Legal Review & Commentary

$5.9 million for failure to diagnose complications after bariatric surgery

By Jonathan D. Rubin, Esq.
Kaufman Borgeest & Ryan
New York, NY

Sandra L. Brown, Esq.
Kaufman Borgeest & Ryan
New York, NY

Carol Gulinello, RN, MS, CPHRM
Vice President, Risk Management & Professional Practice Evaluations
Lutheran Medical Center
Brooklyn, NY

News: A 52-year-old patient underwent bariatric surgery at the defendant hospital. Prior to surgery, the patient’s weight exceeded 500 pounds. Approximately seven months after surgery, the patient presented to the defendant hospital with complaints of fevers and significant weight loss. Although the hospital’s doctor recommended a CT, the test was not performed, as the doctors believed the patient’s weight exceeded the tolerance of the machine that performed the test. A suit was filed against the hospital’s operator, the United States of America. The plaintiffs claimed the doctors failed to properly perform the bariatric surgery, failed to perform proper post-surgical treatment, that the failures constituted malpractice, and that the United States of America was vicariously responsible for the doctors’ actions. The patient died after the suit was filed, and his estate continued the suit on his behalf. Following a bench trial, the estate was awarded $5.9 million.

Background: On April 28, 2003, the 52-year-old patient, a taxi driver, underwent Roux-en-Y gastric bypass surgery at the defendant hospital. The surgery involves stapling of the stomach. During the procedure, the stomach’s functional area is reduced, and the smaller usable stomach restricts the intake of food. The patient’s surgery included removal of the distal region, the area eliminated by the stapling procedure. Following the procedure, the patient was hospitalized until May 14, 2003.

During the four weeks following hospitalization, the patient experienced fevers and significant weight loss. He thereafter presented to the hospital with complaints of the same, and the doctor ordered a CT be performed. Despite the order, the test was not performed, as the patient’s pre-surgical weight exceeded 500 pounds, and the doctors believed the patient’s weight exceeded the tolerance of the machine that performed the CT.

On Nov. 24, 2003, a CT revealed an abscess of the patient’s stomach. The doctors determined that the abscess was allowing the leakage of gastric fluids. The patient claimed that the leak caused an extensive infection, which led to residual effects.

The patient sued the hospital’s operator, the United States of America, alleging the agency’s doctors failed to properly perform the Roux-en-Y surgery. The patient further claimed that the doctors failed to perform proper post-surgical treatment and that the failures constituted malpractice. The patient also claimed that the United States of America was vicariously liable for the doctors’ actions.

The patient died after the suit was filed, and his wife continued the lawsuit on his behalf. During a bench trial, plaintiff’s counsel claimed the doctors should not have removed the distal region of the patient’s stomach. They contended that bariatric surgery might cause complications that necessitate the provision of supplemental nutrition, typically provided via a tube placed in the stomach’s distal region. When nutrition is instead provided by intravenous catheter, the method creates an unnecessary risk of infection. Plaintiff’s counsel claimed that following surgery, the patient received nutrition via an intravenous catheter, which subsequently caused the infection. They further claimed the patient’s death was a result of an abscess of his brain, which was caused by the pre-existing infection.

Plaintiff’s counsel also claimed that the hospital’s staff failed to timely diagnose the infection. They contended the patient’s post-surgical symptoms suggested the possibility of an infection, and a promptly performed CT would have allowed effective treatment of the patient’s infection. Plaintiff also produced witnesses that testified that the defendant hospital’s testing equipment would have accommodated the patient’s weight.

Defense counsel claimed that the surgery was properly performed, that the complications were common risk factors of the surgery, and that the patient did not develop the first abscess until November 2003.

The patient was survived by his wife and three children. The presiding judge found that the defendant hospital’s staff departed from accepted standard of care and that the patient suffered resultant fatal effects. The patient’s estate was awarded $5.9 million.

What this means to you: Weight-loss surgery is suitable for people who are severely overweight and who have not been able to lose weight with diet, exercise, or medication.

In 2003, at the time of this event, bariatric surgery was a well-known and well-published surgical specialty, in which significant weight reduction in morbidly obese individuals was achieved. One of the procedures developed in the field of bariatric surgery is the Roux-en-Y gastric bypass. Here, the surgeon creates a pouch by stapling the upper stomach and attaches it to the small intestine. The small pouch causes reduced intake and less digestion of food. The procedure creates a direct connection from the stomach to the lower segment of the small intestine, thus bypassing portions of the digestive tract that absorb calories and nutrients. This mechanism of digestion might or might not require nutritional and vitamin supplementation; however, because this patient had a prolonged hospitalization, the lack of supplementation might be of some significance in the outcome.

Roux-en-Y gastric bypass has gained popularity given the relatively few complications involved. However, risks common to all surgeries for weight loss include infection of the incision and leakage from the stomach into the abdominal cavity, or where the intestine is connected, as seen in this case.

Of particular concern in this case was the lengthy hospitalization after the initial surgery. Depending on the approach to the surgery, either opened or laparoscopic, recovery time is quick and usually consists of a two-day hospitalization. It is unclear from the summary what caused this prolonged hospitalization. This prolonged hospitalization might have predisposed the patient to an untoward outcome. That being said, once the patient returned to the hospital with signs and symptoms of an infection, a known risk of this procedure, action should have been taken to determine the cause. A CT scan is a reasonable diagnostic test to determine a differential diagnosis.

Because the physicians did not think the patient would fit into the CT scanner, it was not performed. As per the facts of the case, the patient experienced significant weight reduction in the subsequent weeks after the surgery; however, the exact patient weight is not indicated. It would be important to know the patient’s weight to make a determination if the patient could be scanned on the hospital machine. According to the case summary, a witness testified that the hospital’s equipment would be able to accommodate this patient. In the past, most CT scanners could accommodate up to approximately 350 pounds, and bariatric scanners could accommodate 400 pounds or greater. Modern technology allows us to scan patients with a much larger body habitus. If an appropriate scanner was not available, the patient would require a transfer to another facility that could accommodate his needs.

Moreover, it does not appear that physicians considered other diagnostic modalities such as an upper GI series or upper endoscopy, which also could have illustrated a gastric leak. Had this abscess been identified and localized earlier, aggressive measures could have been taken to reduce the risk of additional morbidities associated with this surgical procedure.

In conclusion, if a hospital decides to offer bariatric surgery as a surgical option to its community, then it is incumbent upon the hospital’s administration to ensure there is comprehensive credentialing of the surgeons, proper placement of adequate professional liability insurance with compliance to all requirements, highlighted clinical staff training in caring for patients postoperatively, training in cultural diversity when dealing with “patients of size,” and most importantly the availability of diagnostic equipment and resources to accommodate the needs of patients who undergo bariatric surgery. To do otherwise would the leave institution vulnerable to malpractice and other types of litigation.


CV-05 4449, U.S. District Court, Eastern District (2012).