Legal Review & Commentary: No nutritional supervision: $75,000 arbitration award

News: Following gastric bypass surgery, a patient was discharged without any nutritional supervision or instruction. Because of the lack of dietary counseling, the patient was unable to keep food in her system long enough for it to be processed, causing severe malnutrition. Her malnutrition lead to the onset of peripheral neuropathy that contributed to her fracturing her foot. The patient claimed the lack of nutritional counseling and supervision fell below the standard of care and was awarded $75,000 through arbitration.

Background: The 47-year-old woman was admitted to the hospital for nonemergency, scheduled gastric bypass surgery. Neither prior to nor following her discharge from the hospital was the patient given any nutritional supervision, even though the procedure involved her stomach and intestines. While recuperating at home, her food intake was severely limited. She routinely threw up whatever food she ate, including her vitamin supplements. The patient was only able to digest a single container of yogurt a day, which did not contain the necessary vitamin B. This almost complete lack of food intake resulted in severe malnutrition and she developed severe peripheral neuropathy in her upper and lower extremities. The peripheral neuropathy contributed to the fracturing the fifth metatarsal in her right foot. Because of these setbacks, she had a six-week convalescent home stay instead of the more common one- to two-week recovery period after discharge from the hospital.

The plaintiff contended the defendant failed to provide proper nutritional supervision following her gastric bypass procedures. The patient claimed that the lack of nutritional services led to nutritional deficiency, severe peripheral neuropathy, and the fractured foot. The defendants countered that all of the patient’s care was within the standard of care and maintained that the neuropathy was not the result of her nutritional deficiency. The defendants also said the patient should have recognized that her food intake level and persistent vomiting required additional medical attention that she failed to seek.

The case went to arbitration, and the patient was awarded $75,000 in damages.

What this means to you: Regardless of the particular diagnosis of any patient, nutritional status and individual nutritional needs should be addressed by the health care team as a part of total patient care. In this case nutritional education is critical to the patient’s recovery because the mechanics of digestion have been permanently altered. Most weight loss procedures combine gastric restriction and malabsorption measures. The gastric restriction severely limits the quantity of food that can be consumed. Additionally, the long-term complications of imposed malabsorption include neuropathy as a result of vitamin B12 deficiency and osteoporosis as a result of calcium deficiency. Given the significant impact the surgery had on the patient’s ability to normally consume and process food, nutritional counseling should have been provided at every step in the care continuum, notes Cheryl A. Whiteman, RN, MSN, CPHRM, a risk manager for Cigna Healthcare of Florida Inc., whose opinions do not necessarily reflect Cigna’s.

"It is difficult to understand how the defendants could claim that the standard of care was maintained if there was no record of nutritional education. Presumably, had such a record existed, the defendants would have employed it in their defense. At the very least this patient should have received education about the procedure and the resulting digestive needs from her surgeon as part of the informed-consent process for the bypass surgery. After being admitted to the hospital, nutritional education should have been a critical part of the discharge plan. The patient and family members should have received education from the dietitian. Furthermore, reinforcement in the form of written information to refer to would normally be expected. Education regarding the signs and symptoms of dehydration, inadequate nutritional intake, and other complications should have been provided. A mechanism for both short-term and long-term follow-up should have been established. Both the initial dietary instruction and follow-up could be achieved through the physician’s office, the hospital’s dietitian, or a clinic. Unfortunately, it seems that each was looking to the others to provide this vital service, and ultimately no one did," she adds.

"Risk management should be involved in determining that appropriate programs are in place for services provided. In this case, the unique procedure of gastric bypass did not include the vital element of sound nutritional education and counseling. It is hoped that by correcting this patient’s malnutrition, her peripheral neuropathy may be reversed or improved and that her metatarsal fracture would heal over time. Should the defendant continue to provide the service of weight-loss surgery, the facility’s risk manager should be involved in determining what services should be provided to future patients to insure that positive outcomes are achieved through education, counseling, and follow-up. Further, the risk manager should not focus only on weight loss surgery. Other programs and services should also be scrutinized to assure that all aspects of total patient care are provided," concludes Whiteman.


  • Jerilyn Sassorossi v. Kaiser Foundation Hospitals, Kaiser Foundation Health Plan Inc. and Southern California Permanente Medical Group, Orange County (CA) Superior Court; Brian K. Brandt of Uplant, CA., is the attorney for the plaintiff.