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Medical Malpractice in Bariatric Surgery: How to Mitigate Litigation from Eating Into your Practice?
Asad J. Choudhry*1, Nadeem N. Haddad1, Matthew Martin3, Cornelius A. Thiels1, Elizabeth B. Habermann2, Donald H. Jenkins1, Michael J. Ferrara1, Martin D. Zielinski1
1Department of Surgery, Mayo Clinic, Rochester, MN; 2Robert D. and Patricia E. Kern Center for the Science of Health Care Delivery, Surgical Outcomes Program, Mayo Clinic, Rochester, MN; 3Department of Surgery, Madigan Army Medical Center, Tacoma, WA

Given current trends in obesity, it has been estimated more than half of the US adult population will be obese by 2030 resulting in greater demand for bariatric procedures. Our objective was to analyze malpractice litigation related to bariatric surgery in an effort to lessen future litigation for practicing bariatric surgeons.
A retrospective review was conducted of all records published in Westlaw Next (Thomson Reuters, New York, NY); a comprehensive law database containing publically available legal records from all jurisdictions within the United States. The search terms used included medical malpractice and one of the following: bariatric surgery, gastric bypass, gastric banding, biliopancreatic diversion, duodenal switch and sleeve gastrectomy. Only cases with completed jury verdicts and settlement outcomes were reviewed. Exclusion criteria included all cases where the bariatric procedure was not the primary reason for litigation. Dates of cases ranged from 1985 to 2015. All cases were reviewed for pertinent information including: patient demographics, procedural characteristics, alleged reason(s) for malpractice claim and outcome(s) of trial. Data is presented as means ± standard deviation with a p value of <0.05 considered statistically significant.
The search criteria yielded 293 case briefs of which 150 met inclusion criteria. Thirty-two percent (n=49) of cases involved male patients and the mean age was 44 ± 11 years. The two most common procedures were Roux-en-y gastrojejunostomy (77%, n=116) followed by vertical banded gastroplasty (16%, n=24). California had the highest absolute number of malpractice cases at 42 (28%), (Figure 1). The most common allegation was failure to appropriately manage post-operative bowel leak in a timely manner (n=31, 22% of cases). In 80 cases (53%) death of the patient was cited as a factor for pursing litigation by the decedent’s family. Overall, 93 cases (62%) were decided in favor of the defendant (physician); p=0.62. Median jury verdict sum when settled prior to trial or in favor of the plaintiff was ,196,742 (range ,964 to ,368,457).
Patient death, delay and/or failure to manage complications played a significant role in determining outcomes of malpractice litigation. Although a majority of cases were decided in favor of the defendant, jury verdicts and settlements in favor of the plaintiff were extremely costly. The risk of future litigation may lessen if proper measures are enacted to prevent such outcomes from occurring.

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