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Exposures Not Thinning Popularity of Bariatric Surgery

With more procedures also comes increased medical malpractice risk for the providers and facilities performing these procedures.

November 5, 2004
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As a growing population of obese Americans turns to surgery as a drastic means to shed pounds, hospitals performing these procedures are seeing their liability exposures rise.

    Hospitals are seeing a surge in demand for bariatric surgery--procedures to treat obesity by reducing the size of the stomach--and a potential financial windfall associated with performing such surgeries. But with more procedures also comes increased medical malpractice risk for the providers and facilities performing these procedures.

    Having policies and procedures in place that require safe and appropriate equipment, trained and competent nonphysician staff and credentialed physicians will go a long way in mitigating any potential problems, medical risk management experts say.

140,000 surgeries
    Of the estimated 60 million obese individuals living in the United States, 9 million are considered morbidly obese, or at least 100 pounds over the ideal body weight for a male and 80 pounds over the ideal weight for a female, according to the Washington-based American Obesity Association.

    Not surprisingly, the growing obesity epidemic has spawned increased demand for bariatric surgeries, the most popular of which is gastric-bypass surgery, a procedure that creates a small pouch in the stomach by stapling shut the upper portion of the stomach and attaching the pouch to the small intestine.

    At the same time, high-profile gastric-bypass surgeries performed on such celebrities as pop singer Carnie Wilson, NBC weatherman Al Roker and American Idol's Randy Jackson have further publicized the surgery and fueled additional consumer demand for the procedure.

    In 2004, the number of bariatric surgeries performed is expected to top 140,000, according to the Gainesville, Fla.-based American Society for Bariatric Surgery. That is up 36.3% from the number of procedures performed in 2003 and up 122.9% from estimated 63,100 procedures performed in 2002.

    But it's not just demand for the procedures that is inducing hospitals to offer bariatric programs, experts say. With an average price tag of $25,000 per surgery--of which surgeons receive $6,000 to $8,000 and the hospital the rest--it's become very lucrative for bariatric surgeons and the hospitals that offer bariatric procedures today.

    And that can be a risky proposition. 

    "It's a lot more dangerous than hospitals perceive," says Terri Edwards, a vice president with Palmer & Cay Inc.'s health-care industry practice in Atlanta. "A lot of facilities are convinced that it's a quick way to make money because there's a lot of need for it. It's gone beyond health issues and is now almost becoming cosmetic," she says of the procedures. "We're not doing enough research into why a patient is seeking this type of surgery and whether all other areas have been exhausted as far as the patient being able to lose weight. People don't realize it's a very, very drastic procedure."

    In reality, "you're doing very extensive abdominal surgery on very sick people--people with very significant co-morbidities," says Paul Simonson, a plaintiff’s attorney in the New York law firm of Simonson Hess & Leibowitz PC. "Putting aside the malpractice issue, I think there is significant risk of interoperative complications, postoperative complications and certainly postoperative leaks, which are probably the most common source of problems that result in litigation," he says.

    "On the average day, we will see five to 10 inquiries from gastric-bypass patients. That doesn't mean that every one of them has a malpractice case; far from it. But they all have problems of some nature," Simonson says.

The staple breaks
    Experts say most of the medical malpractice cases today from bariatric surgery arise from postoperative complications.

    "I think the issue of infection is very significant," says Scott D. Buchholz of Dummit Briegleb Boyce & Buchholz in San Diego. "The only thing that is special with regard to this surgery as opposed to other abdominal surgery ... is the issue of the stapler," he says. "Quite often, the surgeons do their best to staple off ... the stomach, and sometimes the staple breaks or it doesn't affix. And any time you get stomach contents in the abdomen area, you're talking infection. And when you have infection with these people, whose immune system is already compromised, not just because of the surgery but because of underlying co-morbidities, it's like a wildfire."

    Another issue is the "mentality of the surgeons," Simonson says. In many instances, he says, surgeons "know that something is a complication and that it can occur with good techniques, but when it happens to them, they don't want to believe that it is happening to them. And that is where we see a lot of delayed diagnosis in anastomotic leak cases where people ... are dying," he says.

    Further complicating the issue, Buchholz notes, is that in order to determine whether there is a leakage problem with the staple, a computerized axial tomography scan is needed, and typical CAT scan machines are built only to fit patients weighing up to 400 pounds.

    "So you've got to make sure you've got the right-sized CAT scan that can hold 750 pounds or 1,000 pounds. I've got a couple of cases where I've dealt with patients who claim there was a delay in finding out there was a staple problem because (the hospital) couldn't fit them into the CAT scan," he says.

    Indeed, experts say that having the appropriate hospital equipment to handle obese patients, though very expensive, is necessary to minimize their exposure to potential malpractice claims.

    "Patient safety is a big issue," says Wendy Campbell of San Diego-based legal and risk management consulting firm Campbell & Associates. "The hospital can certainly mitigate some of its risk with the appropriate equipment."

    This includes lifting and moving devices, wheelchairs, beds, shower chairs, walkers and special clothing designed to fit obese patients, she says. "All of these are available, but they really need to be considered and obtained prior to providing the service."

    Having competent and trained staff within the bariatric program--from the physician down to the nutritionist--also is very important in mitigating medical malpractice exposure, experts say.

    "From a risk-management standpoint, a great, great deal of the issue deals with the number of procedures that you perform and how skilled and trained the surgeons are," says Peggy Nakamura, assistant vice president, chief risk officer and associate counsel for Adventist Health System/West in Roseville, Calif. The facility offers bariatric surgeries in three of its hospitals, two of which began offering the procedures within the past year.

"In each of our situations, the surgeons who were instrumental in getting the program started had participated in hundreds and hundreds of bypass and other types of bariatric procedures prior to getting our program started," she says. "That's been a tremendous asset for those programs. We're not talking someone who's maybe done 10 procedures; we're talking about people with years of experience in this area."

    Indeed, plaintiff's attorney Simonson says that if he were establishing a bariatric surgery program at a hospital today, he "would definitely set up some minimum standard for experience before I would allow (surgery) privileges. And if they were going to do laparoscopic surgery ... I would require a fellowship in minimally invasive surgery before I allowed someone to do bariatric surgery laparoscopically," he says.

    "Training of the staff is essential--all the staff, meaning nursing, radiology, food/nutrition services, social services, intake. It's really a multidisciplinary approach," Campbell says. Medication dosages, for example, are different with obese patients, and nurses need to know that in addition to all the other postsurgical procedures that go along with abdominal surgery and obese patients, she says.

Are they certified?
    Although many hospital risk managers may take the initiative in implementing such policies and procedures, in some cases medical malpractice insurers are demanding that such practices be in place before issuing a policy.

    "We can and will provide coverage for facilities that are performing bariatric procedures provided we can underwrite to the exposure and feel comfortable with the risk," says Meg Gaffney, medical malpractice product manager for Avon, Conn.-based One Beacon Professional Partners.

One Beacon looks at how many surgeries the physicians perform each year and whether physicians are certified by the American Board of Surgery to practice bariatric surgery. The underwriter also wants to know more about the time interval between when a patient makes the decision to undergo the procedure and when the surgery is performed, Gaffney says.

"In our opinion, the longer the interval the better," she says, "because we feel that during that period of time, there should be a counseling component for the patient and a nutritional component between the patient and the provider." Patients also should demonstrate that all nonsurgical means and methods of losing weight have been exhausted, she adds.

Zurich American Insurance Co. also is taking a closer look at hospitals providing bariatric surgery, according to Susan Salpeter, assistant vice president for health-care risk-management services in Chicago.

    "We look at how they credential their physicians" and whether they are following the American Society for Bariatric Surgery guidelines for granting privileges in bariatric surgery, she says. Zurich also looks to see if the hospital is training its staff, has the appropriate equipment and is putting together a team approach so people in nursing, anesthesia, surgery, mental health and nutrition are all working together.

    "We also look to see if they have criteria for patient selection," Salpeter says. "It's always a big concern to be sure they are (performing the surgery) on the people who need the procedure and are committed to a really long-term life-changing procedure," she says.

From the November1 issue of  Business Insurance. Written by Sally Roberts.

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