Consultant’s Corner: Understanding Bariatric Risk—A Legal, Clinical, and Customer Service Focus

| April 15, 2008

by James W. Saxton, JD; Maggie M. Finkelstein, JD;
and Susan Gallagher Camden, RN, MSN, PhD

All from Stevens & Lee, Lawyers and Consultants

Staff members in my office become so discouraged with some of our patients. The patients start off very enthusiastic about weight loss surgery, but once they have their surgery, some seem to completely disregard the teachings we have worked on with them. I suspect staff members are behaving disrespectfully toward some patients simply because of their frustration level. I wonder if there is anything we can do to motivate our patients to have more self-discipline. Help us understand, and please offer some concrete strategies to address this problem.

Experts: Making lifelong behavioral change is difficult for everyone, but especially individuals who have had long-term failure in managing a complex chronic condition such as obesity.1 Understanding the challenges inherent in learning new behaviors and changing old behaviors can be overwhelming for patients, their families/friends, and their clinicians. If managed unsuccessfully, this can lead to frustration, disrespect, and ultimately liability risk.

Patients often choose weight loss surgery because they have failed with previous attempts at weight loss. Most would agree that these patients are attracted by the promise of a sudden and spectacular change in their situation. Hoffer explains that widespread enthusiasm or excitement is needed for the realization of this promise.2 Individuals across the country are genuinely excited by the idea of finally winning the weight loss battle; however, in order to achieve success, two factors must be in place. One of these is a sense of power; the other is hope.

Those individuals struggling with their weight are now offered the power to make a change. Hoffer might suggest that weight loss surgery offers the morbidly obese person the hope to tame a lifelong struggle. Although this is an exciting time for those who embrace this newly found hope and power, the reality of weight loss is that the weight loss surgery alone will not ensure success. Hope—when not backed up by actual power—is likely to generate disappointment.2 In other words, some weight loss surgery candidates disregard the challenges and risks associated with weight loss surgery and simply seek the promise of a new transformed self. This sets up the threat for misunderstanding and further failure.

For example, consider Anna, who has struggled with her weight most of her life. She didn’t attend her senior prom or attend college. When hearing of weight loss surgery, she quickly felt hope for the future. She met with several surgeons and spent an incredible amount of energy overcoming economic barriers and meeting selection criteria. She did not spend a lot of time thinking about the lifelong changes the procedure would require. She did not care—she had struggled with her existence for decades and only saw promise. However, she did not possess the power to succeed. She disregarded opportunities to learn about postoperative requirements and lifelong follow-up, and saw surgery as her salvation and her surgeon as her savior. Three months postoperatively, Anna’s weight loss was minimal, she had thinning hair, and was lethargic most of the time and depressed all of the time. She was hopeless, powerless, and angry with a surgeon who she believed did not understand her.

By the time patients arrive at surgeon offices because they are considering weight loss surgery, many have tried every diet and exercise plan available. The morbidly obese person has become disillusioned with weight loss plans. Patients are reminded by clinicians to continue working hard now, but also to be patient because there will be less that feels good immediately and more that will not feel good until later. The problem is that the genetic needs themselves know nothing about later; they are continuing to compel us to do what feels good now. In the case of diet-induced hunger, the dieter can tell his or her stomach to tolerate the discomfort of today’s hunger in exchange for feeling better about himself or herself later when weight loss ensues. But a man’s stomach will not stop telling him that he needs food to satisfy one of the basic human needs. The longer the man diets, the more powerfully his stomach responds. This serves to begin the conflict dieters face every day—this basic human drive results in feelings of personal failure.

Some clinicians believe if they could just do a better job of motivating the patient, the weight loss process would prove more successful for all involved. However, Glasser explains that motivation, a commonly used word, is largely misunderstood.3 Motivation must come from within, and it is impossible to motivate another person. Clinicians and patients only possess the power to motivate—or more accurately control themselves. By saying, “My patient lacks motivation,” clinicians are more likely expressing, “I am frustrated because I lack the power to control the patient.” As clinicians, we often try to control the behaviors of ourselves and others when, in fact, we can only control ourselves.

What can you do? Become collaborative. Become a mentor. Partner with your patients. Incorporate patient accountability measures.

An effective mentor provides sound information and realistic support that allows the client—the patient—to take control of decision-making. This applies to all areas of chronic illness and other chronic conditions, including obesity.

Saxton explains that it is important to make patients partners in their own care and accountable for their own health.4 Several positive outcomes result when patients and clinicians partner, one of which is a significant reduction in the risk of a professional liability claim. Consider the theories posed by both Hoffer and Glasser.2,3 Hoffer contends that patients who see themselves in an overwhelmingly hopeless situation may disregard the risks or commitment involved in making a change. Glasser contends that caregivers overestimate their ability to influence patients. Both of these situations lend themselves to risk because the patient and clinician have failed to enter into a partnership. Patients need a realistic understanding of their procedure(s), accurate information in order to make choices, and an ongoing collaborative relationship with caregivers.

The challenge in weight loss surgery practice is that patient involvement does not just happen because someone wants the surgery. To truly develop a partnership with the patient, there has to be cultural change within the organization. Statements such as “You are an important part of your healthcare team” should be displayed. This message should be integrated into marketing materials, brochures, and patient education information. Every staff member must agree that patient involvement is an essential part of the collective goal. Admittedly, a cultural shift is tough to accomplish. It requires commitment by all members of the weight loss surgery team. It means reviewing the way patients communicate with staff members or the way patients receive instructions and education. For example, consider the opportunity to also turn your history form into a liability risk reduction tool. Patient self-history forms often fail to capture the patient’s entire pertinent health history—information that surgeons rely on in making diagnoses and treatment decisions. The patient’s history is particularly important in the bariatric surgery world. Determining whether a patient is a proper candidate for weight loss surgery is dependent on the patient’s health history, and ensuring proper documentation of the same is essential to reducing liability risk.

One theme often seen in professional liability claims involving bariatric surgery is that the patient was not a proper candidate for the surgery in the first place. Your self history form should incorporate language at the beginning and end of your document that helps to provide patient accountability for his or her completion of the history form, and which is ultimately a risk reduction strategy for you.

Additional methods for incorporating a true culture of involvement include patient educational brochures, literature, computer technology, and the informed consent process. Studies suggest that health education materials that are customized to the unique needs of the individual are more effective than generic handouts in eliciting behavioral changes.5 Advances in computer technology have made it possible for clinicians to individualize patient education materials. Computerized technology is also used to document that the patient has received and reviewed the information.

A continuous litigation problem over the years has been that of informed consent. Often lawsuits involve an allegation of lack of informed consent. In other words, had the patient known of the risks of a procedure, he or she would not have moved forward with the procedure. Web-based education is incorporating additional strengths to the informed consent process. Programs exist that document patient review of the educational program, incorporate a patient test and patient sign-off, and allow patients to ask their surgeons’ questions. This type of documentation can prevent or derail lawsuits based on lack of informed consent.

Studies and clinical experience suggest that patients must be involved in the development and execution of all behavioral change affecting them and their lifestyles. One way to do this is to incorporate a documentation tool that details expectations, responsibilities, and actions of both the patient and clinicians, and have the patient sign off on this document indicating his or her understanding and commitment.

Where to start can be overwhelming. Practices should first recognize the two major areas for which patients frequently fail to comply.4 Build education that meets the actual needs of the patient, providing accurate information from which patients can make choices. Ask patients to indicate their understanding of the information with signatures, and document the patients’ response in their medical records. Keep a log of educational material that is provided. Hoffer reminds us that certain segments of the patient population fail to recognize the whole picture because they are caught up in their desire for a complete transformation of their lives regardless of risk.2 The goal should be to create a culture of involvement by focusing on risk reduction strategies and tools, to enable bariatric surgeons and their team members to meet their goals.4

REFERENCES
1. Gallagher SM. Learning Theory In: SM Gallagher The Challenges of Caring for the Obese Patient. Matrix Medical Communications: Edgemont, PA. 2005.
2. Hoffer E. The True Believer: Thoughts on the Nature of Mass Movements. Harper Perennial: NY. 1951.
3. Glasser W. Control Theory: A New Explanation of How We Control Our Lives. Harper and Row: New York. 1985.
4. Saxton JW. The Satisfied Patient: A Guide to Preventing Malpractice Claims by Providing Excellent Customer Service Skills. HCPro: Marblehead (MA). 2007.
5. Kreuter MW, Holt CL. How do people process health information? Applications in an age of individualized communication. Curr Direction in Psycholog Sci 2001;10(6):206–9.

Category: Consultant’s Corner

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