By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: The plaintiff, a female in her mid-30s, had been suffering a lengthy battle with being overweight. She thus sought out and was given the option of receiving gastric bypass surgery (GBS). This surgery rearranges the natural position of the stomach, which leaves the patient feeling full after consuming less food than previously was required. Prior to the surgery, the plaintiff lost 30 pounds in the GBS-preparation program at the hospital where she later received the surgery. At the time of the GBS, the plaintiff’s height was 5 feet 1 inch, and her weight was 189 pounds, with a body mass index (BMI) of 34. A BMI of 34 was high enough to qualify her as obese but not high enough to qualify her as a good candidate for GBS. The plaintiff proceeded with the GBS, and this surgery resulted in numerous complications, particularly fluid buildup and respiratory problems. The plaintiff made multiple trips to the emergency department and had multiple surgeries in the wake of the GBS. The plaintiff eventually received a diagnostic laparoscopy, which revealed severe adhesions on her abdomen, liver, diaphragm, gastric remnant, and gastric pouch. During an attempt to repair the gastric pouch, the patient’s esophagus and diaphragm were punctured. As a result of the GBS and ensuing difficulties, the plaintiff claimed she will suffer chronic pain, food intolerance, incontinence, and fatigue for the rest of her life. The plaintiff argued that the hospital, the hospital staff, and the hospital’s operating doctor deviated from the standard of care by performing the GBS surgery on her when she failed to meet medical guidelines for it. The jury agreed. It found the patient should not have been offered GBS and that she lacked informed consent regarding the procedure. As a result, the jury ruled against the doctor and hospital and ordered the U.S. government to pay $4.25 million to the plaintiff on their behalf. While the doctor and hospital were found liable here for their misconduct, the U.S. government paid the verdict because this facility was a federal hospital where the health center and its employees are considered federal employees and are individually immune from lawsuits.
Background: In 2010, the plaintiff went to the hospital to obtain information on GBS. At that time, the plaintiff weighed 220 pounds and had a BMI above 40. The hospital, as part of its GBS program, recommended that the plaintiff enter into a preliminary program that provides education, support, and behavioral counseling with the GBS. Five months into the program, the plaintiff had lost 30 pounds, and her BMI dropped to 34. Nevertheless, the doctor affiliated with the program and with whom she had been consulting recommended the plaintiff receive the GBS. One month later, when the 189-pound female plaintiff had a BMI of 34, she received the GBS. The resulting and numerous complications began one week later.
It was determined that the GBS caused adhesions on her abdomen, liver, diaphragm, gastric remnant, and gastric pouch. These complications led to fluid buildup and respiratory problems, for which the plaintiff received other surgeries. The GBS incident and subsequent surgeries, one of which punctured her esophagus and diaphragm, have left the plaintiff with what she claimed are lifelong symptoms of chronic pain, food intolerance, incontinence, and fatigue. At one point after the surgery, and due to her alleged injuries, the plaintiff weighed as little as 103 pounds.
The plaintiff sued the operating doctor, the hospital, and hospital staff for her injuries. Specifically, the plaintiff alleged that the doctor failed to adequately warn of known dangers about the procedure and that the hospital fell below the duty of care by offering the surgery to her. The plaintiff pointed to the national standard for candidacy for GBS, which is that a patient has a BMI either (a) over 40 or (b) over 35 and is showing other particular symptoms. This standard supported the argument of the plaintiff, who had a BMI of 34 and no other symptoms, that she should not have been encouraged to undergo the high-risk surgery. Additionally, and in light of her lowered BMI, the doctor should have informed the plaintiff that the risks now outweighed benefits of the procedure.
The defendant argued that at the time the plaintiff initially sought the GBS, she had a BMI of over 40 and was a good candidate for the procedure. As such, the doctor claimed not to be obliged to inform her otherwise before the surgery.
The court, in a 13-day bench trial, agreed with plaintiff. The court said that the hospital breached the applicable standard of care by offering GBS when she didn’t meet the national eligibility criteria and the doctor failed to give the plaintiff sufficient and adequate information for her to give informed consent for the procedure. The court found the plaintiff was entitled to $4.25 million in total damages. The damages broke down as $1.87 million for future medical expenses, $891,000 for loss of current and future wages, and $1.38 million in pain and suffering.
What this means to you: This case illustrates the need to evaluate a patient’s circumstance at every step of the process. The physician began the GBS process with a candidate who met all the prerequisites and who, according to the national standard, likely would have benefitted from the procedure, or at least was situated such that the potential benefits outweighed the risks. However, and with some irony as this was all part of the hospital’s own process, the patient participated a pre-GBS program that led to weight loss. The patient no longer was a good candidate. A prudent doctor working with a patient ahead of surgery should evaluate the conditions of the patient at every step of the process and, if at any time the patient’s symptoms or circumstances change, the physician should re-evaluate the surgery in light of relevant changes. This situation is particularly the case, from a litigator’s perspective, when the patient is undergoing a high-risk surgery that has readily available standards with which the medical community is expected to comply. Here, a re-evaluation of the patient’s need for surgery would have revealed quickly that the patient’s BMI or circumstances no longer comported with the recognized standard and that this patient was no longer a good candidate for the surgery. Failing to make such an evaluation in light of relevant changes can deem a once-useful procedure no longer worth the risk for the patient and lead to liability for the hospital and doctor.
Another related lesson illustrated here is that the physician must adequately inform the patient at all relevant times of the steps in the process. The patient is expected to be informed of what a reasonable person would want to know to make an informed decision regarding risks associated with the proposed procedure, recovery time, recognized alternatives, effect of not undergoing any treatment, and benefits of the recognized alternative treatments. In this case, the plaintiff signed a boilerplate consent form for GBS surgery at the hospital the day of the procedure. However, and in light of the patient’s new BMI, the court found the hospital should have informed the patient that she should cancel or at least delay GBS. Alternatively, the hospital is required to inform the patient of the justification for the surgery at the time of the surgery. Rather, the patient here was informed ahead of time and with no mention that the medical community considers GBS too great of a risk for a patient, such as herself, who is below the suggested BMI level and not showing other symptoms. Bearing all this in mind, a physician should not take for granted or rush through the informed consent process.
It is also necessary for the physician to inform the patient of risks using the patient’s current information and not when treatment first was sought. Providing this type of information will equip the patient with the tools necessary to make the best decision for himself or herself and, thus, can help to shield physicians and hospitals from liability. Finally, of critical importance for all physicians, is documentation of informed consent, including date and time discussed with the patient, and the patient’s understanding of what was discussed, within the body of the patient’s medical record. The medical record must accompany the patient to the surgical area so that staff can confirm the patient’s understanding of the procedure.
Case No. 112CV00527 (Hawaii Dist. Ct., Apr. 21, 2015).
