How patient obesity can impact malpractice litigation

Brianne Goodwin, JD, RNHappy 2017. With the New Year being associated with resolutions of improved health and fitness and reducing the number on the scale, it seems a particularly appropriate time to share some information about how obesity impacts urologic care and treatment, and the impact of obesity on malpractice litigation.

Also see: Top 5 malpractice articles of 2016

Obesity increases the risk of malpractice litigation in all types of medicine, and obesity related claims have jumped by more than 60% in the last 10 years, according to a July 10, 2014 article in Clinical Endocrinology News. Currently, about 30% of the adult population in the United States is obese; by 2018 that number is expected to increase to 40% (Rev Urol 2015; 17:165-70).

Obesity linked to urologic conditions

With regard to urology, it is documented that obesity is associated with an increased risk for prostate cancer, renal cancer, nephrolithiasis, urinary tract infection, erectile dysfunction, hypogonadism, infertility, and incontinence (Rev Urol 2015; 17:165-70). Aside from physiologic implications, performing surgery on an obese patient is technically more difficult and poses a higher risk for postoperative complications (Rev Urol 2015; 17:165-70). The association between obesity and several urologic conditions may elucidate why malpractice claims might be more numerous with obese patients.

It should come as no surprise to any clinician that patient obesity can require different management of care. This can range from use of a larger blood pressure cuff to stand-up diagnostic imaging or a different surgical incision or approach. Take the following lawsuit that went to a jury trial in Massachusetts:

The plaintiff was an obese woman with a history of kidney stone disease. She alleged that the defendant urologist subjected her to unnecessary surgery that was improper based upon insufficient diagnostic studies. The plaintiff contended that she experienced post-surgical complications and continued to suffer as a result of the alleged unnecessary surgery.

The evidence indicated that the defendant urologist, prior to electing to proceed with surgery, attempted lithotripsy to break up the kidney stones. According to the defendant, because of the plaintiff’s obese condition, she was unable to withstand the procedure. Believing that the kidney stones had been sufficiently identified on x-ray, the defendant urologist recommended surgery. That recommendation was based solely upon the x-rays and the plaintiff’s medical history. The plaintiff was not exhibiting clinical symptoms of kidney stones, but would not have been expected to have such complaints due to the presence of a ureteral stent.

During the surgery, the defendant was unable to locate any kidney stones. The plaintiff’s expert urologist testified that the defendant deviated from the standard of care in proceeding with surgery without performing more specific diagnostic studies, including a retrograde pyelogram, to confirm the presence of kidney stones. The plaintiff’s expert maintained that what the defendant assumed was a kidney stone on x-ray was actually a calcified lymph node.

The defendant countered that he acted appropriately in electing not to perform a retrograde pyelogram because he had attempted such a procedure upon the plaintiff 1 month earlier and without success, due to the plaintiff’s obese condition. The defendant’s expert urologist testified that the defendant acted properly in electing to perform surgery upon this plaintiff based on her history and what appeared to be a kidney stone on x-ray. The defense expert opined that in view of the fact that the plaintiff was not a candidate for lithotripsy, the defendant acted reasonably under the circumstances in recommending surgery. The jury found for the defendant urologist.

A review of claims demonstrates that patients who have experienced an adverse medical event leading to a medical malpractice claim are frequently noted to be obese, according to The Doctors Company, a physician-owned medical malpractice insurer (bit.ly/Obesitycrisis). The reason for a frequent number of claims by obese patients is not entirely clear, but lends itself to brainstorming some practice pointers to help in avoiding litigation.

Next: Obesity-related documentation critical

Obesity-related documentation critical

A general rule of thumb is that good documentation is helpful to a defense. In the event that a patient’s course of medical or surgical treatment is being dictated by the condition of obesity, it is critical for a provider to document this. If there is any question in litigation that treatment or management did not comport with the standard of care, one or more notes in the chart detailing why a certain test or procedure could not be done due to body habitus, or similar, would be helpful to a malpractice defense.

Also from Brianne Goodwin, JD, RN: How spoliation of evidence can cost you in court

If surgical complications are expected to be greater for the obese patient than for a patient with a BMI of less than 25, a preoperative note educating the patient as to the increased risks related to obesity would be similarly helpful.

Of course, at the root of documenting these conversations is actually having the conversation. A number of factors inhibit providers from discussing a patient’s obesity frankly and openly with him or her, according to The Doctors Company. Weight bias and discrimination are present in society, and the stigma associated with obesity can lead to decreased health care utilization (Am J Public Health 2010; 100:1019-28). Still, it is in a provider’s best interest to address obesity as a health condition the same way one might address other chronic conditions such as diabetes or hypertension. It is equally as important that these sensitive conversations make their way into the medical chart to best protect yourself should a suit be filed.

Addendum: Obesity is not only timely and relevant at this stage of the calendar year, but also in the news and academic domain. A New York Timesarticle from Dec. 12, 2016 discusses current obesity research and how more than 25 genes have been identified that may contribute to at least 59 types of obesity. It is an interesting read with anecdotal narratives that has provoked a long thread of commentary and provides some additional “food” for thought.

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