The Impact of Obesity

The patient was a morbidly obese young woman suffering from complications of an ovarian cyst. “Morbid obesity” is defined as being 100 pounds or more over ideal body weight, or having a Body Mass Index (BMI) of 40 or higher. At the time Dr. Thompson first met her, the patient was 28 years old, 5'8″ tall, and weighed 410 lbs. After a thorough work-up, Dr. Thompson presented treatment options, which included laparoscopic surgery with its known risk of injury to adjacent organs. The patient, then grateful for Dr. Thompson's assistance, elected to undergo the laparoscopic procedure.

Dr. Thompson had treated numerous obese and morbidly obese patients during her career. As with any surgical procedure, she had carefully explained the risks of injury to bladder, bowels, surrounding organs and blood vessels. Further complicating this procedure were increased risks due to the patient's body habitus, requiring passage of surgical instruments through additional layers of tissue, use of longer instruments and complications of anesthesia (a difficult intubation). Notwithstanding these difficulties, Dr. Thompson and her assistant, a third-year resident, successfully performed the laparoscopy and drained the ovarian cyst. During her deposition, Dr. Thompson recalled in detail how she carefully inspected the operative field before withdrawing instruments and closing, with no apparent complications.

Unfortunately, 1 week later, the patient returned to the hospital and required additional surgery to repair two small perforations of the bowel. The patient eventually filed a malpractice claim against Dr. Thompson, her assistant and the hospital, based upon Dr. Thompson's alleged failure to identify and repair the bowel injury. After a vigorously contested trial, a jury verdict was returned against Dr. Thompson and the hospital in excess of $2 million.

As a result of her unfortunate experience in this case, Dr. Thompson has restricted her practice and will no longer perform surgery on obese patients. While her voluntary decision to limit her practice will help her avoid future litigation, the epidemic rate of obesity in the United States suggests that similar issues will continue to be litigated in professional malpractice litigation, presenting a significant challenge for defense counsel at trial.

Overweight and Obesity: Definition of the Problem

The National Health and Nutrition Examination Survey conducted in 1999-2000 estimated that 64% of adults in this country are either overweight or obese, defined as having a BMI of 25 or more. “Overweight” refers to increased body weight in relation to height, as compared with a standard of acceptable or desirable weight. National Research Council: Diet and Health: Implications for Reducing Chronic Disease Risk. Washington, DC: National Academy Press, 1989, p. 114 (NRC). “Obesity” is defined as an excessively high amount of body fat or adipose tissue in relation to lean body mass. The most common measure of overweight and obesity is the BMI, which expresses the relationship or ratio of weight to height. BMI is a mathematical formula in which a person's body weight in kilograms is divided by the square of his or her height in meters, and is generally considered more highly correlated with body fat than any other indicator of height and weight (NRC p. 563). Individuals with a BMI of 25 to 29.9 are considered overweight, while individuals with a BMI of 30 or more are considered obese.

Health problems caused by overweight and obesity precipitated a “Call to Action” by the United States Surgeon General in December 2001. “The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity,” U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General (Rockville, MD, 2001). Then Surgeon General David Satcher commented: “Overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.” The “Call to Action” report found that approximately 300,000 U.S. deaths per year were associated with obesity and overweight, as compared with more than 400,000 deaths per year associated with cigarette smoking. The total direct and indirect economic costs attributed to overweight and obesity amounted to $117 billion in the year 2000. While the prevalence of overweight and obesity increased for both genders and across all races, ethnic and age groups, the Surgeon General's report found that certain disparities existed. In women, overweight and obesity were higher among members of racial and ethnic minority populations than in non-Hispanic white women. In men, Mexican-Americans have a higher prevalence of overweight and obesity than non-Hispanic men, while non-Hispanic white men have a greater prevalence of the problem than non-Hispanic black men.

Equally troubling, these trends were associated with dramatic increases in conditions such as asthma and Type 2 diabetes among children. Surgeon General Satcher expressed concern that the failure to address overweight and obesity “could wipe out some of the gains we've made in areas such as heart disease, several forms of cancer, and other chronic health problems.”

The list of potentially related conditions for which overweight and obese individuals are at increased risk concerns not only health care providers, but demands equal attention from their counsel in medical malpractice litigation. For example, the National Institutes of Health have identified the following physical ailments as among those related to overweight and obese individuals:

• High blood pressure, hypertension;
• High blood cholesterol, dyslipidemia;
• Type 2 (non-insulin dependent) diabetes;
• Insulin resistance, glucose intolerance;
• Coronary heart disease;
• Angina pectoris;
• Congestive heart failure;
• Stroke;
• Gallstones;
• Cholescystitis and cholelithiasis;
• Gout;
• Osteoarthritis;
• Obstructive sleep apnea and respiratory problems;
• Some types of cancer, such as endometrial, breast, prostate and colon;
• Complications of pregnancy, such as gestational diabetes, gestational hypertension and pre-eclampsia, as well as complications in operative delivery (ie, cesarean sections);
• Poor female reproductive health, such as menstrual irregularities, infertility and irregular ovulation (which claims were presented in Dr. Thompson's litigation);
• Bladder control problems, such as stress incontinence; and
• Psychological disorders (such as depression, eating disorders, distorted body image and low self-esteem).

National Institutes of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults, Bethesda, MD: Department of Health and Human Services, National Institutes of Health, National Heart, Lung, and Blood Institute, 1998 (pp. 12-20).

Personal Responsibility

The concept of personal responsibility is relevant to healthcare choices and traditional precepts of law as well. Surgeon General Satcher touched upon this factor in the Forward to his Report: “Overweight and obesity may not be infectious diseases, but they have reached epidemic proportions in the United States. Overweight and obesity are increasing in both men and women and among all population groups. In 1999, an estimated 61% of U.S. adults were overweight or obese, and 13% of children and adolescents were overweight. Today there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. We already are seeing the tragic results of these trends. Approximately 300,000 deaths a year in this country are currently associated with overweight and obesity.”

To what extent do individual behavior and the choices a patient makes contribute to overweight and obesity? Obesity and overweight are chronic conditions. A variety of factors play a role in obesity, complicating the manner in which it is addressed both as a health care and legal issue. Behavior and environment play a large role in causing people to be overweight and obese. The Surgeon General found that these were the greatest areas for potential prevention and treatment actions.

In Dr. Thompson's case, it was important for the jury to understand that the patient's size made the medical procedure more difficult, but to do so without appearing to “blame” the plaintiff for her injury. This is a fine line, and the presentation of testimony describing the risks of the procedure, for example, was a challenge for both trial counsel and the physician on the witness stand. No attempt was made during cross-examination of the plaintiff to suggest that she did anything “wrong,” either in causation of the original, underlying condition or the problems she experienced post-operatively. Different considerations may apply, however, where surgery is directly related to the patient's obesity.

The Special Case of Bariatric Surgery

Surgical treatment for weight loss dates from the 1950s. The most significant treatment in terms of invasiveness, success and risk involves bariatric surgery. Bariatric surgical procedures are gastrointestinal operations that seal off most of the stomach to reduce the amount of food the individual can eat, and rearrange the small intestine to reduce the calories the body can absorb. Smith, Gassman, Rainey: The Battle of the Bulge: Trends in Bariatric Surgery” (www.sdma.com/sedgwick. updwww.sdma.com/sedgwick. updates). Bariatric surgery is now a recognized sub-interest in the field of General Surgery, and is endorsed by the National Institutes of Health Consensus Conference.

Consideration of the individual techniques of bariatric surgery is beyond the scope of this article. Overall, however, it appears that the number of bariatric surgeries performed each year to address obesity and related ailments is increasing on an annual basis. In 2001, approximately 40,000 Americans turned to weight loss surgery. Two years later, it was estimated that over 100,000 would elect this surgery.

The risks are clear: The International Bariatric Surgery Registry pegged the 30-day mortality rate at one in 300. However, the real rate may be much higher, almost one in 50, close to the death rate from coronary surgery. The increased fatality rate finding emerges from a survey conducted by David Blum, a University of Washington gastrointestinal surgeon, who surveyed a representative sample of several thousand gastric bypass patients. The survey attributes the high complication rate to inexperienced surgeons rushing to offer a lucrative but technically demanding “plumbing job,” in part. Id., “The Battle of the Bulge,” at 7-8. As the number of bariatric surgical procedures increases, with significant risks in the post-operative period, we may expect that the number of medical malpractice claims will increase as well. While evidence of the patient's morbid obesity was somewhat collateral to the issue in Dr. Thompson's case, such evidence would be relevant, if not dispositive, in cases involving bariatric surgery, where obesity is the controlling factor in the patient's course of therapy.

Conclusion

Given the prevalence of overweight and obesity in our society, the manner in which evidence related to those conditions may impact upon a final disposition is limited only by the imagination of counsel. For example, one case involving a patient's specific health care choices (including sedentary lifestyle, obesity and failure to follow a physician's instructions) has been reported in the context of post-operative complications after a hysterectomy. See Logacz v. Brea Community Hospital, 71 CA.4th 1149 (CA.Super.Ct. 1999). Still another commentator has analyzed the impact of diabetes, a known risk of overweight and obesity, in the medical malpractice context. See Malone, Patrick A: “Medical Malpractice and the Failure to Manage Diabetes” (www.steinmitchell.com) (suggesting that one potential defense in a diabetes malpractice case “is the patient's own negligence to manage their diabetes.”). Evidence of overweight and obesity may support a defense of contributory/comparative negligence in many contexts, provided appropriate expert testimony establishes the necessary foundation.

The emergence of an obese class of citizens in the United States should be expected to have a significant impact on the adjudication of professional malpractice cases. Authority such as the Centers for Disease Control and the Surgeon General's “Call to Action” document the extent of this emerging phenomenon. The challenge for defense lawyers will be to distinguish those cases, such as Dr. Thompson's, in which obesity is a factor relevant to the jury's knowledge, but not necessarily its verdict, from the more troubling cases, where individual choices and lifestyle decisions lead a patient into significant health care problems through no fault of a treating physician.

Medical malpractice cases often reflect a series of events unique to one patient, independent of broader health care issues or a larger patient population. On occasion, however, the medico-legal issues of a single case may reflect an overarching social phenomenon, requiring counsel and the courts to address both factors if a just result is to be achieved.

Several years ago, I represented a local community hospital that had been sued for an alleged surgical misadventure involving another defendant, Dr. “Virginia Thompson,” the attending surgeon on the case. Dr. Thompson was a respected, caring practitioner, as comfortable counseling patients in her office as she was instructing medical students at several local hospitals over a career that began more than 20 years before our first meeting. As a Board-certified specialist in Obstetrics and Gynecology, Dr. Thompson was also no stranger to litigation, and we first met at her deposition.

The Case

The patient was a morbidly obese young woman suffering from complications of an ovarian cyst. “Morbid obesity” is defined as being 100 pounds or more over ideal body weight, or having a Body Mass Index (BMI) of 40 or higher. At the time Dr. Thompson first met her, the patient was 28 years old, 5'8″ tall, and weighed 410 lbs. After a thorough work-up, Dr. Thompson presented treatment options, which included laparoscopic surgery with its known risk of injury to adjacent organs. The patient, then grateful for Dr. Thompson's assistance, elected to undergo the laparoscopic procedure.

Dr. Thompson had treated numerous obese and morbidly obese patients during her career. As with any surgical procedure, she had carefully explained the risks of injury to bladder, bowels, surrounding organs and blood vessels. Further complicating this procedure were increased risks due to the patient's body habitus, requiring passage of surgical instruments through additional layers of tissue, use of longer instruments and complications of anesthesia (a difficult intubation). Notwithstanding these difficulties, Dr. Thompson and her assistant, a third-year resident, successfully performed the laparoscopy and drained the ovarian cyst. During her deposition, Dr. Thompson recalled in detail how she carefully inspected the operative field before withdrawing instruments and closing, with no apparent complications.

Unfortunately, 1 week later, the patient returned to the hospital and required additional surgery to repair two small perforations of the bowel. The patient eventually filed a malpractice claim against Dr. Thompson, her assistant and the hospital, based upon Dr. Thompson's alleged failure to identify and repair the bowel injury. After a vigorously contested trial, a jury verdict was returned against Dr. Thompson and the hospital in excess of $2 million.

As a result of her unfortunate experience in this case, Dr. Thompson has restricted her practice and will no longer perform surgery on obese patients. While her voluntary decision to limit her practice will help her avoid future litigation, the epidemic rate of obesity in the United States suggests that similar issues will continue to be litigated in professional malpractice litigation, presenting a significant challenge for defense counsel at trial.

Overweight and Obesity: Definition of the Problem

The National Health and Nutrition Examination Survey conducted in 1999-2000 estimated that 64% of adults in this country are either overweight or obese, defined as having a BMI of 25 or more. “Overweight” refers to increased body weight in relation to height, as compared with a standard of acceptable or desirable weight. National Research Council: Diet and Health: Implications for Reducing Chronic Disease Risk. Washington, DC: National Academy Press, 1989, p. 114 (NRC). “Obesity” is defined as an excessively high amount of body fat or adipose tissue in relation to lean body mass. The most common measure of overweight and obesity is the BMI, which expresses the relationship or ratio of weight to height. BMI is a mathematical formula in which a person's body weight in kilograms is divided by the square of his or her height in meters, and is generally considered more highly correlated with body fat than any other indicator of height and weight (NRC p. 563). Individuals with a BMI of 25 to 29.9 are considered overweight, while individuals with a BMI of 30 or more are considered obese.

Health problems caused by overweight and obesity precipitated a “Call to Action” by the United States Surgeon General in December 2001. “The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity,” U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General (Rockville, MD, 2001). Then Surgeon General David Satcher commented: “Overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.” The “Call to Action” report found that approximately 300,000 U.S. deaths per year were associated with obesity and overweight, as compared with more than 400,000 deaths per year associated with cigarette smoking. The total direct and indirect economic costs attributed to overweight and obesity amounted to $117 billion in the year 2000. While the prevalence of overweight and obesity increased for both genders and across all races, ethnic and age groups, the Surgeon General's report found that certain disparities existed. In women, overweight and obesity were higher among members of racial and ethnic minority populations than in non-Hispanic white women. In men, Mexican-Americans have a higher prevalence of overweight and obesity than non-Hispanic men, while non-Hispanic white men have a greater prevalence of the problem than non-Hispanic black men.

Equally troubling, these trends were associated with dramatic increases in conditions such as asthma and Type 2 diabetes among children. Surgeon General Satcher expressed concern that the failure to address overweight and obesity “could wipe out some of the gains we've made in areas such as heart disease, several forms of cancer, and other chronic health problems.”

The list of potentially related conditions for which overweight and obese individuals are at increased risk concerns not only health care providers, but demands equal attention from their counsel in medical malpractice litigation. For example, the National Institutes of Health have identified the following physical ailments as among those related to overweight and obese individuals:

• High blood pressure, hypertension;
• High blood cholesterol, dyslipidemia;
• Type 2 (non-insulin dependent) diabetes;
• Insulin resistance, glucose intolerance;
• Coronary heart disease;
• Angina pectoris;
• Congestive heart failure;
• Stroke;
• Gallstones;
• Cholescystitis and cholelithiasis;
• Gout;
• Osteoarthritis;
• Obstructive sleep apnea and respiratory problems;
• Some types of cancer, such as endometrial, breast, prostate and colon;
• Complications of pregnancy, such as gestational diabetes, gestational hypertension and pre-eclampsia, as well as complications in operative delivery (ie, cesarean sections);
• Poor female reproductive health, such as menstrual irregularities, infertility and irregular ovulation (which claims were presented in Dr. Thompson's litigation);
• Bladder control problems, such as stress incontinence; and
• Psychological disorders (such as depression, eating disorders, distorted body image and low self-esteem).

National Institutes of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults, Bethesda, MD: Department of Health and Human Services, National Institutes of Health, National Heart, Lung, and Blood Institute, 1998 (pp. 12-20).

Personal Responsibility

The concept of personal responsibility is relevant to healthcare choices and traditional precepts of law as well. Surgeon General Satcher touched upon this factor in the Forward to his Report: “Overweight and obesity may not be infectious diseases, but they have reached epidemic proportions in the United States. Overweight and obesity are increasing in both men and women and among all population groups. In 1999, an estimated 61% of U.S. adults were overweight or obese, and 13% of children and adolescents were overweight. Today there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. We already are seeing the tragic results of these trends. Approximately 300,000 deaths a year in this country are currently associated with overweight and obesity.”

To what extent do individual behavior and the choices a patient makes contribute to overweight and obesity? Obesity and overweight are chronic conditions. A variety of factors play a role in obesity, complicating the manner in which it is addressed both as a health care and legal issue. Behavior and environment play a large role in causing people to be overweight and obese. The Surgeon General found that these were the greatest areas for potential prevention and treatment actions.

In Dr. Thompson's case, it was important for the jury to understand that the patient's size made the medical procedure more difficult, but to do so without appearing to “blame” the plaintiff for her injury. This is a fine line, and the presentation of testimony describing the risks of the procedure, for example, was a challenge for both trial counsel and the physician on the witness stand. No attempt was made during cross-examination of the plaintiff to suggest that she did anything “wrong,” either in causation of the original, underlying condition or the problems she experienced post-operatively. Different considerations may apply, however, where surgery is directly related to the patient's obesity.

The Special Case of Bariatric Surgery

Surgical treatment for weight loss dates from the 1950s. The most significant treatment in terms of invasiveness, success and risk involves bariatric surgery. Bariatric surgical procedures are gastrointestinal operations that seal off most of the stomach to reduce the amount of food the individual can eat, and rearrange the small intestine to reduce the calories the body can absorb. Smith, Gassman, Rainey: The Battle of the Bulge: Trends in Bariatric Surgery” (www.sdma.com/sedgwick. updwww.sdma.com/sedgwick. updates). Bariatric surgery is now a recognized sub-interest in the field of General Surgery, and is endorsed by the National Institutes of Health Consensus Conference.

Consideration of the individual techniques of bariatric surgery is beyond the scope of this article. Overall, however, it appears that the number of bariatric surgeries performed each year to address obesity and related ailments is increasing on an annual basis. In 2001, approximately 40,000 Americans turned to weight loss surgery. Two years later, it was estimated that over 100,000 would elect this surgery.

The risks are clear: The International Bariatric Surgery Registry pegged the 30-day mortality rate at one in 300. However, the real rate may be much higher, almost one in 50, close to the death rate from coronary surgery. The increased fatality rate finding emerges from a survey conducted by David Blum, a University of Washington gastrointestinal surgeon, who surveyed a representative sample of several thousand gastric bypass patients. The survey attributes the high complication rate to inexperienced surgeons rushing to offer a lucrative but technically demanding “plumbing job,” in part. Id., “The Battle of the Bulge,” at 7-8. As the number of bariatric surgical procedures increases, with significant risks in the post-operative period, we may expect that the number of medical malpractice claims will increase as well. While evidence of the patient's morbid obesity was somewhat collateral to the issue in Dr. Thompson's case, such evidence would be relevant, if not dispositive, in cases involving bariatric surgery, where obesity is the controlling factor in the patient's course of therapy.

Conclusion

Given the prevalence of overweight and obesity in our society, the manner in which evidence related to those conditions may impact upon a final disposition is limited only by the imagination of counsel. For example, one case involving a patient's specific health care choices (including sedentary lifestyle, obesity and failure to follow a physician's instructions) has been reported in the context of post-operative complications after a hysterectomy. See Logacz v. Brea Community Hospital , 71 CA.4th 1149 (CA.Super.Ct. 1999). Still another commentator has analyzed the impact of diabetes, a known risk of overweight and obesity, in the medical malpractice context. See Malone, Patrick A: “Medical Malpractice and the Failure to Manage Diabetes” (www.steinmitchell.com) (suggesting that one potential defense in a diabetes malpractice case “is the patient's own negligence to manage their diabetes.”). Evidence of overweight and obesity may support a defense of contributory/comparative negligence in many contexts, provided appropriate expert testimony establishes the necessary foundation.

The emergence of an obese class of citizens in the United States should be expected to have a significant impact on the adjudication of professional malpractice cases. Authority such as the Centers for Disease Control and the Surgeon General's “Call to Action” document the extent of this emerging phenomenon. The challenge for defense lawyers will be to distinguish those cases, such as Dr. Thompson's, in which obesity is a factor relevant to the jury's knowledge, but not necessarily its verdict, from the more troubling cases, where individual choices and lifestyle decisions lead a patient into significant health care problems through no fault of a treating physician.