Risk Management Tools & Resources


Bariatric Surgery Malpractice Allegations: What Claims Data Show, and Ways to Reduce Risk


Obesity is a well-known health concern in the United States. Often referred to as an epidemic, obesity affects about 42 percent of U.S. adults — more than double the number affected just 30 years ago.1 Bariatric surgery is an effective treatment option for many individuals who suffer from obesity, and the number of these procedures has increased over the years.

With the rate of obesity on the rise and bariatric surgeries increasing, it logically follows that malpractice claims associated with these procedures also have increased. Just like other types of surgery, bariatric surgery carries a number of risks. However, the patient population seeking bariatric surgery presents unique challenges because of their physical health and comorbidities (e.g., heart disease, high blood pressure, diabetes, respiratory issues, sleep apnea, etc.), which often make these patients high risk.

A review of MedPro Group closed claims data2 associated with bariatric surgery reveals top areas of risk for surgeons as well as opportunities for improvement. Not surprisingly, allegations related to surgical treatment account for the majority of claims (79 percent). Most of these surgical events occurred in inpatient settings rather than outpatient ambulatory surgery settings, as most major weight-loss procedures (such as Roux-en-Y gastric bypass and laparoscopic sleeve gastrectomy) take place in hospitals.3

Of the bariatric surgical treatment cases, issues related to performance of surgery account for the majority of case volume, followed by inadequate management of the surgical patient. Diagnosis-related case volume is low, but these cases represent the highest percentage of total dollars paid. (Note: Total dollars paid equals indemnity plus expense costs.)

Figure 1. Bariatric Surgery Cases: Major Allegations and Financial Severity

Note: The “other” category includes allegations for which no significant case volume exists.

When looking at bariatric surgery allegations from the perspective of clinical severity, more than half of the claims involved a patient outcome with high clinical severity (i.e., permanent disability or death) and almost half involved an outcome with medium clinical severity (i.e., major or minor temporary issues or permanent minor outcomes).

Figure 2. Bariatric Surgery Cases: Clinical Severity

Further analysis of bariatric surgery cases reveals that numerous risk factors contribute to these claims, with technical/procedural skill and clinical judgment representing top risks in surgical treatment and diagnosis-related allegation categories.

Figure 3. Bariatric Surgery Cases: Top Risk Factors

Note: Totals exceed 100 percent because generally more than one factor is associated with each claim.

The risk factors noted in Figure 3 are broad categories that encompass more specific issues, and the top issues within each risk category are as follows:

  • Technical/procedural skill: Failures to recognize and manage known complications (e.g., bleeding, blood clots, respiratory issues, and infections); poor surgical technique; and procedural inexperience
  • Clinical judgment: Inadequate patient assessments (sometimes resulting in premature postoperative discharge); failures or delays in seeking consultations; narrow diagnostic focus; and delays in ordering diagnostic tests
  • Communication: Suboptimal communication among providers about the condition of patients; inadequate informed consent discussions; and failures to manage patient expectations
  • Administrative: Inadequate staff training and education; insufficient physician coverage; credentialing issues; and failure to follow policies/procedures
  • Documentation: Insufficient and/or inconsistent documentation of clinical findings, adverse outcomes, informed consent discussions, and provision of patient education
  • Behavior-related: Patient nonadherence with treatment regimens (including follow-up appointments and calls); and patient dissatisfaction
  • Clinical systems: Delays in scheduling, performing, and reporting diagnostic testing; and general failures in the system for patient care (including patient follow-up)

To address these risks, hospital leaders, surgeons, and clinical staff can implement strategies to improve patient safety and quality of care. Below are 10 important risk-mitigation strategies for bariatric surgery:

  1. To minimize the risks associated with recognized complications of bariatric surgery, ensure your organization adheres to its credentialing policies, including evaluation of procedural skills and competency with equipment.
  2. Conduct comprehensive informed consent discussions, including a review of the risks and benefits of treatment, potential complications, and alternative options. (A thorough informed consent process can influence patient satisfaction with treatment outcomes and adherence to treatment regimens.)
  3. Provide both written and verbal patient education using lay terms and plain-language materials. Consider the use of other educational options — such as videos, quizzes, support group attendance, etc. — to reinforce important information and patient understanding.
  4. Use a technique such as the teach-back method to ensure that patients fully comprehend their treatment and follow-up care instructions/expectations.
  5. Conduct a thorough preprocedure screening of patients to (a) identify risk factors, (b) confirm that they meet patient selection criteria, and (c) verify selection of the most appropriate type of procedure.
  6. Implement and maintain a consistent and appropriate postprocedure assessment process (e.g., review of vital signs, respiratory status, pain level, medication administration, IV maintenance, diet, etc.).
  7. Carefully consider repeated patient complaints or concerns when making clinical decisions about patient care and additional testing or treatment.
  8. Review processes for receiving, reporting, and acting on test results (including incidental findings) to identify and resolve any potential safety gaps.
  9. Adhere to protocols designed to mitigate the risk of postoperative infections (e.g., protocols associated with good surgical technique, prophylactic antibiotics, appropriate hand hygiene, sterile instruments and dressing, and gowning and gloving).
  10. Provide comprehensive and consistent documentation of each patient encounter in accordance with organizational documentation standards and timeframes. Document thorough information about each patient (e.g., history, physical, medications, conversations about care, etc.), preoperative assessment results, clinical reasoning and rationale for treatment, informed consent discussions and patient education, detailed operative reports, and any patient nonadherence to treatment and follow-up care.

For additional information and helpful resources and tools related to safe surgery, see MedPro’s Risk Resources: Anesthesia & Surgery.


1 Warren, M., Beck, S., & Delgado, D. (2020). The state of obesity 2020: Better policies for a healthier America. Trust for America’s Health. Retrieved from www.tfah.org/report-details/state-of-obesity-2020/; Harvard T.H. Chan School of Public Health. (n.d.). An epidemic of obesity: U.S. obesity trends. The Nutrition Source. Retrieved from www.hsph.harvard.edu/nutritionsource/an-epidemic-of-obesity/

2 MedPro Group bariatric surgery closed claims data, 2011–2020.

3 Duncan, T., Speights, F., Tuggle, K., & Hackner, S. (2016). Laparoscopic bariatric surgery performed on an ambulatory outpatient basis. Surgery for Obesity and Related Diseases, 12(7), S75.

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