Obesity malpractice claims up 64%, study shows



Obesity-related lawsuits against health providers are on the rise, according to a claims analysis by national medical liability insurer The Doctors Company. Claims associated with obesity totaled 415 between 2007 and 2012, an increase of 64% in the number of such lawsuits from the period between 1992 and 2002.

The increase "is not at all surprising, as obesity itself has increased a great deal in the population," said Dr. Neil Skolnik, associate director of the family practice residency program at Abington (Pa.) Memorial Hospital. "We’re going to see that reflected in malpractice suits."

Dr. Neil Skolnik

The Doctors Company study analyzed 415 obesity-related claims from 2007 through 2012 and compared them with a previous analysis of claims from 1992 to 2002. The most recent suits involved instances such as a 290-pound patient who had complications following a gastric bypass surgery, a 325-pound patient with hypertension and diabetes who died after a physician did not diagnose myocardial infarction and pneumonia, and a 350-pound patient with nerve damage that resulted from improper positioning on a treatment table. Twenty-five percent of the patients involved in the claims died, according to the study, published on The Doctors Company website in May.

Orthopedists were the top specialty sued for obesity-related claims, followed by family physicians, anesthesiologists, plastic surgeons, general surgeons, and internists.

Family physicians may be sued more often than some other specialties because of their interaction with patients who develop conditions associated with obesity over time, said Paul Nagle, director of physician patient safety for The Doctors Company.

"Family medicine physicians can be at risk due to the latent risk of obesity," he said in an interview. "If a patient’s weight gradually increases, what is a family medicine physician doing to monitor the weight and the potentially resulting medical issues, including diabetes, hypertension, cardiac, vascular, joint, or pulmonary health issues?"

Communicating clearly with obese patients early is essential to avoid obesity-related claims, said Liz Brott, regional vice president, risk resource for ProAssurance, a national medical liability insurer.

"It’s extremely important as far as communicating with them about what to expect from procedures or treatment," she said in an interview. "You don’t want to leave this to your staff to communicate. [It should be] the physician sitting down, one-on-one, whether it’s the primary care physician or the surgeon. There should be appropriate communication by the physician."

Ms. Brott said ProAssurance has handled obesity-related claims continually, but their numbers do not show a dramatic rise. In her experience, obesity claims against surgeons related to bariatric procedures are most common, she said.

Along with informed consent, physicians also may want to consider an informed refusal approach for noncompliant patients, Mr. Nagle said. This refers to informing patients about how obesity impacts their overall health and/or a specific health issue and having patients sign a document stating that they were advised but chose not to follow recommendations.

"This may reduce any claims that you did not address and warn of obesity’s impact," he said.

Physicians should also document all activity related to weight interventions and conversations with patients about weight education and guidance, he added

The analysis is a reminder that obesity is a serious disease that has its own direct complications, as well as acting as a catalyst for related conditions, said Dr. Skolnik, who is also a professor of family medicine at Temple University in Philadelphia.

"The overriding theme here is obesity is an area to which patients are paying increasing attention and to which lawyers also must be paying increasing attention," he said. "It’s an area that should be addressed directly and with sensitivity to the often emotional issues that go along with addressing weight issues."

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