Rising number of obese patients pose special liability risks

You can't use excuse that extra large patients are a rarity

(Editor's note: This is part one of a two-part series on the liability risks associated with treating morbidly obese patients. This month, Healthcare Risk Management explores the obligations to prepare for these patients. Next month's issue will detail how one insurer has provided specific guidelines to mitigate the risk.)

The rise in bariatric surgery and the trend toward Americans getting ever larger is creating a new liability threat that risk managers must address proactively, according to warnings from several attorneys and health care leaders. These extra large patients can be difficult to manage without significant changes to equipment, staffing, and policies within your institution, and failure to make those accommodations can leave you on the wrong end of a lawsuit.

Extra large patients are showing up more often in emergency departments, surgical units, and practically every other area of a health care operation, reports Stuart Hochran, JD, MD, a practicing physician and an attorney with Garfunkel Wild in Great Neck, NY. If your organization participates in any bariatric surgery, the number of these patients and your obligation to accommodate them will rise accordingly.

"About 20% of all patients are now morbidly obese, and the majority of them are looking at the possibility of bariatric surgery," he says. "More hospitals are looking at bariatric surgery as a profit center, and smaller facilities are getting involved with that type of care. There's no question that the volume is increasing, the obligations are increasing, and the risk is increasing."

With the trend toward more bariatric surgery being done as outpatient procedures, the risk of these post-op patients showing up in your emergency department continues to grow. But bariatric surgery is not the only way you will see these patients in your facility. Hochran notes that any health care provider is likely to see morbidly obese patients on a regular basis, more often than would have been common in past decades.

Hochran recalls the years in which he worked as a physician with the New York Giants football team and had to have extra large blood pressure cuffs, stronger tables, and all types of supersized medical equipment for players who were two or three times the size of an average person.

"Now we have to have that same equipment in a community hospital," he says. "These patients are in a world that doesn't fit them in many cases, so they can come to your hospital and you will find that the blood pressure cuffs don't fit, the gowns are nowhere near big enough to cover them, and the table falls over when you put them on it."

Even the most mundane items, such as wheelchairs, may not be adequate for extra large patients, warns Carson Liu, MD, the medical director for the Surgical Weight Control Center at Olympia Medical Center in Los Angeles. Liu has performed more than 900 bariatric surgeries. Another important consideration is imaging equipment, such as scanners that may not be wide enough to accommodate the patient's girth or strong enough to support the weight. Many scanner tables can hold only 350 pounds, he says.

"A very important concern is the risk to staff from having to lift these patients and move them around. Moving them on and off tables for surgery or moving their limbs when the patient is asleep can be much harder than with the typical patient," he says. "There is special equipment that you can use to help move overweight patients, but this is an area in which you risk staff injuries and workers' compensation costs if you don't address this."

Injuries to the patient or staff are likely if a hospital does not prepare for extra large patients, Liu warns. The expense is justified for most providers because sooner or later a morbidly obese patient will need care. If you are not prepared, you risk regulatory violations by sending the patient away or other liability if someone is injured. Some of the equipment is expensive, but "you have to weigh the cost of making these changes against the cost of a lawsuit or a workers' comp case," Liu says.

Less than standard of care?

Hospitals are obligated to provide the standard of care to all patients, and that includes obese patients, Hochran says. He recently represented an obese patient who was injured when a table collapsed under her weight, and the hospital settled the claim for an undisclosed amount.

Obese patients who receive less than the standard of care and are injured as a result may have a good case in court, says Roy W. Breitenbach, JD, a partner with Garfunkel Wild. With regard to malpractice risk, health care providers are found liable in malpractice cases if it is established that their treatment of a patient deviates from the ordinary standard of care in the medical profession, he says.

"To the extent that a medical malpractice plaintiff who is morbidly obese can show that the medical care he/she received fell below the ordinary standard of care — because of unavailability of specialized equipment — and the provider is the cause of this deviation, there may be medical malpractice liability," he explains. "Essentially, the plaintiff would need to have a qualified medical expert testify that it is the ordinary standard of care to have the equipment at issue in stock and at the ready to treat patients."

Hochran and Breitenbach caution that risk managers should not rely on the excuse that morbidly obese patients are a rarity and therefore you should not be held responsible when you were ill-prepared to accommodate them. That argument won't stand up to the statistics showing the number of obese Americans, Hochran says. These days, they are just too common to think they won't show up in your facility.

"And if you do bariatric surgery or allow physicians to do it at your hospital, you're inviting these patients into your facility; and that means you absolutely must be prepared for them," he says. "Juries will be sensitive to the need for accommodation, and courts are going to demand that you provide them care that is comparable to anyone else's care."

Assess equipment, policies with large patients

So what should a risk manager do to ensure extra large patients are well accommodated? An assessment of equipment, policies, and procedures is in order.

Failure to have adequate equipment on hand is the most likely way you could find yourself facing a lawsuit from an obese patient, Hochran says. Facilities should have equipment that can handle obese patients — everything from extra large blood pressure cuffs and longer needles that penetrate through fat layers, to beds specially made for big patients.

Train staff to accommodate these patients and to be sensitive to their concerns, Hochran says. Staff should understand that obese patients often are embarrassed about their size and their special needs, he says. Staff should be careful not to make any disparaging remarks or complain about having to accommodate the patient's size. Sensitivity training not only helps the patient feel less shame and discomfort while under your care, but it also helps avoid creating disgruntled patients who will react to any bad outcome by calling a lawyer, Hochran adds.

Avoid this 'serious mistake'

However, another major risk involves inadequate informed consent. Hochran says that health care providers can go astray with a well-intended effort to make these patients feel just like anyone else and avoiding the obvious issue of extreme obesity.

"The informed consent process should include a clear discussion of the inherent risks that come along with surgery or treatment on an obese patient, things like delayed wound healing, infections in folds of skin, circulation problems," Hochran explains. "It is a serious mistake if you try so hard to treat these patients like everyone else that you avoid talking about some of the serious health issues involved. They will not heal like a thin person will heal, and their complication rates are not the same."


For more information about liability risks with obese patients, contact:

  • Stuart Hochran, JD, MD, or Roy W. Breitenbach, JD, Garfunkel, Wild & Travis, 111 Great Neck Road, Suite 503, Great Neck, NY 11021. Telephone: (516) 393-2200.
  • Carson Liu, Olympia Medical Center, 5901 W. Olympic Blvd., No. 300, Los Angeles, CA 90036-4671. Telephone: (323) 932-5970.