Biting the Hands that Feed "the Alligators": A Case Study in Morbid Obesity Extremes, End-of-Life Care, and Prohibitions on Harming and Accelerating the End of Life

Obesity, recognized as a disease in the U.S. and at times as a terminal illness due to associated medical complications, is an American epidemic according to the Centers for Disease Control and Prevention ("CDC"), American Heart Association ("AHA"), and other authorities. More than one third of Americans (39.8% of adults and 18.5% of children) are medically obese. This article focuses on cases of "extreme morbid obesity" ("EMO")-situations in which death is imminent without aggressive medical interventions, and bariatric surgery is the only treatment option with a realistic possibility of success. Bariatric surgeries themselves are very high risk for EMO patients. Individuals in this state have impeded mobility and are partially, if not entirely, bedridden, highly vulnerable, and dependent upon caregivers who often are enablers feeding their food addictions. The article draws from existing Centers for Medicare and Medicaid Services ("CMS") and Social Security Administration ("SSA") policies and procedures for severe obesity treatment and disability benefits. The discussion also encompasses myriad areas in which the law imposes a duty to report on professionals to protect vulnerable individuals from harm from others, and constraints and prohibitions on accelerating the end of life. The article proposes, among other law and policy measures, to introduce an obligation on medical professionals to investigate and report instances of enablement when food addiction has put the lives of individuals at risk of imminent death. The objectives of the proposals are to give providers more leverage to prevent food addiction enablers from impeding treatment and to enable EMO patients to comply with treatment protocols, to save lives and, ironically, to empower enablers to stand firm against the demands of individuals whose lives have been consumed by their food addictions.

Advances in endoscopic balloon therapy for weight loss and its limitations

The field of medical and surgical weight loss is undergoing an explosion of new techniques and devices. A lot of these are geared towards endoscopic approaches rather than the conventional and more invasive laparoscopic or open approach. One such recent advance is the introduction of intrgastric balloons. In this article, we discuss the recently Food and Drug Administration approved following balloons for weight loss: the Orbera™ Intragastric Balloon System (Apollo Endosurgery Inc, Austin, TX, United States), the ReShape^® Integrated Dual Balloon System (ReShape Medical, Inc., San Clemente, CA, United States), and the Obalon (Obalon^® Therapeutics, Inc.). The individual features of each of these balloons, the method of introduction and removal, and the expected weight loss and possible complications are discussed. This review of the various balloons highlights the innovation in the field of weight loss.

Medical Malpractice in Bariatric Surgery: a Review of 140 Medicolegal Claims

OBJECTIVE

Given the current rate of obesity in the USA, it has been estimated that close to half of the US adult population could be obese by 2030, resulting in greater demand for bariatric procedures. Our objective was to analyze malpractice litigation related to bariatric surgery.

METHODS

We conducted a retrospective review of Westlaw (Thompson Reuters) of all bariatric operations that resulted in the filing of a malpractice claim. Each case was reviewed for pertinent medicolegal information related to the procedure, claim, and trial.

RESULTS

The search criteria yielded 298 case briefs, of which 140 met inclusion criteria. Thirty-two percent (n = 49) of cases involved male plaintiffs (patients). Mean patient age with standard deviation (SD) was 43 (10) years. The most common procedure litigated was the Roux-en-Y gastric bypass (76 %, n = 107). Overall, the most common alleged reason for a malpractice claim was delay in diagnosis or management of a complication in the postoperative period (n = 66, 47 %), the most common of which was an anastomotic leak (45 %, n = 34). Death was reported in 74 (52 %) cases. Fifty-seven cases (47 %) were decided in favor of the plaintiff (patient), with a median award payout of $1,090,000 (interquartile range [IQR] $412,500 to $2,550,000).

CONCLUSION

Delay in diagnosing or managing complications in the postoperative setting, most commonly an anastomotic leak, accounted for the majority of malpractice claims. Measures taken to identify and address anastomotic leaks and other complications early in the postoperative period could potentially reduce the amount of filed malpractice claims related to bariatric surgery.

LEVEL OF EVIDENCE

III.

[Constitutional analysis of Mexican Official Norm NOM-174-SSA1-1998 for the handling of obesity]

The First Chamber of the Mexican Supreme Court of Justice decided, by a majority of four votes, on a case where it had to be evaluated if some articles of a Mexican Official Norm (NOM) on obesity violated human rights. The majority in the chamber concluded that the restrictions went against Medics' prescribing or therapeutic rights, and therefore their freedom to work. Justice Cossío Díaz voted against the judgment and wrote a separate opinion where he holds, first of all, that the prescribing right works as a guideline for the medical profession and is not an essential element of the freedom to work. Secondly, he points out that the freedom to work is not an absolute right, for it has certain limits permitted by the Constitution. Consequently, experts' opinions should have been consulted for them to be able to determine if the NOM´s requirements were in accordance with the Constitution. Finally, he considers that the judgment should have introduced a balancing test between freedom to work and the patient's health rights, since this last-mentioned right was what the NOM intended to protect.

Quality control in gastrointestinal surgery

We analyzed the Mexican legal framework, identifying the vectors that characterize quality and control in gastrointestinal surgery. Quality is contemplated in the health protection rights determined according to the Mexican Constitution, established in the general health law and included as a specific goal in the actual National Development Plan and Health Sector Plan. Quality control implies planning, verification and application of corrective measures. Mexico has implemented several quality strategies such as certification of hospitals and regulatory agreements by the General Salubrity Council, creation of the National Health Quality Committee, generation of Clinical Practice Guidelines and the Certification of Medical Specialties, among others. Quality control in gastrointestinal surgery must begin at the time of medical education and continue during professional activities of surgeons, encouraging multidisciplinary teamwork, knowledge, abilities, attitudes, values and skills that promote homogeneous, safe and quality health services for the Mexican population.

Obesity surgery: French medico-legal aspects

The demand for bariatric surgery is expected to increase. It is a procedure that carries a high surgical risk, and a risk of postoperative complications due to the pathologies associated with obesity. Obesity surgery is not classified as plastic surgery, but may subsequently lead to plastic surgery-type operations. Malpractices in the field of obesity surgery are most frequently at the pre-operative stage. In the absence of any fault, a patient may obtain indemnification by "national solidarity". Physicians and surgeons have an obligation to be able to prove that they informed their patients properly.

TRICARE Program; surgery for morbid obesity. Final rule

This final rule adds a definition of Bariatric Surgery, amends the definition of Morbid Obesity, and revises the language relating to the treatment of morbid obesity to allow benefit consideration for newer bariatric surgical procedures that are considered appropriate medical care. The final rule removes language that specifically limits the types of surgical procedures to treat co-morbid conditions associated with morbid obesity and retains the TRICARE Program exclusion of non-surgical interventions related to morbid obesity, obesity and/or weight reduction. This final rule is necessary to allow coverage for other surgical procedures that reduce or resolve co-morbid conditions associated with morbid obesity and the use of the Body Mass Index (BMI), which is the more accurate measure for excess weight to estimate relative risk of disease. As new technologies or procedures evolve from investigational into generally accepted norms for medical practice, the statutes and regulations governing the TRICARE Program allow the Department to offer beneficiaries these new benefits. These changes are required in order to allow the Department to provide these newer technologies and procedures for the treatment of morbid obesity as they evolve.

[Funding of obesity surgery: application, appeal and lawsuit]

Die deutsche Bevölkerung ist mit adipositaschirurgischen Verfahren unterversorgt. Dieser beklagenswerte Umstand hat seinen Grund in der restriktiven, nicht selten rechtswidrigen Genehmigungspraxis der Gesetzlichen Krankenkassen. Die Zahl der Patienten, die sich dagegen wehren, steigt stark an. Ablehnende Entscheidungen können mit einem Widerspruch und einer Klage angefochten werden. Die Rechtslage ist unklar, die Rechtsanwender verunsichert. Verschiedene Gerichte behandeln vergleichbare Sachverhalte völlig unterschiedlich. Dennoch sind die Erfolgsaussichten gut: Die deutschen Sozialgerichte entscheiden in letzter Zeit zunehmend patientenfreundlich. Die Chancen, in einem Widerspruchs- oder Klageverfahren zu obsiegen, steigen rapide an, sobald ein Body Mass Index (BMI) von 60 kg/m² erreicht ist. Funding of Obesity Surgery: Application, Appeal and Lawsuit Due to the fact that the statutory health insurance (GKV) follows a restrictive authorisation practice the German population is undersupplied with bariatric operations. The number of patients who refuse to accept this practice increases considerably. Negative decisions can be contested by appeal and lawsuit. The legal situation is yet unclear, those applying the law, such as lawyers, judges and the health insurance authorities, are confused and disorientated. In absolutely comparable cases different courts come to different decisions. Nevertheless the topic is worth the fight: The German social courts are passing more and more patient-friendly judgements. Cases are easily won by plaintiffs if the body mass index (BMI) is higher than 60 kg/m².

Medicolegal analysis of 100 malpractice claims against bariatric surgeons

BACKGROUND

Very few studies have addressed malpractice litigation specific to bariatric surgery. This study was designed to analyze litigation trends in bariatric surgery to prevent further lawsuits and improve patient care.

METHODS

A total of 100 consecutive bariatric lawsuits were reviewed by a consortium of experienced bariatric surgeons and an attorney specializing in medical malpractice.

RESULTS

Of the 100 lawsuits, 45% were reviewed for defense attorneys. The mean patient age was 40 years (range 18-65), 75% were women, 81% had a body mass index of <60, 31% were diabetic, and 38% had sleep apnea. Of the surgeons, 42% had <1 year of experience, and 26% had done <100 cases. Although 69% of the physicians were members of the American Society of Bariatric Surgery, only 22% had detailed consent forms. The surgical procedures were performed between 1997 and 2005 and included Roux-en-Y gastric bypass (78% total, 33% open, and 45% laparoscopic), vertical banded gastroplasty (3%), minigastric bypass (6%), biliopancreatic diversion/duodenal switch (4%), and revision (9%). Of the 100 cases, 32% involved an intraoperative complication and 72% required additional surgery. The most common adverse events initiating litigation were leaks (53%), intra-abdominal abscess (33%), bowel obstruction (18%), major airway events (10%), organ injury (10%), and pulmonary embolism (8%). From these injuries, 53 patients died, 28% had a full recovery, 12% had a minor disability, and 7% had major disabilities. Evidence of potential negligence was found in 28% of cases. Of these cases, 82% resulted from a delay in diagnosis and 64% from misinterpreted vital signs.

CONCLUSIONS

This study found that leaks and delayed diagnosis were the most common cause of litigation. Even experienced bariatric surgeons should understand the most common errors made by others to prevent complications and avoid litigation.