Bariatric Surgery: Malpractice Claims Data and Risk Mitigation
Obesity is a well-known health concern in the United States. In 2023, obesity rates for adults were at or higher than 35 percent in 23 states; fewer than 5 states had similar rates in 2013.1 Bariatric surgery is an effective treatment option for many individuals who suffer from obesity. Although the introduction of newer weight-loss medications has resulted in less demand for bariatric surgery, these medicines likely won’t replace surgery — particularly for patients who experience medication-related barriers (e.g., side effects, lack of insurance coverage, etc.).2
Bariatric surgery, like other types of surgery, has various risks. Additionally, 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 claims data on bariatric surgery reveals top areas of risk for surgeons as well as opportunities for improvement. Not surprisingly, allegations related to surgical treatment account for most claims (87 percent).3 Most of these surgical events occurred in inpatient settings rather than ambulatory surgery settings, as most major weight-loss procedures take place in hospitals.4
Of the bariatric surgical treatment cases, issues related to improper management of the surgical patient and improper performance of surgery account for more than 90 percent of the case volume. Diagnosis-related case volume is low, but these cases represent almost 20 percent of total dollars paid (indemnity plus expense costs) for all bariatric cases.5
Figure 1. Bariatric Surgery Cases: Major Allegations and Financial Severity
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 injury or death) and more than 45 percent involved an outcome with medium clinical severity (i.e., major or minor temporary injuries 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 clinical judgment and technical skill representing top risks in surgical treatment and diagnosis-related allegation categories.
Figure 3. Bariatric Surgery Cases: Top Contributing Factors
The contributing factors noted in Figure 3 are broad categories that encompass more specific issues, as described below:
- 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
- Technical skill: Failures to recognize and manage known complications (e.g., bleeding, blood clots, respiratory issues, and infections); poor surgical technique; and procedural inexperience
- Communication: Suboptimal communication among providers about the condition of patients; inadequate informed consent discussions; and failures to manage patient expectations
- Behavior-related: Patient nonadherence with treatment regimens (including follow-up appointments and calls); and patient dissatisfaction
- 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
- Clinical systems: Delays in scheduling, performing, and reporting diagnostic testing; and general failures in the system for patient care (including patient follow-up)
- Clinical environment: Issues related to workflow, physical conditions, and “off-hours” conditions (weekends, holidays, and nights)
To address these risks, hospital leaders, surgeons, and clinical staff can implement strategies to improve patient safety and quality of care. Below are important risk-mitigation strategies for bariatric surgery:
- 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.
- Conduct comprehensive informed consent discussions with patients, including reviewing 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.)
- Provide both written and verbal patient education using lay terms and plain-language materials. Consider using other educational options — such as videos, quizzes, support group attendance, etc. — to reinforce important information and patient understanding.
- Use a technique such as the teach-back method to ensure that patients fully comprehend their treatment and follow-up care instructions/expectations.
- Conduct a thorough preoperative 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.
- Implement and maintain a consistent and thorough postoperative assessment process (e.g., review of vital signs, respiratory status, pain level, medication administration, IV maintenance, diet, etc.).
- Carefully consider repeated patient complaints or concerns when making clinical decisions about patient care and additional testing or treatment.
- Review processes for receiving, reporting, and acting on test results (including incidental findings) to identify and resolve any potential safety gaps.
- 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).
- 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.
- Provide patients and caregivers with both written and verbal discharge instructions related to follow-up care. Make sure instructions are written in plain language.
- Follow up with patients after discharge to ensure they are recovering as expected and have all pertinent information about their treatment plans and follow-up appointments.
For additional information and helpful resources and tools related to safe surgery, see MedPro’s Risk Resources: Anesthesia & Surgery.
Endnotes
1 Warren, M., & West, M. (2024). The state of obesity 2024: Better policies for a healthier America. Trust for America’s Health. Retrieved from www.tfah.org/wp-content/uploads/2024/09/SOO-2024-FINAL-R-Sept-12.pdf
2 Molteni, M. (2024, October 25). In the era of GLP-1 drugs, demand for bariatric surgery plunges. StatNews. Retrieved from www.statnews.com/2024/10/25/bariatric-surgery-falls-as-glp-1-demand-rises-wegovy-zepbound/; Mass General Brigham. (2024, October 25). Study finds bariatric surgery declined with rise in GLP-1 drugs to treat obesity. Retrieved from www.massgeneralbrigham.org/en/about/newsroom/press-releases/study-finds-bariatric-surgery-declined-with-rise-in-glp-1-drugs; Columbia University Department of Surgery. (2024). State of the union: Weight loss surgery in 2024. Retrieved from https://columbiasurgery.org/news/state-union-weight-loss-surgery-2020
3 MedPro Group. (2025). Claims data snapshot: Bariatric surgery. Retrieved from www.medpro.com/documents/10502/5086243/Bariatric+Surgery_Claims+Data+Snapshot_2024.pdf
4 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.
5 MedPro Group, Claims data snapshot: Bariatric surgery.
