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Medicolegal Analysis of 100 Malpractice Claims
Abstract & Commentary
By Namir Katkhouda, MD, FACS, Professor of Surgery, Chief, Minimally Invasive Surgery, University of Southern California (USC)-Los Angeles, CA. Dr. Katkhouda is a consultant for Baxter, Ethicon, Storz, and Gore.
Synopsis: This study found that leaks and delayed diagnosis were the most common cause of litigation.
Source: Cottam D, et al. Medicolegal analysis of 100 malpractice claims against bariatric surgeons. Surg Obes Relat Dis. 2007;3:60-66.
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, as well as improve patient care.
Methods: A total of 100 consecutive bariatric lawsuits were reviewed by a consortium of experienced bariatric surgeons, as well as 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 diagnostics 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.
There are several interesting findings. First, there were no lap bands included in this series. It is not clear why, but one explanation is that the rate of lawsuits following a lapband procedure is indeed very low. The explanation may simply be because the lapband has very low, immediate, life-threatening complications; it is unlikely to have an early mortality, and most complications occur late in the course of the follow-up. This is actually what is making the band so attractive among patients and surgeons alike. Leaks, as expected, are the most common reason for lawsuits. What we know, and confirm in the paper, is that it is almost always a delay in the diagnosis and treatment of the leak rather than the leak itself.
Tachycardia, postoperatively, is not recognized as an ominous sign, and many surgeons will rely on the gastrophin swallow to rule out a leak. In my experience of medicolegal review, the swallow was always negative even though the patient was tachycardic. Surgeons should also recognize such signs as a normal or low white cell count with a left shift or even bandemia, which by itself should prompt an immediate return to the operating room, especially in the presence of mild abdominal symptoms.
A patient returned early for a leak will survive and not sue.
Another important factor of litigation is communication and honesty with the patient and his family. All lawyers will say that communication is the best anti-lawsuit tool.
Death, unfortunately, as shown in this paper, constitutes a major risk management situation, and in this paper, of 100 cases, it constituted more than 50% of the cases.
Finally, of note, the majority of the surgeons in this article had performed more than 100 cases, so litigation is not just reserved for the inexperienced. Even experts can get sued. In my opinion, in the event of a lawsuit, particularly if it has no merit, surgeons should not settle, and should have their day in court. With a vigorous defense, the odds of winning are vastly in favor of the surgeon; more than 80% of medicolegal verdicts are in favor of the doctor. This is confirmed here where evidence of medical negligence was found in only 28% of the cases.