Surgical errors arising out bariatric surgery can occur before, during or after the procedure. Medical negligence may occur before surgery based on the poor patient selection. Patients who undergo bariatric surgery must be carefully screened to assess their physical and mental fitness to undergo major surgery that results in dramatic lifestyle alteration. As important as the preop history and physical (H&P), is the psychological assessment and counseling needed to select patients who are good candidates.
In selecting patients, is a natural conflict of interest arises between the physician and his/her patient. The physician makes a lot of money by operating on patients, and no money when the patient is told that he/she is not a good candidate for the surgery. Thus, the physician has a financial incentive to err on the side of offering surgery. This is true in other areas of medicine where a procedure is elective or where the indications for surgery must be established. In such instances, such as with cardiac stenting, repeated instances of overuse arise.
Prior to surgery, the bariatric surgeon must also obtain a proper informed consent. This does not mean simply getting the patient’s signature on a pro forma consent form. Rather, the doctor owes a duty to discuss the material risks, potential benefits, options and nature of the procedure with the patient. The informed consent discussion must take place with inflating the benefits or downplaying the risks. This process is particularly important with bariatric surgery because it is elective and carries significant risk.
I personally feel that a surgeon should also disclose doctor-specific information that any patient would want to know, such his/her lack of experience and/or a complication rate that exceeds national averages, if applicable. However, these issues have not been litigated under Ohio law.
During the procedure, surgical errors can occur in any manner of ways. Common examples include failure to perform the technically demanding procedure within accepted standards of care, leaving behind surgical instruments, towels or sponges, or causing infection.
Finally, postop medical malpractice may occur when there is a failure to carefully monitor and support patients who have undergone weight loss surgery. These patients are at risk of bleeding, ulcers, leaks, vitamin deficiencies, bone disease, seizures and other complications. Most of these complications can be resolved through prompt detection and treatment.