Obesity is a growing problem in our society, so it’s no wonder that bariatric surgery is also on the rise. While bariatric surgery can be a life changing and lifesaving procedure, it is also very risky and legal claims are becoming more common from patients who have undergone surgery.

So, what is bariatric surgery?

Bariatric surgery refers to a variety of surgical procedures including both open and laparascopic procedures which aim to induce weight loss through a physical reduction in the size of the stomach or its capacity to hold contents. There are 3 main types of bariatric surgery – gastric banding, gastric bypass and sleeve gastrectomy. In Australia the vast majority of surgery performed is lap-banding.[i]

Why is bariatric surgery increasing?

The COAG Reform Council Report Healthcare 2011-2012: Comparing performance across Australia released in May 2013 states that in 2011-12, 63% or nearly 2 in 3 adult Australians were overweight or obese.

It is also well recognised that obesity can lead to other health problems such as diabetes, cardiovascular disease and sleep apnoea. It is no wonder then that a medical procedure that potentially has the capacity to reduce an individual’s weight and thereby improve their overall health would be very popular. So bariatric surgery is gaining popularity in both medical and lay circles.

The Clinical Practice Guidelines for the Management of Overweight and Obesity in Adults states that bariatric surgery is indicated for patients with a BMI greater than 40 or a BMI greater than 35 and serious medical co-morbidities. The guidelines note that the surgery is increasingly being utilised in people with lower BMIs and that it is one of the most cost effective treatments available.

There are many advocates of the surgery and there has been significant media attention of late to the call for bariatric surgery to be made more widely available. Some experts go so far as to suggest that bariatric surgery should be more widely available through the public health system for adolescents.[ii]

What are the risks?

Bariatric surgery is not without risk. Patients undergoing the surgery often have a very high-incidence of co-morbidities and because of their habitus and co-morbidities the surgery is technically demanding for both the surgeon and anaesthetist. Bariatric surgery is associated with cardiorespiratory failure, wound infections, venous thromboembolism, bleeding, and anastomatic leaks.

Why has it become a medico-legal hotspot?

In the UK, bariatric surgery is now considered by the major medical indemnity insurers as one of the highest litigation risks.[iii] But why is it so risky? There may be a number of factors at play.

In medical terms, it is a relatively new approach. Gastric banding for example has been widely offered for only approximately 10 years. Since 1992, bariatric surgical procedures have been listed on the MBS. When surgical techniques are relatively new there can be a period in which techniques are honed and improved – an initial learning curve, if you like.

We are also seeing increasing numbers of bariatric surgical procedures being undertaken. In 1998 to 1999 there were just 535 procedures performed. In stark contrast, in 2007 to 2008 there were 17000 bariatric surgeries undertaken.[iv]

The setting may also be of significance. Most bariatric surgery is performed in private healthcare facilities, by people who have private health insurance and can afford the ‘gap’ costs. Often the procedure involves only a short hospital stay. This requires the patient to be given optimal instructions with regard to post-discharge care and any warning signs of complications. It is not uncommon for a patient to experience symptoms which they wish to discuss with their doctor outside of normal business hours and the availability of the surgeon to advise a patient in such circumstances is of importance.

Linked to this is that when patients do experience complications post surgery, they often present to a different institution to where the surgery was performed (often public hospital). This may deprive the health care professionals in the second hospital of much of the information regarding the surgery conducted, or cause a delay in the retrieval of such information. It may also mean the staff called upon to deal with the complication are unfamiliar with bariatric surgery and the potential complications.

There may also be an element of entrepreneurial medicine in bariatric surgery. At CHL we have heard stories from patients of how the doctor performing the surgery recommended a different procedure when the first procedure turned out not to be covered by the patient’s private health insurance. A lack of veracity in patient screening and selection methods may mean patients are offered procedures that are not really advisable or unlikely to provide the outcome they desire. Other patients have told CHL of how they were advised that the surgery would be successful and carried risks that never eventuated. One report on bariatric surgery trends states: “It is disgraceful that doctors should allow their services to be marketed in the fashion . . . where complex surgery is presented in optimistic “quick fix” terms rather than presenting balanced information about the risks and disadvantages inherent in the procedure”.[v]

Patients often approach bariatric surgery with high expectations. Consent procedures need to be very thorough and robust. Patients need to be aware that surgery is not a panacea and is only part of the solution to weight loss. They also need to be aware that there are risks and complications that are real and not infrequent. A recent article noted the complications occur in 4 out of every 10 procedures.[vi] The fact that patients have often paid large sums of money to undergo the surgery may also increase their expectations and fuel their desire for retribution when the desired outcome is not achieved. The demographics of most patients undergoing bariatric surgery also means that the majority will be well educated and capable of voicing their disgruntlement if not cared for as they see they should be.

Finally, it should not be forgotten that these are complex surgeries and many of the patients have extensive co-morbidities. Therefore, when complications do occur they may be initially difficult to diagnose and then hard to treat. It also means that complications can quickly cascade and outcomes can be disastrous.

What types of claims are arising?

Claims appear to fall into three categories:

1. Informed consent;
2. Negligent performance of the surgery itself; and
3. Inadequate post-operative management / follow-up.[vii]

A study of claims related to bariatric surgery concluded that the main foundations for claims of negligence related to bariatric surgery were leaks and delayed diagnosis of complications.[viii] Surprisingly, claims relating to the consent process were relatively uncommon. This is consistent with the inquiries that we field from patients at CHL and with the claims that ultimately carry through to a successful outcome .