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

by James W. Saxton, JD; Maggie M. Finkelstein, JD; and Susan Gallagher Camden, RN, MSN, PhD All from Stevens & Lee, Lawyers and Consultants

This second 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.

I was recently named as a defendant in a lawsuit. This is the first time that I have ever been a defendant. I do not know what to expect, and specifically wonder what I should expect if I am deposed. I have heard such horror stories.

Experts: For those who have not been sued before, it can initially be alarming to be named in a lawsuit. The good news is that with the right lawyer and the right approach, this experience does not have to be like the horror stories that you have heard. One of the most important things you can do at the outset is to truly partner with your lawyer. By doing so, you can increase your odds for a better outcome. You should partner with your lawyer throughout the process, including in preparation and at a deposition.

A deposition is basically a question and answer session, with the plaintiff’s attorney directing the questions to you. It occurs some time after the lawsuit has been filed but before any trial. It serves as an opportunity for the plaintiff’s attorney to determine your opinions and recollection of the events underlying the suit—in other words, what you would testify to at trial. It also serves as an opportunity for the plaintiff’s attorney to assess what type of witness you would be at trial—how effective you would be. The deposition can truly make or break your case and can determine whether you will be dismissed from the case. It is important to take the deposition seriously and to truly prepare for your deposition. That means meeting with your lawyer several times in advance of the depositions, practicing deposition questions and answers, and reviewing the pertinent and relevant medical records.

Attorneys representing all parties are present as well as a court reporter. The court reporter administers an oath to you where you testify to tell the truth. The deposition may or may not be videotaped. If it is, there would be a videographer present as well. Some times the plaintiff, or patient, will be present. This is often a strategic decision by plaintiff’s counsel. Your lawyer should discuss with you these process issues so that you can be truly prepared for your deposition.

Additional suggested reading:

1. Saxton JW. The Satisfied Patient: A Guide to Preventing Malpractice Claims by Providing Excellent Customer Service. Marblehead, MA: HCPro Inc. 2003.

Although the 1991 NIH Consensus Statement suggests a maximum age limit of 65 for bariatric surgery, we are beginning to perform surgeries on certain patients over 60 who have had extensive preoperative physical and emotional clearance. Most of the patients seem to do very well, while others experience an extended length of stay with associated deconditioning. We find that some of our older patients have never participated in any type of physical activity and this concerns us. We understand activity is particularly important among older weight loss surgery patients. There are several resources available for our patients, including the local gym and our hospital-based physical therapy (PT) team. Recently, a member of the PT team asked if we could collaborate on a teaching tool specifically designed for older patients having weight loss surgery. What are the trends of obesity among older Americans? What resources are available to develop a meaningful teaching tool?

Experts: In the United States, 13 percent of the population is over the age of 65, and this proportion is expected to reach 20 percent by 2030. Statistics suggest that more and more older Americans are carrying extra weight. For example, an estimated 40 percent of individuals between the ages of 60 and 69 have a body mass index (BMI) of 30 or more. Thirty percent of those between ages of 70 and 79 are categorically obese. Research suggests decreased physical performance and functional limitation is due to an elevated BMI.

It is difficult to categorize every obese older candidate as posing a surgical risk; however, most clinicians recognize the potential for risk when patients with decreased physical performance and functional limitations seek weight loss surgery. Preoperative screening is imperative because in general, body composition analyses suggest that excess fat mass and muscle mass loss may be contributing factors to the increased risk for disability. Obesity coupled with the challenges of aging leads to an unfortunate burden of chronic disease, functional decline, and poor quality of life. For this reason, healthcare clinicians and others are seeking creative ways to overcome these threats, reimbursement, outcomes, and other changes that are driving access to weight loss surgery in this population. It is well established that physical activity dramatically improves quality of life among all over the age of 65. This may be even more important among those who have had weight loss surgery. For this reason, weight loss surgery practices are seeking ways to support their patients in making a lifestyle change to incorporate more physical activity. In a recent JAMA article,¹ the authors contend that fitness and physical activity are safe for most older adults, even for those with stable chronic conditions, such as heart disease, diabetes, and arthritis. In developing a teaching or guidance tool for physical activity, it is essential that activity is specifically tailored to the patient’s functional limitations. Safe physical activity needs to be patient-specific to prevent injury. A specially trained physical therapist, kinesiologist, or other expert may be valuable in addressing the patient’s needs. For some, walking programs are beneficial; for others, water exercise or low-impact activities are preferred. Establish the patient’s preferences. For example, in some cases patients tend to be more successful if they are involved in group activities that incorporate a social aspect; however, it is important to recognize this is a patient-specific assumption. Regardless, the most important factor is that patients should consider an activity that promotes long-term behavioral change.

Additional suggested reading:

1. Bender E, Burke AE, Glass RM. Fitness for older adults. JAMA 2006;296(2):141.
2. Camden SG, Gates J. Obesity: the changing face of geriatric care. Ostomy Wound Manage 2006;52(10):50–7.
3. Gallagher SM. Obesity and the aging adult. Clin Geriatr Med 2005;21(4):757–65.
4. Gosti CL. The crucial role of exercise and physical activity in weight management and functional improvement for seniors. Clin Geriatr Med 2005;21(4):747–56.
5. Manini TM, Everhart JE, Patel KV, et al. Daily activity energy expenditure and mortality among older adults. JAMA 2006;296:171–9.Nelson LG, Murr MM. Bariatric surgery after age 65: Weighing the risk. Bariatric Times 2006; 3(3):1,7–9.
6. Sosa JL, Baez JE. Effect of exercise on weight loss in the first six months after laparoscopic gastric bypass. ASBS Abstracts: Poster Session 2006. SOARD 2006;2:340.
7. Torpy JM, Lynm C, Glass R. Fitness: Patient Page. JAMA 2005;294(23):3048.
8. Trieu H, Szomstein S, Rosenthaul R. Safety of bariatric surgery in patients 65 years of age and older. ASBS Abstracts: Poster Session 2006. SOARD 2006;2:314.
9. Zografakis JG, Hawn K, Pasini D. Non-compliance with an organized exercise program after weight reduction surgery. ASBS Abstracts: Poster Session 2006. SOARD 2006;2:346.

In the acute care facility where we work, the documentation task force is considering “Exception Charting.” We thought this practice lost favor for legal reasons. What precautions should we be aware of?

Experts: As more and more facilities and office practices move to a fully electronic medical record, the debate concerning exception charting is resurfacing. Charting by exception initially gained recognition in the 1980s as a strategy to reduce charting time and length and to draw attention to more significant data. This trend quickly lost favor. Again in the 1990s exception charting tried to reappear. Exception charting only requires documentation of abnormal events compared to a system that includes a written description of all medical care in narrative progress notes or flow sheets. The overarching theme that has haunted attorneys and clinicians for the past three decades is the old adage, “Not documented, not done.”

One of the main concerns from a legal perspective is that a comprehensive baseline assessment addressing the individual patient’s unique care issues may lack. Facilities implementing exception charting Bariatric Times • March 2007must understand that many plaintiffs’ attorneys will argue that there are lapses in care if the clinician failed to document the event(s). Many clinicians understand the argument that if it wasn’t charted, it wasn’t done. From a chart audit point of view, most clinicians recognize that missing information is sometimes a function of being so busy that the clinician simply overlooked documenting certain activities/tasks that were seemingly insignificant at the time or simply indicates carelessness. Unfortunately, these activities/tasks are sometimes critical to the defense of an individual or facility and may never end up being documented leading to inaccurate assumptions with no way to clarify the actual events. The danger inherent in any particular method of documentation is inconsistency. For example, in Lama versus Borras, 16 F3d 473 (1st Cir [PR 1994]), involving a claim pertaining to exception charting, the plaintiff won not because there was merely missing information, but because there was missing information that policies and procedures stated needed to be included in the record. Any form of documentation is only as good as the policies and procedures adopted to implement the model. Permitting various types of documentation (narrative and exception concurrently) is confusing and could support the argument that the missing information is indicative of careless or substandard care. Therefore, facilities choosing to institute exception charting should understand the risks associated with such a move, and if they decide to move forward, should carefully prepare policies indicating the specifics to use. Care needs to be taken and processes need to be in place to make sure the electronic record using charting by exception captures the essence of the individual patient and his care issues. Provisions for a comprehensive baseline must exist. Once a facility or office practice has drafted its own documentation procedures and clearly explained them to staff members, chart audits should be considered. One of the best ways to ensure staff members are actually following procedures is implementing periodic chart audits that are integrated into the facility’s performance improvement processes. There are many reasons why physicians, nurses, and others fail to consistently document according to accepted policies and procedure. The challenge rests in understanding and overcoming these barriers.

Additional suggested reading:

1. Burke LJ, Murphy J. Charting by Exception Applications: Making It Work in Clinical Settings. Albany (NY): Delmar Publishers; 1995.
2. Lougachi K, McCumber AR. Defensive documentation. LTC Advisor 2006;9(1):6–7.
3. Murphy EK. Charting by exception—OR nursinglaw. AORN 2003;76(12):821.Treister NW. Physician acceptance of new medical information systems. Accessed 01/01/07 at: www.cio.com/research/healthcare/field_of_dreams. html.

Category: Consultant’s Corner, Past Articles