When it comes to operating rooms, two surgeons are not necessarily better than one

A patient who was terribly injured because of poor surgical care involving a gastric sleeve bariatric procedure and hiatal hernia repair hired Painter Law Firm to investigate the care provided by the surgical team. Both procedures were performed by the same surgeons during one visit to the operating room at a suburban Houston hospital.

Over three years after the initial procedures, this person still experiences daily nausea and vomiting and has difficulty holding anything down. Although she had previously been pretty healthy and working in a good job, since that first day in the operating room, she has been in and out of the hospital more times than I can count.

When someone has these types of problems, gastric outlet obstruction is at the top of the potential diagnosis list. In my experience as a Houston medical malpractice attorney, gastric outlet obstruction is pretty common in weight-loss surgery patients. It usually happens when the surgeon makes a mistake during a bariatric surgery by making the anatomy too tight, so it is very difficult for anything to pass through the stomach into the intestines.

As part of our investigation of this case, we retained a board certified surgeon, who reviewed the medical records and radiology images with us. The expert concluded that, in this case, the patient’s problem was not gastric outlet obstruction; it was a failed hiatal hernia repair.

A hernia is a defect or opening in muscle or tissue that allows an organ to squeeze through it and get to place where it should not be. The hiatus is a natural opening in the diaphragm, through which the esophagus passes to connect to the stomach. So, a hiatal hernia is when stomach travels up through the hiatus and goes above the diaphragm—it should be located entirely below the diaphragm.

A hiatal hernia is a common condition. Many people have a hiatal hernia but do not know about it because they have no symptoms. If it becomes a problem, it can be surgically corrected. Any time a patient has bariatric surgery, the surgeon should look for and repair any hiatal hernia that is present. The repair is typically quick, involving pulling the stomach down back below the diaphragm, followed by making a few stitches to tighten the hiatus.

Two surgeons in the room

For two days in a row after surgery, my client started complaining of unusually-intense pain, nausea, and vomiting. The surgeon ordered radiology studies to see if anything was wrong, which showed a hiatal hernia. Remember, the hiatal hernia was supposed to have been repaired a day or two earlier.

Our expert testified that this was evidence that surgical team had not repaired the hiatal hernia correctly in the first place. I use the word “team” because there were two fully-trained, experienced bariatric surgeons in the operating room and participating in this patient’s surgery.

One surgeon was called the primary surgeon and the other was called the assistant surgeon. Having two surgeons from the same specialty participate together in one operation is commonplace among various surgical specialties.

For example, the American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons published a joint position paper on the role of first assistant surgeons. The position paper described the role of assistant surgeons as “actively assisting” the main surgeon, including exposure (helping to open or expose the part of the body that will be operated on), hemostasis (managing bleeding), and other technical functions that will help ensure “a safe operation and optimal results for the patient.”

In my client’s case, both the primary surgeon and assistant surgeon—an extra set of eyes—missed the fact that they had not pulled down the stomach below the diaphragm before making the two stitches to tighten the hiatus.

When I took the deposition (sworn testimony) of the primary surgeon, he said that he relied on the assistant surgeon throughout the procedure and explained that sometimes the assistant surgeon even had a better view of what was going on during the operation. When I deposed the assistant surgeon, he claimed that his role was so minor that any reasonable person would wonder why he was even in the operating room.

Considering that this was a pretty short and straight-forward operation for any competent bariatric surgeon, it made me wonder if two surgeons were really needed in the first place. I concluded that this was an example of where two is not better than one—maybe each surgeon was relying on the other to pay close attention as the simple hiatal hernia repair was completed.

Fouled-up follow-up

When a surgery is complete, the assistant surgeon usually signs off from the patient’s care, and follow-up is managed by the primary surgeon. Unfortunately, in my client’s case, the primary surgeon was as inattentive in the post-operative care as he was during the surgery. The surgeon ignored the fact that two radiology images showed a hiatal hernia was still present, even after the failed repair attempt.

Our expert explained that the botched hiatal hernia repair explained the symptoms that this patient had, including extreme pain and uncontrollable nausea and vomiting—and that the patient needed taken back to surgery to get it fixed.

Instead, the surgeon waited about a month to take this patient back to surgery, and by then her stomach had gotten twisted over and over again, in what is described as gastric volvulus. Think of it like the tangled mess that a phone cord can get into. Once is stays in that position for a while, it is next to impossible to fix. That is why this unfortunate woman has had numerous surgeries since then and will never be able to eat or drink again like a normal person.

We are here to help

This client came to Painter Law Firm shortly before the two-year statute of limitations would expire in her case. She had hired another firm to handle her medical malpractice case over a year earlier, but they dropped her, without explanation, with three months left before her claims would be time-barred.

Although it is not always possible to take on a case that late in the timeline, I am glad that we were able to help here and negotiate a good pre-trial settlement that resolved her case. This is a good example of how experience matters.

We are here to help

If you or someone you care for has been injured because of bariatric or surgical malpractice, call 281-580-8800, for a free consultation with an experienced medical malpractice lawyer at Painter Law Firm, in Houston, Texas.


Robert Painter is a medical malpractice lawyer based in Houston, Texas, where he is a member of Painter Law Firm. Robert Painter has handled numerous bariatric and surgical medical malpractice cases for patients and their families who have been injured as a result of the mistakes and negligence of doctors, surgeons, nurses, and hospitals.

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.