Understanding Bariatric Risk—A Legal, Clinical, and Customer Service Focus

| June 2, 2007

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

Both from Stevens & Lee, Lawyers and Consultants

This third installment of our newest Bariatric Times column serves to answer all of your legal, managerial, treatment-related, and universal bariatric questions. Keep in the loop simply by reading your fellow bariatric professionals’ questions and our experts’ answers in the coming issues, or by sending in your own inquiries involving issues in your bariatric practice.

We are really interested in creating a customer-centered practice. Can you give one example of a bariatric surgery program that provides a high level of customer service?

Experts: The idea of customer-focused service affects every aspect of American life—whether we are talking about service at the grocery store, dry cleaner, physician’s office, or hospital. It is important to understand how behavior affects the customer’s perception. Opinions are made in the first 10 seconds of an encounter. This perception ultimately affects whether we use a grocery store or a physician or a hospital again. In a competitive bariatric surgery market that thrives on word of mouth, it is important to remember that a satisfied customer tells five other people about a pleasant experience, while an unhappy customer tells 20 other people about an unpleasant experience. Therefore, this perception affects not only whether or not your customer will use your service again, but whether others in the community will use your services at all.

Creating a culture of service excellence requires planning, preparation, and persistence. Customer service transcends all aspects of practice—both clinical and non-clinical. You cannot overlook the non-clinical aspects of your practice. Examples include telephone interaction, waiting times, comfort in the waiting areas, and billing.

An approach to understanding customer needs is to simply ask your customers (or patients) about their experience: “Did you wait long?” or “Was the wait comfortable?” Often, you will hear needs that relate to each of your customers—these are called universal needs. Listen to the specific needs of each customer and encourage them to share with you their realistic expectations of you, the team, and your service. Without defining these expectations, there can be disappointments. In other words, create a relationship where customers are entirely comfortable expressing their satisfaction and disappointments.

The primary reason for disappointment is miscommunication, and therefore it is important to explore these reactions to you and the services you provide. It is human nature to express fear, anger, or worse, passivity, when expectations are not met. It is also human nature to feel defensive and protective when faced with an angry customer. Remind yourself that at least your customer is talking…it is the passive customer who refuses to express the source of disappointment who is the most problematic because you may not learn about the disappointment. Encourage your customers to talk with you. Consider developing a written policy for managing the angry patient and make sure every person in the practice understands the policy. Service recovery is essential to increasing patient satisfaction, which can only benefit your practice.

A patient satisfaction survey is a good tool for determining patient needs and concerns. In the Novus Insurance Company Risk Retention Group, Stevens and Lee’s Health Care Litigation and Risk Management team provides tools and training to Novus insureds to address the many aspects of customer service excellence. The physician practices in Novus are examples of practices of those that are truly customer-focused. Service excellence tools and educational programming for physicians, staff, and business managers are ongoing. One of the hardest parts of a five-star practice is maintaining the five-star culture. All staff need tools and continuous reinforcement. including orientation, in-services, and incorporation of service excellence into employee evaluations.

Make service excellence the thread of your practice and be the example for others in everything you do–talking with patients, talking with staff, and interacting with consultants and colleagues. It is noticed by employees and patients. Excellence in customer service is an exciting and ongoing process. Ask the question: How strong is my service message even on our most stressful day? This is the heart of customer service…ensuring consistency in excellence—excellence your customer can count on.

Additional suggested reading:

1. Baird K. Customer Service in Health Care: A Grassroots Approach to Creating a Culture of Service Excellence. New York: Jossey-Bass; 2000.
2. Saxton JW. The Satisfied Patient: A Guide to Preventing Malpractice Claims by Providing Excellent Customer Service. Marblehead, MA: HCPro Inc.; 2003.

I am still very confused about the standard of care. I worked at a facility that offered wound care by a plastic surgeon and now I am at a facility that provides physical therapy for our obese patients with lower leg ulcers. Does the standard of care change?

Experts: To hold a healthcare provider liable for negligence, a plaintiff\patient must prove that the healthcare provider owed a duty of care to the patient and that the healthcare provider breached that duty. That duty is established when the physician-patient relationship is created. Once established, the healthcare provider’s care must fall within the applicable standard of care.

The standard of care generally requires that a physician have and use the same knowledge and skill, and exercise the same care, as that which is usually possessed and exercised in the medical profession. Meanwhile, a specialist generally must meet a higher standard of care–a specialist must have and use the same knowledge and skill, and exercise the same care, as that possessed and exercised by other specialists in the same specialty. To establish the applicable standard of care in a professional liability case generally requires expert testimony. The standard of care is not the provider’s own personal judgment, but rather what is the accepted standard of care given a specified locale and underlying facts including specialty. Neither is it a “B” standard, nor what we wished had occurred in retrospect.

Does that mean that there is only one standard of care in a given medical situation? Not at all. There may be more than one appropriate standard of care—sometimes referred to as the “Two Schools of Thought.” There may be standards of care that are less frequently employed, but that are perfectly appropriate in a given situation. Therefore, in your situation, you would be held to the knowledge and skill of a healthcare provider with your training and education of providing physical therapy to obese patients with lower leg ulcers. An expert in your field would establish that standard.

It is important to understand that one is not negligent unless that standard of care has been established and that an expert establish a breach of that standard. That breach generally also requires expert testimony. Once the standard of care and a breach are established, it means that the healthcare provider is negligent. Further, recognize that one can be negligent but not liable; that is, either the negligence did not cause the harm, or no harm resulted. To obtain damages, a plaintiff must prove four elements: (1) the standard of care; (2) breach of that standard; (3) the breach caused harm; and (4) the harm. The standard of care is a component of liability in a professional medical negligence case; however, how it is defined in a particular circumstance can make or break a case. Expert testimony is not only required for elements one and two, but generally to establish element three—causation. As you can see, expert testimony is a very important aspect of a professional medical negligence case.

Many professional organizations are moving to hold experts accountable for their testimony, and in one way or another have addressed the issue of false medical expert testimony. The trend is moving to accountability for expert testimony. When you consider the implications of being liable in a professional medical negligence case, accountability must continue. An aggressive defense is a component of accountability—we must attack plaintiff expert testimony in bariatrics. If you are ever a defendant in a professional medical negligence suit, insist that your defense counsel provide you with an aggressive defense that includes obtaining a true expert to testify on your behalf and attack the plaintiff’s expert. The Novus Insurance Company Risk Retention Group insureds have a national defense panel composed of defense attorneys experienced in bariatrics that aggressively defend bariatric surgeons and their practices in this way.

I hear more and more about nutrition—we have a dietitian in case there are questions, is there anything else to consider?

Experts: The dietitian is an incredibly important and integral member of the interdisciplinary healthcare team. In general, the hot topics pertaining to weight loss surgery include: Preoperative weight loss, preoperative nutritional support, long- and short-term nutritional supplements, role of long-term follow-up, and the role of patient exams and
contracts.

It is well established that many morbidly obese individuals are malnourished. In addition, research suggests many suffer from nonalcoholic steatohepatitis (NASH). NASH occurs for a number of reasons, but in the presence of obesity it is thought that excess calories lead to fatty build up in the liver. In other words, when the liver does not process and break down fats as it normally should, too much fat accumulates. Factors that contribute to NASH include the following: Obesity, high triglycerides, diabetes, and malnutrition. Surgeons report a large fatty liver can interfere with surgery among certain categories of patients having certain types of weight loss procedures.

The selection and preoperative screening process for weight loss surgery can take several months. Some practices take advantage of this time to address health promotion. Sound nutrition and increased activity are health promotion ideas that serve as tools to control for intraoperative problems, such as NASH. In addition, proper nutrition is thought to prevent local and systemic infection, anastamotic leak, and dehiscence. For example, vitamin A is essential for collagen synthesis and epithelization; B complex vitamins act as cofactors in enzyme reactions necessary for wound healing; and vitamin C, zinc, copper, and iron are essential for collagen synthesis. In addition, vitamin C is instrumental to capillary formation and resistance to infection. Protein has long been established as essential for building new tissue. Some patients are asked to lose weight before surgery. Preoperative weight loss is not punitive, and when discussing this topic with patients, it is important for them to fully understand the role of good nutrition to postoperative healing. Some experts take it a step further and use this time to help the patient prepare their world for their postoperative journey. In her book, The Emotional First Aid Kit,1 Dr. Cynthia Alexander reminds patients that weight loss surgery consists of two entirely separate components: The surgery itself and the lifestyle changes. She suggests six things to patients that they might do preoperatively to address lifestyle changes; they are the following: 1) prepare your environment, 2) prepare your support system, 3) emphasize activity instead of food, 4) begin to learn to structure your eating habits, 5) control emotional and recreational eating, and 6) become more active. By embarking on this journey before the surgery, patients avoid the outdated thinking of combining surgery with lifestyle changes—the old way of thinking is to wait for the surgery to start lifestyle changes. Alexander believes healthy habits start prior to surgery.

The goals of long-term follow-up are many; however, from a nutritional perspective, restrictive and restrictive and malabsorptive procedures place the patient at risk for nutritional deficiencies. These deficiencies lead to a plethora of health issues. Many practices use a patient contract and patient exam to educate and document the fact that the patient has received and expressed understanding. Stevens and Lee/NOVUS provides not only a patient exam and contract for surgery in general, but another addressing the topic of nutrition and vitamin/mineral supplementation. Practices across the country are evolving to better integrate the science of nutrition into all phases of patient education and the interdisciplinary approach.

Additional suggested reading:
1. Alexander C. The Emotional First Aid Kit; A Practical Guide to Life After Bariatric Surgery. Edgemont, PA: Matrix Medical Communications. 2006.
2. Fatty liver. Accessed at: www.liverfoundation.org. Access date: March 27, 2007.
3. Jacques J. Micronutrition for the Weight Loss Surgery Patient. Edgemont, PA: Matrix Medical Communications; 2006.

To contact James W. Saxton, please email JWS@stevenslee.com. To contact Susan Gallagher, please email SGC@stevenslee.com.

Category: Consultant’s Corner

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