It's medical malpractice to perform bariatric weight loss surgery on a patient who doesn't meet the eligibility criteria

Bariatric weight loss surgery is an option that’s helped many people who couldn’t lose and keep off weight with the traditional methods of diet and exercise. As a Houston, Texas medical malpractice attorney, though, I’m well-aware of the significant risks of bariatric surgery.

I bet there’s not a week that goes by at Painter Law Firm when we don’t receive a call from someone whose life has been wrecked by bariatric surgical complications.

It’s common to hear from people who are experiencing long-term severe pain, uncontrollable nausea and vomiting, malnutrition, and the inability to keep food and water down. I’ve represented clients who were in the struggle of their lives to maintain their weight over 100 pounds.

In my experience, most bariatric surgery practices are a volume business. By this, I mean that they run their offices like an assembly line. There’s a line of patients marched through the operating room for weight loss procedures. Later, there is a line of patients waiting for rubber-stamp post-operative follow-up appointments.

In this type of situation, there is a risk of surgeons and nurses failing to pay attention to the individual patients with individual symptoms and needs sitting right in front of them.

Who’s a good candidate for bariatric surgery?

Given the well-documented real risks of bariatric surgery, there’s a question that’s important to consider if you’re thinking about a weight-loss procedure, or if you’ve had a terrible outcome: What are the factors that qualify someone as a good candidate for bariatric surgery?

According to the American Society for Metabolic and Bariatric Surgery, the qualifications for bariatric surgery in most areas include:

• A body mass index (BMI) of 40+ or being over 100 pounds overweight.

• A BMI of 35+ accompanied by one or more obesity-related conditions, such as Type II diabetes mellitus, hypertension, sleep apnea, other respiratory disorders, non-alcoholic fatty liver disease, osteoarthritis, lipid disorders, gastrointestinal conditions, or heart disease.

• Unable to achieve sustained healthy weight loss for a period of time with prior weight loss efforts.

In addition, for patients who meet these qualifications, the standard of care generally requires bariatric surgeons to order psychological and nutritional consults (including a trial period of dieting monitored by a nutritionist) to ensure that bariatric surgery would be a good and safe choice for the patient.

Taking the wrong patients to surgery is a medical error

When a bariatric surgeon recommends or agrees to take a patient to surgery who doesn’t meet the surgical criteria, it’s a mistake that constitutes medical malpractice. It’s inappropriate and unsafe to subject a patient to the inherent risk of bariatric surgery when the procedure itself is unnecessary.

A federal court judge entered a decision in a botched gastric bypass surgery case that addresses this precise issue.

The healthcare at issue began when Christina Mettias’s primary care doctor referred her to a bariatric surgery program at a hospital. Christina enrolled in a healthy lifestyles program that educated and counseled her on weight loss, in conjunction with the bariatric surgery program.

At her first meeting, she had a BMI of over 40, so she qualified for bariatric surgery. Over the next five months, though, Christina participated in the healthy lifestyles program and lost more than 30 pounds, incorporating exercise, dietary changes, and behavioral modifications into her lifestyle.

With that much weight loss, her BMI decreased from over 40 to 33. Although she no longer met the criteria for bariatric surgery, the bariatric surgeon associated with the healthy lifestyle program persisted in recommending that she undergo a Roux-en-Y gastric bypass surgery.

Unfortunately, Christina was one of those patients who had terrible complications from the weight loss procedure. It started with severe abdominal and chest pain. She faced multiple hospital admissions because of fluid accumulation in her upper abdominal cavity.

Severe adhesions formed in her abdomen, liver, diaphragm, gastric pouch, and gastric remnant. During a repair surgery, a surgeon punctured her esophagus and diaphragm. She had to be admitted to the intensive care unit after these additional complications and was treated for bowel perforation, sepsis, and an internal infection and abscess.

Looking over her post-operative course, it looks like Christine experienced just about every bad outcome and complication possible with bariatric surgery.

Christina filed a medical malpractice lawsuit against the surgeon and hospital. Based on her weight loss that put her outside the criteria for bariatric surgery, she alleged that the surgeon shouldn’t have recommended Roux-en-Y gastric bypass surgery and the hospital shouldn’t have allowed it to go forward.

The defendants filed motions to dismiss her claim on the ground of informed consent, but the federal court rejected these arguments. The court’s opinion was informed by deposition testimony that the physicians didn’t inform Christina that national medical standards dictated that she shouldn’t undergo the recommended bariatric surgery because her BMI was below 35 and she was losing weight through non-surgical means.

What you can do

There’s the old saying that, “If your only tool’s a hammer, everything looks like a nail.” I often think that this sums up the thinking of some surgeons.

As patients, it’s important to know the criteria for elective bariatric surgeries. If you’re considering one of these weight-loss procedures, ask your surgeon if you meet the established criteria. The standards are there for a reason—to keep patients safe.

Similarly, if you’ve been seriously injured because of undergoing a bariatric procedure, then you may want to investigate whether you were an appropriate candidate for surgery in the first place. Contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.