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Bariatric Surgery Malpractice
Weight loss surgery, also called bariatric surgery, has risen in popularity as a surgical procedure to assist obese persons in losing weight. While it is successful for some, others do not achieve the hoped-for results from this surgery. Additionally, some patients experience injuries or even death following a bariatric procedure. About 200,000 of these procedures are performed in the U.S. annually. Complications can result from any surgery, but there are some medical events that are caused specifically by malpractice during the gastric bypass procedure. If the doctor is at fault for harm caused to the patient, then there may be a claim for medical malpractice.
Gastric bypass surgery, otherwise known as stomach stapling surgery, is an elective and invasive surgical procedure. A patient is considered morbidly obese when their obesity is so severe that it has put the patient at an immediate risk of severe health problems and the patient has been unable to treat their obesity through normal diet and exercise.
As a major surgery, there is a potential for medical complications. Gastric bypass surgery carries about a 7% complication rate for laparoscopic procedures to 14.5% for operations through open incisions, and a 90 day postoperative mortality rate of 0.3%.
When a complication occurs as a result of gastric bypass surgery, the result can be fatal if the patient isn't treated immediately. Patients who have suffered a serious or fatal injury following a gastric bypass surgery may be able to file a medical malpractice suit against the surgeon.
Before knowing if you may need to seek help from a medical malpractice attorney, you should understand some of the pertinent factors behind a potential malpractice lawsuit involving this type of procedure.
How Does Bariatric Surgery Work?
There are many different types of bariatric surgery, all of which have the ultimate goal of causing weight loss. For example, in gastric bypass surgery, the stomach is divided into a small upper pouch, to restrict the volume of food that can be eaten, and a larger lower pouch, which the food bypasses. The small intestine is connected so as to enable drainage of both pouches.
In gastric band surgery, also called lap-band, band or LAGB, an inflatable device is placed around the top portion of the stomach to create a small pouch at its entrance and limit the amount of food that can be consumed at any one time.
And in sleeve gastrectomy, also called gastric sleeve surgery, a large portion of the stomach is simply removed, leaving a much smaller stomach shaped like a narrow tube.
These are just three of the many different types of bariatric surgery.
By reducing the size of where the body can store food intake, the patient may experience decreased appetite and weight loss from the inability to hold as much food within his or her body. This surgery is an elective procedure that may help severely overweight patients achieve weight loss.
Who Are Suitable Candidates?
Not all persons are suitable for these types of procedures. The person should be characterized as obese, which generally means they have a body mass index above 30. The person also should be able to undergo surgery safely. Because of this, bariatric surgery may not be appropriate for persons with prior operations or serious health concerns.
What is the Goal of Bariatric Surgery?
If successful, bariatric surgery may help a person achieve weight loss, and sometimes this weight loss is substantial. It is essential that the patient follow the doctor's recommendations following surgery and that he or she sticks to a healthy routine. If harm or injury was caused during the surgery or if there is a complication that fails to be properly diagnosed by a doctor following the surgery, then the patient may suffer more harm due to the procedure. When such harm is due to the doctor not following the standard of care that he or she owes to a patient, then there may be a malpractice claim for the compensation of the resulting harm and injuries due to the doctor's negligence.
Not every gastric bypass surgery that fails to lead to significant weight loss or optimal recovery periods means there was malpractice on the part of any doctor. To understand if a gastric bypass malpractice attorney may be able to help in recouping your losses, you should first understand some of the common types of gastric bypass surgery malpractice claims and what the complications generally associated with this procedure include.
What Are Some Common Types of Bariatric Surgery Malpractice?
Complications can result from bariatric surgery. Some occur due to a patient not being a suitable candidate for this procedure. Others may occur because of the patient not following instructions provided by his or her doctor during the recovery period. Additionally, some bariatric surgeries result in harm or death that is due to the doctor failing to uphold the duty of care to the patient. If the doctor was negligent and this negligence resulted in injury to a gastric bypass patient, then there may be a malpractice case.
Common types of bariatric surgery malpractice claims include:
- Some type of leakage or complications from a doctor not properly advising the patient on how to address it following a patient's complaints
- Heart issues
- Bowel blockages
- Severe pain
- Harm or injury that is more severe or the type not otherwise associated with this type of procedure
- Death
The doctors that recommended the surgery, performed the surgery, and treated the patient following the surgery may all be held liable for their failure to uphold their duty of care to the patient, which could have caused the patient to suffer harm.
When Malpractice May Occur in a Bariatric Surgery
As with all medical malpractice cases, the fact that the gastric bypass surgery went wrong or had a poor result does not, by itself, create a cause of action to sue for medical malpractice. In order to have a valid cause of action, the patient must be able to prove that the doctor acted negligently by doing or failing to do something that a reasonable doctor would have done before the surgery, during the surgery, or post-operation.
A doctor has a legal obligation to act with a certain degree of care when performing potentially dangerous activities, such as a gastric bypass surgery, and a doctor breaches that duty when they fail to uphold the accepted standard of care in their field.
That breach of duty is considered negligence. The patient must then be able to prove that the doctor's negligence was directly responsible for their injury and that they have suffered either economic or non-economic damages to have a valid cause of action.
Even though not every unfavorable bariatric situation is the result of malpractice, there are a few common types to understand. These will not always mean that there was malpractice, but they are a good starting point for those that are concerned that they may have experienced a case of bariatric malpractice.
Leakage
When a patient experiences leakage following a bariatric procedure, they should first contact their doctor. This step will help protect against further harm that may occur from a resulting infection.
If you or someone you know has undergone bariatric surgery and is now experiencing leakage, keep in mind that this should not occur after bariatric surgery. If your bariatric surgery doctor performed a severe error that resulted in the leakage, then there may be a malpractice claim.
Patient Being a Poor Candidate for Bariatric Surgery
Another common type of gastric malpractice surgery claim may involve the patient's pre-existing health and a failure on the part of the doctor to take that information into account when recommending the procedure. Specifically, persons with a history of heart or lung disease, a family history of certain medical conditions, or other risk factors that make them more likely to have heart or lung issues may not be suitable candidates for gastric bypass surgery.
Some other common malpractice claims in this area involve situations where a doctor recommends that a patient receive this procedure without informing them of the risks. If the patient later has health problems because of the advice of their doctor to get the procedure despite pre-existing risk factors for complications, then the harm caused may be due to malpractice.
Post-Surgery Complications and Doctor's Instructions
While some complications following a bariatric surgery will not be due to malpractice, if they are severe or if a patient goes to a doctor for help, but that doctor does not provide appropriate treatment, then there may still be a claim for malpractice. Doctors involved in recovery periods could be the ones that commit the negligence required to bring a malpractice claim if they failed to uphold the standard of care they owed to a patient when that patient raised issues that occurred following the surgery.
This negligence may include prescribing the wrong medication or ignoring the patient's complaints and thus neglecting to treat the post-surgery harm. Regardless of the specific facts, the harm must be severe enough to indicate negligence on the part of the doctor.
Negligence
The key factor in determining whether there is a malpractice claim for bariatric surgery is if a doctor's negligence caused the injuries sustained by that surgery. Other complications may occur due to the nature of the operation and not because of the doctor's negligence.
Proving all of the required elements of a medical malpractice case, is not an easy or cheap matter. Because the parties to the lawsuit, their respective lawyers, and judges are not usually medical experts, the determination on if a doctor failed to act in an accepted medical standard of care as a similar doctor would have done in the situation, the determination is usually made by the expertise of expert witnesses.
These expert witnesses are normally doctors in the field that have performed numerous similar gastric bypass procedures, and are able to help paint the picture on if another doctor's conduct was reasonable in the situation or not.
What Complications Are Associated With Bariatric Procedures?
Bariatric surgery is a major medical procedure. It is not uncommon for patients to experience pain and trouble when returning to their everyday routine; however, some complications may occur with the intestines due to the nature of the surgery.
Complications can occur in any bariatric procedure, regardless of whether there was malpractice or not. It is essential to pay attention to any complications associated with a bariatric procedure that you are experiencing and speak to a medical professional. Then, you may want to contact an attorney.
Leakage and infections are both complications associated with bariatric surgeries. However, if caused by actions taken by the patient, such as not following proper self-care for the area where the surgery was performed or not sticking to the recommended medical post-surgery plan, then that is unlikely to lead to a malpractice claim. Nonetheless, it is crucial for your health that you discuss any of the complications that are associated with a gastric bypass surgery with a doctor if you experience them following this procedure.
Known Other Complications that May Occur with Bariatric Surgery
The bariatric procedure does not always lead to weight loss, or it may not lead to as much as a patient may have hoped. This alone is unlikely to be enough to show a claim of malpractice.
However, in addition to leakage and issues caused by the patient's heart health, other problems may arise post-surgery, which could indicate possible malpractice. Some examples include:
- Gallstones
- Excessive pain
- Difficulty with breathing
- Pulmonary embolisms
- Issues with blood clotting
While none of these situations necessarily indicates that there is a malpractice claim in a gastric bypass surgery situation, they are potential indicators of negligence on the part of the doctor. The negligence may not have occurred from the doctor that performed the surgery.
If a doctor recommended a bariatric procedure to an unsuitable candidate without explaining the risks or if they do not recommend proper treatment after you raise a complaint about a post-surgery concern, then that doctor too may be guilty of malpractice.
Severe or Unusual Complications
If you experienced complications that are more severe or different than those that are typically associated with bariatric surgery, then you may want to contact a medical malpractice attorney.
Since the key factor is showing that post-surgery problems resulted due to some wrongdoing or negligence on the part of a doctor, to bring a successful malpractice claim, you need to have a strong understanding of the legal requirements for showing negligence.
This area is where a medical malpractice attorney may be able to assist you. An attorney may also assist in explaining and obtaining the types of compensation to which you may be entitled.
What Compensation Can Be Recovered in Bariatric Malpractice Lawsuits?
If there are problems following a gastric/bariatric malpractice surgery that are the result of a doctor failing to perform the duty of care they owe to a patient, then that patient, and possibly relatives, may be entitled to a monetary award of compensation.
The compensation awarded in these types of cases may include reimbursement for medical expenses, pain and suffering, loss of enjoyment of life, inability to carry on daily activities, and emotional harm. For loved ones of the patients, if the surgery resulted in death, they may have a claim for reimbursement of related costs and compensation due to loss of someone otherwise relied upon for life expenses.
For you to receive compensation for bariatric malpractice, you must show that a doctor performed negligence that breached the duty of care owed to you. A medical malpractice attorney may be able to help.
Do I Need a Lawyer for Bariatric Malpractice Lawsuits?
If you have suffered injuries because of a bariatric procedure, then you may be entitled to legal remedies. These may be substantial and can help you with the expenses and pain that resulted from the malpractice.
It is crucial to understand how to file a complaint and argue a strong case to get the most out of a gastric bypass malpractice claim. Many people do not understand the applicable laws in this area, or they may not have the time or resources to learn the elements that must be shown to establish a case or to argue for specific remedies.
This is where a lawyer familiar with bariatric malpractice law can help. An attorney will be able to navigate you through the process to prove a claim for malpractice relating to bariatric surgery. An attorney may also argue on your behalf for relief through the form of an award of legal damages to which you may be entitled.
If you have questions about whether you have a bariatric malpractice claim or how to proceed, you should consider contacting a lawyer. Since there are time limits in filing these claims, it is best to contact an attorney soon so that you have the strongest chance of receiving the compensation to which you may be entitled.
Contact An Attorney Now About Your Bariatric Malpractice Claim
Do not lose out on your potential claim by putting off seeking an attorney's assistance. You may have a right to recover the damage caused by a gastric bypass medical procedure that was malpractice.
