Keywords

Introduction

Although the benefits and safety of bariatric surgery are well established, there has been a steady increase in the number of bariatric medicolegal cases, reflected in the escalating medical insurance premiums for this surgical subspecialty.

The reasons for this are varied and will be explored further in this chapter. In addition, we discuss the underlying legal principles and the underpinning case laws in the bariatric medicolegal cases. Finally, we analyze the scientific literature on bariatric litigation and discuss all the options available for avoiding common medicolegal pitfalls.

Bariatric Surgery and Litigation

Randomized controlled trials have repeatedly demonstrated that bariatric surgery provides significant functional and prognostic benefits to the patients with morbid obesity. In particular, bariatric surgery has been recognized to improve comorbidities such as hypertension and diabetes mellitus as well as increase patients’ overall lifespan [1].

In the UK, over the last decade, there has been a steady fall in the complication rates associated with bariatric surgery. The 2020 UK National Bariatric Surgical Register reports an in-hospital mortality rate of 0.04% and complication rate of 2.4% for all bariatric surgical procedures [2]. Similarly, low perioperative mortality rates have been recorded in North American and European centers [3,4,5].

Despite the potential benefits associated with bariatric surgery, the improved life expectancy, and its low perioperative mortality rate, medical malpractice claims remain an ongoing concern for bariatric surgeons worldwide. However, in the UK public sector, the number of claims made by patients who have had bariatric surgery remain fairly low, particularly in comparison to other surgical specialties [6]. Data from France and the USA also suggest low numbers of bariatric malpractice claims made when considered as a proportion of all bariatric procedures performed [5, 7]. Further, only around half of the claims are awarded to the plaintiffs, with monetary awards ranging from tens of thousands of pounds to in excess of a million pounds [1, 4, 8].

Although the overall rates of bariatric medicolegal claims are low, the increasing volume of bariatric surgical procedures being performed has been accompanied by a concomitant rise in the absolute numbers of litigation cases involving bariatric patients and practitioners [2, 9]. Additionally, globally, there has been a gradual shift toward a “consumer culture” in health care leading to an increasing tendency to seek legal redress following medical complications [10].

As a result, the individual bariatric surgeons may feel exposed to potential litigation as it is the surgeon who is most often named as a defendant [5]. Hence, it is useful for bariatric surgeons to recognize the types of cases which can lead to potential malpractice claims and to be aware of strategies that can help avoid common pitfalls. This will ensure the best outcomes for their patients and for their own practice.

The reasons for increasing litigation in bariatric surgery are multifactorial and include:

Increasing Volume of Cases

The World Health Organization reports that the global prevalence of obesity has tripled since 1975 and about one in every eight adults worldwide is classified as obese [11]. Bariatric surgery remains the most effective method to achieve and maintain weight loss in people with obesity who have been unsuccessful with behavioral modification techniques for weight loss [12]. Although, currently, under 1% of individuals eligible for bariatric surgery receive bariatric surgery, recent analysis demonstrates increasing utilization of bariatric procedures year on year [2, 13]. Further, ongoing measures to reduce the stigma and promote greater awareness of the potential benefits of surgery, both within the medical community and by the general public, is anticipated to increase the acceptability of bariatric surgery in the management of people with obesity [14].

As a consequence of these factors, there has been an increase in the number of bariatric procedures performed that in turn will result in an increase in the overall numbers of potential litigants.

Demographics of Bariatric Surgical Population

In contrast to patients with cancer, the majority of patients with obesity who are suitable for bariatric surgery are unlikely to suffer in the short term as a consequence of their obesity. While obesity is associated with significant comorbid conditions, it is not viewed as an immediate life-threatening condition. Bariatric surgery confers a long-term mortality benefit, but this is not easily appreciated by the individual patient in the short to medium term [15]. Moreover, many patients who undergo surgery choose to do so to improve their health and quality of life. As such there is poor tolerance to adverse outcomes due to postoperative complications which result in deterioration of patient’s health and/or quality of life.

At the same time, a high proportion of patients undergoing bariatric surgery have multiple comorbid diseases with significant effect on their general health, requiring polypharmacy as well as nonbariatric intervention [2]. This can have implications on postoperative recovery in the short, medium, and longer term. Studies have identified the main risk factors for mortality and severe complications as increased age, male gender, higher body mass index (BMI), obstructive sleep apnea syndrome, insulin resistance and diabetes, tobacco use, cardiovascular disease, loss of more than 10% of weight in the 6 months immediately prior to their surgery, hypoalbuminemia, and functional disability [16]. However, we are unable to completely eliminate these risk factors as the majority are nonmodifiable and most of the surgical cohort will have at least one, if not more. This makes it more difficult to accurately identify high-risk patients preoperatively.

Access to Bariatric Surgery

Due to financial constraints in many publicly funded health care systems, there is a de facto rationing of access to bariatric surgery. Bariatric surgery is recognized as a cost-effective treatment option in obese patients but is also associated with significant expense [17]. In the UK, like many other countries, most patients who are referred for bariatric surgery are managed by a multidisciplinary team (MDT) who are often viewed as a gatekeeper [4]. The use of the tiered weight loss service also results in fewer patients being referred directly for bariatric surgery from primary care [18]. Moreover, the waiting list times for most public sector bariatric units, particularly post-COVID-19 pandemic, can be up to 5 years. This results in patients waiting for a long time for their bariatric surgical procedures and often developing an expectation of a positive postoperative outcome. Deviation from this expected course as a result of an adverse outcome can be frustrating and may result in patients pursuing litigation.

Alongside this, many patients may choose to seek bariatric surgery in the private health sector to bypass the hurdles present in the public sector. This is often self-funded as bariatric surgery is not universally covered by health insurance. These patients are therefore more likely to complain if, after having paid for their surgery, they suffer significant complications. Further, to minimize the costs of pursuing private health care, some patients may also seek to have their surgical procedures abroad and may encounter varying outcomes and follow-up. This may result in a more complex litigation process if patients develop complications as they may seek redress against their local providers for denying them access to surgery.

Nature of Complications Following Bariatric Surgery

Like all surgical procedures, bariatric surgical procedures are not immune to complications and studies suggest that almost 20% of patients require further intervention in the first 5 years after Roux-en-Y gastric bypass (RYGB) or sleeve gastrectomy [19]. Complications or poor outcomes can occur both in the early and late postoperative period and are a potential cause of patient dissatisfaction and litigation.

Additionally, distinct from more traditional surgery where a pathological abnormality is resected or repaired, in bariatric surgery, normal anatomy is being deliberately (and often irreversibly) disrupted. This can lead to a number of late procedure-specific complications which require a degree of expertise to recognize and manage. For example, patients with a gastric band can present emergently many years following insertion with a band slippage or erosion while gastric bypass patients can present with internal herniation or stomal ulcers as a late complication. These conditions can be overlooked or misdiagnosed by nonspecialists and the morbidity associated with failure to diagnose these late complications can potentially be a further source of litigation.

Consequently, any patient who has undergone bariatric surgery may be at risk of developing complications for the rest of their lives and as the number of patients undergoing bariatric surgery increases, so too will this figure and with it the number of potential litigants.

Evolution of Bariatric Surgical Procedures

In comparison to most other surgical disciplines, bariatric surgery is a rapidly evolving specialty. Over the past two decades in the UK, we have seen the insertion of gastric bands has changed from being the most frequently performed procedure to one that is now rarely used, while sleeve gastrectomy has gone from being part of a staged procedure for super obese patients to being the most commonly performed stand-alone bariatric surgical procedure globally. Simultaneously, surgical technique continues to be refined for other procedures such as the one anastomosis gastric bypass and duodenal switch while novel endoscopic bariatric procedures are being developed.

As a result, bariatric surgeons need to evolve their practice accordingly and may find themselves on a continuous learning curve as they refine and become established in particular procedures. Extra care must be taken, during the periods of flux, to avoid surgical errors as it is well recognized that surgical proficiency and standardization of techniques are both essential ingredients in reducing surgical errors and potential harm to patients [20].

Previously, many bariatric surgeons were trained in esophagogastric cancer surgery and took on bariatric surgical procedures as an additional service they provided. Today, bariatric surgery is well established as a surgical subspecialty in its own right. To ensure expertise and good outcomes, formal bariatric fellowship programs are established to train surgeons in these techniques and maintain high standards of practice. On a similar note, many countries, including the UK, have developed surgical registries and professional societies to provide a more regulated service and to monitor and improve patient outcomes.

Alongside the evolution in surgical practice, the bariatric medicolegal scene has also seen changes. More often, we see issues relating to consent (detailed below), lack of follow-up, and delayed identification of complications, as well as poor emergency management of complications. Aside from bariatric surgeons, the latter may also be directed against nonspecialist surgeons, primary care physician, and multidisciplinary team members.

Principles of Medical Law

Law Versus Ethics

Medical practice has, for at least two millennia, been led by the principles of ethics and doctors are trained, from the very beginning of their practice, to uphold the four ethical pillars – autonomy, beneficence, nonmaleficence, and justice. On the contrary, the law reflects the long-standing collective societal ethical behavior and can evolve accordingly. Hence, medicolegal law can be mapped onto these same ethical pillars. Respect for a patient’s autonomy is preserved by laws mandating consent, confidentiality, and access to patients’ records [21]. Beneficence and nonmaleficence are reflected in negligence and criminal law while justice is preserved in antidiscrimination laws [21].

Although the principles and case law governing medicolegal practice vary across jurisdictions, broadly speaking, legal complaints following bariatric surgery fall into two categories.

Criminal Law

Criminal law relates to conduct that breaches the law as defined by, in the UK, the Acts of Parliament and is subject to criminal prosecution by the Crown Prosecution Service. The state will act in the interest of the public and doctors who have caused harm to patients can be charged and convicted of assault or manslaughter, if found guilty beyond reasonable doubt.

In the UK, over a 220 year period, 85 doctors have been charged with manslaughter, of whom 25 were convicted [22]. Nine of these 85 cases were in relation to surgical cases. The majority were charged as a result of a mistake or lapse rather than a deliberate violation. None of these cases were related to bariatric procedures.

Civil Law

This branch of law represents the bulk of bariatric medicolegal cases which essentially involve litigants seeking monetary redress from the surgeon or hospital for perceived errors in their medical management. Although the legal mechanics and standards vary from jurisdiction to jurisdiction, in most English Commonwealth dominions, medical negligence falls under the purview of tort law.

Under tort law, for litigants to be successful, they must demonstrate that:

  • The surgeon and/or institution had a duty of care to the litigant.

  • This duty of care was breached.

  • This breach led to some material damage or loss.

In most of the cases, the key issue revolves around the duty of care and whether the duty of care was breached by the virtue of the litigant’s clinical care falling below the standard expected. In the UK, the principles governing what is deemed to be the expected standard of care have been developed through case law.

The conventional approach to assessing liability in civil medicolegal cases is to evaluate if the care given was “reasonable” – a concept which has evolved over time [23]. In the UK, this had been defined by the so-called “Bolam test.” Under this principle, a medical professional is not guilty of negligence if he/she acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular field [24]. This was further extended following the case of Bolitho to include the requirement that the doctor or medical team should also have behaved in a way that “withstands logical analysis,” with the determination of “logical analysis” being the responsibility of the court [25].

However, the ruling for the plaintiff in the Montgomery case has provided a new yardstick for standard of care. This requires consideration of “material or significant” risk for the particular patient in lieu of professional judgement of the doctor [26]. With reference to informed consent, patients should be provided the fullest possible information of all possible options to allow them to make an autonomous decision. Doctors should not withhold information from competent patients even if they disagree with the decision the patient is likely to make and may not be in the patient’s best interest [23].

Medicolegal Literature in Bariatric Surgery

Despite its importance, there is limited literature of medicolegal claims in bariatric surgery. Brugera et al. [3] reviewed the case files of 49 Spanish medicolegal bariatric surgery cases presented to the Professional Liability Department of the Catalonian Medical Colleges Council from 1992 to 2009. Complete recovery was seen in 21% of the cases, death in 47%, and residual impairment in the remainder of cases. Peritonitis due to suture line dehiscence (48%) and respiratory complications were the two most common causes of death. Malpractice was considered to have occurred in 20% of cases and importantly in 6% of the cases the surgeons were convicted in criminal courts of criminal negligence.

Cottam et al. [8] reviewed the case notes of 100 consecutive North American bariatric surgery lawsuits. The most common adverse events initiating litigation were anastomotic leaks followed by intra-abdominal abscess, bowel obstruction, major airway events, organ injury, and pulmonary embolism. In terms of clinical outcomes, 32 patients had a documented intraoperative complication and 72 required additional surgery. Fifty-three patients died and 28 had a full recovery with the remainder having minor or major disability. When a medical malpractice lawyer analyzed the cases, he found that potential negligence was present in 28% of cases with delay in diagnosis of a complication or misinterpretation of vital signs being the most common one. Importantly, the majority of lawsuits involved surgeons with a low level of experience (that is less than 1 year of experience in bariatric surgery). However, it should be noted that this analysis was of cases performed between 1997 and 2005 and included a significant number of operations which are no longer routinely undertaken – such as vertical banded gastroplasty and open gastric bypass. In addition, none of the patients in the cohort underwent gastric band insertion which, again, reflects the timeframe during which this study was conducted.

In the UK, Ratnasingham et al. [6] explored all National Health Service (NHS) claims highlighted by the NHS litigation authority as relating to bariatric surgery over a period of 10 years from 2003 to 2013. Bariatric surgery only accounted for a small proportion of medicolegal cases as well as a small fraction of payouts when compared to other branches of surgical practice. Of the cases analyzed, around half of the claimants were successful and this was secondary to inadequate consent, delay in treatment, retained instrument, and inadequate duration of follow-up. It should be noted that this study identified only seven cases, suggesting that this was in fact a significant underestimate of the true burden of medicolegal cases related to bariatric surgery.

It is important to note that the finding of negligence in all these studies was typically based on a failure to detect complications in a timely fashion as opposed to the complications themselves. Moreover, it should also be noted that these claims were focused on early postoperative complications associated with bariatric surgery and did not include litigation associated with late complications.

In order to address this lacuna, we reviewed bariatric medicolegal cases referred to the senior authors of this chapter over a period of 1 year. This comprised a total of 40 cases of which 17 had early complications (the most common being anastomotic failures and significant bleeding events) and 23 had late complications (the most common being intestinal obstruction secondary to internal herniation following gastric bypass and band slippage and erosion). In ten cases, it was considered that there was a breach of the duty of care leading to actionable harm.

An important observation from our series was that a significant incidence of litigation was brought against nonspecialist centers providing emergency care to patients who had undergone bariatric surgery previously. While such facilities would not be expected to provide expert bariatric care, they would be expected to be able to diagnose and manage a patient accurately and in a timely manner. Further, it is the responsibility of the doctor in a nonspecialist center to discuss such cases with a bariatric unit (ideally, the institution where the surgery was originally performed) at the earliest opportunity and, where possible and appropriate, transfer of the patient to such units should be arranged. However, this should not be at the expense of delivering emergency treatment as the majority of complications after bariatric surgery are general surgical complications such as intestinal obstruction, the management of which should be well within the remit and capacity of any general surgeon covering the emergency service.

Avoiding Medicolegal Pitfalls

Given the rising incidence of medicolegal cases, it is important for clinicians involved in the care of bariatric patients to ensure that they avoid the obvious medicolegal pitfalls. Some key areas which need to be addressed are as follows:

Appropriate Consenting

In a New York court in 1914, Justice Cordozo ruled that all adults of sound mind have a right to determine what happens to their bodies [25]. This was in consequence to a case where a patient had consented for an under-anesthesia uterus examination and woke to find that they had undergone a hysterectomy for a malignant tumor that was identified [27]. This was found to constitute medical battery and this principle underpins the informed consent model we use today [21].

The main elements of informed consent are that consent should be provided voluntarily by a patient with capacity after being provided information about the procedure including significant and common risks, potential benefit, and alternatives to treatment. Legally, the duty of care to provide all the relevant information lies with the caregiver. This was evident in the UK case of Chester versus Afshar where the claimant developed an uncommon complication of surgery but was not informed of the possibility of this preoperatively and successfully sued the practitioner [28].

A significant portion of bariatric medicolegal complaints revolve around inadequate consent. In order to avoid such issues, it is essential that the consenting process is carefully documented with evidence that patients are given the options of both conservative treatment and surgery. With respect to surgical options, it is important that the serious and significant risks associated with surgery are emphasized (for example, for sleeve gastrectomy and gastric bypass – the possibility of leaks, bleeding, and mortality). In addition, the long-term potential consequences of surgery should also be emphasized (for example, gastric band slippage and erosion, gastric bypass strictures, and internal herniation). The possibility of weight regain and excess hanging skin should also be specifically mentioned along with the need for regular follow-up. Some units now rely on preprinted consent sheets in an attempt to address these issues but consenting is a process as opposed to an event. Simply documenting a list of complications on a preprinted form will not prevent successful claims, if there is no evidence that there was a full discussion with the patient prior to surgery on more than one occasion, and that the patient had been given an appropriate “cooling-off period” before surgery.

Change in Operating Surgeon

Like most surgical teams in the public sector, bariatric surgeons work in teams with surgical members ranging from consultants to fellows and more junior trainees. Quite often, the patient may see one member of the team in clinic and meet a different person on the day of the procedure. When consenting, it is therefore very important to ensure that the patient is aware of this and that the surgery may be performed by a different member of the team.

This specific issue has recently been the subject of litigation in the UK. In the case of Jones versus Royal Devon and Exeter NHS Foundation Trust, the judge ruled that a change of the named surgeon (who had seen the patient preoperatively) to a surgical fellow without prior explicit consent constituted a breach of duty of care [29]. This ruling has clear implications not only for training but also for delivery of service where groups of surgeons usually “pool” patients in a common waiting list.

Consent in Children

Bariatric surgery in children and adolescents has been established as a safe and effective method for weight loss; however, it remains a divisive topic [30]. Consent in this group is further complicated as it is usually provided by a carer rather than the patient themselves, often resulting in the procedure being delayed until the patient attains adulthood and is able to consent themselves.

In the UK a significant ruling in the 1980s created the concept of “Gillick competence.” This refers to a young person below the age of 16 years who has the intellectual and cognitive ability to make reasoned decisions about their own care – these patients are deemed as not requiring parental consent to undergo surgery. Thus far, there have been no reported cases of controversy relating to Gillick competence in bariatric surgery but with increasing childhood obesity rates, this is likely to be an important area for bariatric surgeons in the future.

Follow-Up

Unlike traditional excisional or resectional surgery, bariatric patients require lifelong follow-up. Additionally, patients who undergo gastric bypass require vitamin supplementation and monitoring of their micronutrient levels. Although this follow-up does not necessarily need to be performed by the original bariatric team, it is important that on discharge from the bariatric service clearly documented instructions are given to the patient from their primary physician regarding the intervals and the type of follow-up required.

Emergency Presentation

Bariatric patients may present acutely many years following surgery with complications related to the original operation. These patients pose a particular problem when they present to a hospital with limited bariatric experience; but, while such a facility will not be expected to provide expert bariatric care, it would be expected to be able to diagnose a patient and to discuss the management with an appropriate bariatric center. Failure to do so, as discussed above, is a growing area for litigation.

Medicolegal Cases

In order to illustrate some of the issues highlighted earlier in the chapter, a number of anonymized cases are described below.

Case Number 1

A 35-year-old female with a BMI of 47 kg/m2 was referred for bariatric surgery. The patient had been obese since the age of 16 years and had previously attempted multiple diets. The patient was diagnosed with type 2 diabetes mellitus for 5 years and she also had hypertension (which was well controlled with pharmacological monotherapy). Her case was discussed by the MDT and she was listed for a laparoscopic RYGB. The procedure was performed at a regional bariatric surgical center and following an uneventful two-day hospital stay, the patient was discharged with a plan for outpatient review in 6 weeks.

Two weeks following surgery, the patient presented at her local hospital as an emergency with vomiting and abdominal pain. The patient was managed over the weekend in her local hospital and then transferred to a bariatric center on Monday. Two days following transfer, she underwent diagnostic laparoscopy which revealed peritonitis over all the four quadrants of the abdomen. Her procedure was converted to laparotomy and during dissection of the gastro-jejunostomy, a splenic laceration was noted. The spleen was removed, the peritoneal cavity was washed out, and intra-abdominal drains were inserted. Following a prolonged period in the intensive care unit the patient was transferred to the ward and eventually to the community rehabilitation service.

Medicolegal Analysis

The patient’s solicitors originally submitted a letter of claim alleging the following:

  • The patient was inappropriately discharged following her gastric bypass.

  • Following admission to her local hospital, there was an inappropriate delay in the transfer to the bariatric center.

  • The fact that the patient had a splenectomy was evidence of substandard performance of repeat surgery.

Expert Review

The experts felt that the initial operation was satisfactory as was the decision to discharge the patient. With respect to the issue of transferring back to the bariatric center, there was good documentary evidence that the bariatric center was called following admission and appropriate advice was given and enacted upon. In the experts’ opinion, urgent transfer to the bariatric center would not have led to a change in management. Similarly, the experts felt that the decision to perform a laparoscopy and then convert to laparotomy was reasonable and the splenic injury, while unfortunate, was not evidence of negligence.

However, on closer examination of the complete medical records, it was noted that the patient had presented to her general practitioner (GP, primary physician) 7 days following discharge with tachycardia and pyrexia. From the clinical records, it appeared that her primary physician was under the impression that the patient had undergone a gastric band insertion and treated her conservatively. The patient then represented 10 days after the surgery to the GP with pyrexia and abdominal pain. The patient was reassured by the GP who did not contact the bariatric team or the on-call surgeons at the local hospital. This failure to appreciate the severity of the patient’s symptoms was deemed to be a breach of duty of care and the delay in diagnosing the leak was deemed to be significant as on the balance of probabilities, an earlier diagnosis would have lessened the severity of the sepsis and peritonitis and enabled a faster recovery.

Learning Points

This case illustrates the importance of the nonspecialist in the management of bariatric complications. In particular, while the GP would not necessarily have been expected to diagnose the patient’s leak, his failure to contact the bariatric center for advice was deemed to be a materially significant breach of duty of care.

Case Number 2

A 42-year-old female with a BMI 46 kg/m2 self-referred to a surgeon working in the private sector for consideration of bariatric surgery. Following discussion at the outpatient clinic, she consented for a laparoscopic Roux-en-Y gastric bypass which was performed uneventfully.

Three months following surgery, it was noted that the patient has excellent weight loss but complains of persistent nausea and abdominal pain. The patient’s symptoms persisted and she underwent an upper gastrointestinal (GI) endoscopy and gastrograffin swallow which showed no abnormalities. One year following surgery, the patient was discharged from the care of her private surgeon as per her agreed package of care with instructions to contact her primary physician if she had any problems.

The patient still had persistent malaise and nausea and saw her primary physician who referred her to the gastroenterology outpatient clinic for further investigations. In the clinic, she was reviewed and was found to have excellent weight loss with a new BMI of 20 kg/m2. Routine blood tests revealed deranged liver function tests and a low albumin. An ultrasound revealed a gallstone within a thin-walled gallbladder. A magnetic resonance imaging of the biliary tree was then arranged which revealed no abnormalities. A percutaneous liver biopsy revealed nonalcoholic steatosis. She was scheduled for a further outpatient review but prior to that she was admitted as an emergency (15 months after her initial surgery and 3 months after being first reviewed by the gastroenterologists) with peritonitis. Laparotomy revealed an internal hernial defect in the Petersen’s space with gross dilatation and perforation of the blind end (“hockey stick”) of the biliopancreatic limb consistent with a long-standing obstruction. The biliopancreatic “hockey stick” was resected but the patient had a prolonged period of sepsis and unfortunately died 2 weeks after surgery.

Medicolegal Analysis

The patient’s solicitors submitted a letter of claim alleging the following:

  • The presence of an internal hernia was a direct consequence of the negligent failure of the surgeon to close the mesenteric defects intraoperatively.

  • The failure of the bariatric surgeon to diagnose the presence of an internal hernia of the biliopancreatic limb in the initial year following surgery was a breach of duty of care.

  • The failure of the gastroenterologists to diagnosis the presence of an internal hernia of the biliopancreatic limb was a breach of duty of care.

Expert Review

Expert opinion was supportive of the decision not to close the mesenteric defects at the first operation on the basis that this action fulfilled the “Bolam test” (that is, a body of surgeons faced with the same clinical scenario would reasonably choose not to close the mesenteric defects as the evidence for its benefits at the time of surgery was equivocal). However, the experts were very critical of the failure of the bariatric surgeon not to diagnose an internal hernia of the biliopancreatic limb. Although the bariatric surgeon did perform an upper GI endoscopy and gastrograffin swallow, these investigations do not adequately delineate the anatomy of the biliopancreatic limb.

In the opinion of the experts, in the context of a patient presenting with nausea and abdominal pain following gastric bypass, the failure to consider the diagnosis of internal herniation of the biliopancreatic limb and to arrange a CT scan or diagnostic laparoscopy to exclude this possibility was a breach of duty of care. In addition, the lack of clear written advice given to the primary physician by the surgeon following the patient’s discharge from the surgeon’s care (particularly in the context of a patient who was known to have ongoing symptoms) was deemed to fall below the expected standard.

Although the experts were more sympathetic toward the gastroenterologists, their overall opinion was that their failure to appreciate the severity of the patient’s symptoms, her malnourished status, and to either make a timely diagnosis of internal herniation of the biliopancreatic limb, or failing that, to urgently refer the patient on to a bariatric surgeon for an opinion about the cause of her malnutrition was a breach of duty of care. Overall, the collective negligence of the medical teams looking after the patient meant that she suffered from a potentially treatable pathology which directly led to her demise.

Learning Points

This case illustrates the importance of initiating timely and appropriate investigations for postoperative bariatric patients. In addition, although bariatric patients are often discharged from the care of their primary surgeon, there is a responsibility on the surgeon to ensure that there is appropriate handover to the team taking over the patient’s care. Similarly, any team accepting responsibility for the management of bariatric patients needs to be competent in the management of post-bariatric complications, or at the very least have access to a specialist bariatric service to which they can refer for advice and support.

Case Number 3

A 35-year-old female with a BMI 42 kg/m2 self-referred to a surgeon working in the private sector for consideration of bariatric surgery. Following discussion at the outpatient clinic, the patient was offered a laparoscopic sleeve gastrectomy (LSG) procedure. The patient then recontacted the surgeon requesting a banded sleeve gastrectomy instead. The surgeon arranged for the patient to attend a second outpatient appointment, and, after further consultation, the surgeon agreed to perform the procedure for an additional fee. The patient was consented for a banded sleeve gastrectomy procedure and the procedure was completed uneventfully at the private facility.

Ten days after the procedure, the patient presented acutely unwell to the local emergency department. After initial assessment, she was urgently transferred to a bariatric center and underwent a laparoscopy. At laparoscopy, she was found to have a perforation in the midportion of the sleeve under the band. The band was removed and the perforation was repaired. Postoperatively, the patient had a protracted recovery and was eventually discharged from hospital after 2 months. On discharge, she was noted to have nerve neuropathy after her intensive treatment unit stay.

Medicolegal Analysis

The patient’s solicitors submitted a letter of claim alleging the following:

  • The patient had been inadequately counseled and consented for the procedure.

  • The surgeon performing the procedure was inadequately experienced in this operation.

  • The development of the leak postoperatively was evidence of a substandard surgical technique.

  • Had an appropriate surgical technique been used, a postoperative leak would not have occurred.

The operating surgeon’s solicitors responded as follows:

  • The patient had a specific consultation to discuss banded sleeve gastrectomy.

  • The surgeon performing the procedure was inadequately experienced in this operation.

  • The surgeon was highly experienced in inserting gastric bands and performing sleeve gastrectomy procedures, and had also performed primary banded gastric bypasses.

  • The surgeon’s operative technique was appropriate as evidenced by the fact that he had not had a leak from primary bariatric surgery in over 4 years.

  • Postoperative leak is an accepted complication following standard performance of the sleeve gastrectomy.

Expert Review

The experts’ opinion was that although the surgeon performing the procedure had the technical skills to perform the operation, and had undertaken a specific consultation to discuss the banded sleeve gastrectomy, the fact that they had never performed a banded sleeve gastrectomy was material information which was not given to the patient. As such, under the “prudent patient” test, the consent process could not be defended due to this omission.

With regard to the materiality of the breach, the experts accepted that leaks were a recognized complication following sleeve gastrectomy, and that the operation itself (based on the documentation) appears to have been done in an appropriate fashion. That said, the experts’ view was that had the surgeon stated to the patient that he had never performed a banded sleeve gastrectomy, on the balance of probabilities the patient would have elected to undergo a standard sleeve gastrectomy. Based on the fact that the perforation was noted to be at the site of the band, and the fact that the surgeon had (by his own admission) not had a leak from a primary sleeve gastrectomy in over 5 years, on the balance of probabilities it was felt that in these circumstances the claimant would have avoided a leak had she undergone a sleeve gastrectomy and therefore, liability should be conceded by the operating surgeon.

Learning Points

This case illustrates the importance of disclosing all material facts to the patient as part of the consenting process. Although it was reasonable to offer the patient this operation, and there was no suggestion that there were any technical issues with the surgery, the absence of full disclosure of the surgeon’s experience with this particular operation invalidated the consent and as a consequence, the patient’s claim was successful.

Case Number 4

A 45-year-old female with a BMI 60 kg/m2 was referred by her GP for bariatric surgery to her local NHS bariatric unit. She attended her initial assessment at the bariatric unit and was warned about the long waiting times for publicly funded surgery. She then consulted her GP complaining that the prolonged wait for surgery was impacting her physical and mental health and was referred to a private bariatric surgeon for consideration of surgery.

She attended an outpatient appointment with the surgeon in the private sector. During the consultation, the patient disclosed that she was recently an inpatient in a psychiatric unit for severe depression and that the psychiatric unit was supportive of the patient’s decision to seek bariatric surgery. Notes from the consultation state that the patient stated that she was “motivated to undergo bariatric surgery” and “was in the best psychological health for years.” The patient was referred on for further assessment by the counselor and dietitian who both felt that she was an appropriate candidate for bariatric surgery.

The patient went on to have LSG, which was uneventful. However, on the fifth postoperative day, the patient represented to hospital with severe abdominal pain. She underwent a laparoscopy where a staple line leak was identified in the proximal stomach. This was managed with insertion of drains and endoscopic stenting. The patient required a prolonged in-hospital stay following which she had a significant deterioration in her mental health status requiring psychiatric input.

Medicolegal Analysis

The patient’s solicitors submitted a letter of claim stating the following:

  • The psychological assessment carried out preoperatively for the patient by the counselor was inadequate.

  • The patient did not receive an assessment from a consultant psychiatrist.

  • There was a lack of a minuted MDT meeting discussion.

  • A reasonable MDT would not have proposed bariatric surgery for a patient so soon after requiring admission to a psychiatric unit.

  • Had the surgical procedure been delayed, she would have been in a more robust state of mind to tolerate any complication that may occur and therefore not have suffered her mental health sequelae.

Expert Review

The experts felt that since the patient did undergo an assessment by a surgeon, dietician, and counselor, in the context of a private (i.e., non-NHS) service, the absence of a minuted formal MDT meeting was not a breach of duty of care. The experts were, however, critical of the failure of the surgeon to critically evaluate the patient’s self-reported statements regarding her mental health status. It was felt that in the context of her recent admission under the psychiatrist, the failure of the surgeon or counselor to request details from her psychiatrist was a breach of duty of care.

However, with regard to the significance of this breach, it was noted that the patient had requested bariatric surgery, had a very high BMI, and had been referred by her GP (who was aware of her mental health status). An expert psychiatrist was instructed who concluded that while mental health deterioration was a potential consequence following bariatric surgery, there was no specific intervention which could have been undertaken preoperatively to have reduced this risk. Therefore, the experts concluded that though there was a breach of duty of care in failing to contact the patient’s psychiatrist, it was clearly evident that the patient wished to proceed with the surgery. They added that if all the information had been made available to the MDT (including a summary of her psychiatric history), the consensus opinion of the MDT would have been that on the balance of probabilities, the risks of surgery were outweighed by its potential benefits and therefore the MDT would not have approved the patient for surgery. Hence, on the basis of a failure to prove causation, the patient’s claim was not successful.

Learning Points

This case illustrates the importance of a comprehensive preoperative MDT assessment prior to proceeding with bariatric surgery. Patients undergoing surgery are often psychologically vulnerable and may ascribe any mental health issues to their obesity. Such patients may therefore be keen to proceed with bariatric surgery and it is important to seek independent objective reviews of their medical, psychological, surgical, and dietetic status in order to make an informed MDT decision as to the advisability of surgery.

Summary

Bariatric surgery represents a new surgical paradigm with respect to the varied and evolving nature of procedures performed and the need for long-term monitoring and management. As a consequence, we are seeing increasing litigation which is not confined to the performance of the operations alone. With appropriate multidisciplinary involvement and robust protocols for the pre-, intra-, and postoperative management of these patients, this risk can be mitigated. Finally, it should be noted that the authors have focused exclusively in this chapter on the medicolegal aspects of patients already enrolled on bariatric surgical programs. However, in countries such as the UK with predominantly state-funded health care systems, there is a growing problem with access to publicly funded bariatric surgery and it is likely that rationing of bariatric surgery will also become a significant source of medicolegal claims in the future.

Key Learning Points

  • There is a rising incidence of medicolegal claims following bariatric surgery.

  • The underlying reasons for this are multifactorial including high patient expectations, increasing volume of surgery, and the incidence of long-term complications following surgery.

  • The majority of medicolegal cases fall under civil law and the expected standard of care can vary across jurisdictions.

  • With appropriate multidisciplinary involvement and robust protocols for the pre-, intra-, and postoperative management of bariatric patients, medicolegal risks can be mitigated.