NOTE: Any totals not equal to 100 percent are the result of rounding.

Further analysis of bariatric surgical treatment claims reveals that numerous risk factors contributed to these claims (Figure 3), with technical skill representing the top risk (occurring in 79 percent of the surgical treatment allegations). Clinical judgment issues also were cited in the majority of allegations (64 percent).

Figure 3. Top Risk Factors in Bariatric Surgical Treatment Allegations

NOTE: Totals exceed 100 percent because generally more than one factor is associated with each claim.

The risk factors noted in Figure 3 are broad categories that encompass more specific issues, and the top issues within each risk category are as follows:

• Technical skill: The occurrence and management of recognized complications (e.g., bleeding, blood clots, respiratory issues, and infections); poor surgical technique; and procedural inexperience
• Clinical judgment: Inadequate assessment of patient condition resulting in premature postoperative discharge; narrow diagnostic focus; delays in ordering diagnostic tests; and poor selection of procedure type
• Behavior-related: Patient noncompliance with treatment regimens, including follow-up appointments and calls
• Clinical systems: Gaps and oversights in the processes designed to prevent infections and to ensure patient follow-up regarding test results
• Communication: Inadequate informed consent discussions and lack of patient education
• Documentation: Insufficient and/or inconsistent documentation of clinical findings, adverse outcomes, informed consent discussions, and provision of patient education

To address these risks, hospital leaders, surgeons, and clinical staff can implement strategies to improve patient safety and quality of care. Below are 10 important risk mitigation strategies for bariatric surgery:

1. To minimize the risks associated with recognized complications of bariatric surgery, ensure your organization adheres to its credentialing policies, including evaluation of procedural skills and competency with equipment.
2. Conduct comprehensive informed consent discussions, including a review of the risks and benefits of treatment, potential complications, and alternative options. (A thorough informed consent process can influence patient satisfaction with treatment outcomes and compliance with treatment regimens.)
3. Provide both written and verbal patient education using lay terms and plain-language materials. Consider the use of other educational options — such as videos, a pre-surgery patient test, support group attendance, etc. — to reinforce important information and patient understanding.
4. Use a technique such as “teach-back” or “repeat-back” to ensure that patients completely understand their treatment and follow-up care instructions/expectations.
5. Conduct a thorough preprocedure screening of patients to identify risk factors, to confirm they meet patient selection criteria, and to verify selection of the most appropriate type of procedure.
6. Implement and maintain a consistent and appropriate postprocedure assessment process (e.g., review of vital signs, respiratory status, pain level, medication administration, IV maintenance, diet, etc.).
7. Carefully consider repeated patient complaints or concerns when making clinical decisions about patient care and additional testing or treatment.
8. Review processes for receiving, reporting, and acting on test results (including incidental findings) to identify and resolve any potential safety gaps.
9. Adhere to protocols designed to mitigate the risk of postoperative infections (e.g., protocols associated with good surgical technique, prophylactic antibiotics, appropriate hand hygiene, sterile instruments and dressing, and gowning and gloving).
10. Provide comprehensive and consistent documentation of each patient encounter in accordance with organizational documentation standards and timeframes. Document thorough information about each patient (e.g., history, physical, medications, conversations about care, etc.), preoperative assessment results, clinical reasoning and rationale for treatment, informed consent discussions and patient education, detailed operative reports, and patient noncompliance with treatment and follow-up care.

For additional information and more helpful resources and tools related to safe surgery, see MedPro’s Risk Resources: Anesthesia & Surgery.

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