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

How does the practice of an interdisciplinary team approach impact professional liability risk?

Experts: If you are a regular reader of this column, you have heard us say that malpractice is not often the true cause of a malpractice claim; rather, communication issues, documentation issues, and service lapses are often what prompt patients to file suit. A well organized and trained interdisciplinary team can support improvement in these important core areas.

One important aspect of the interdisciplinary team is preplanning and educational efforts. We know that one common allegation in claims against bariatric surgeons is that the patient was not an appropriate candidate for the surgery in the first place. The pre-selection process includes obtaining the appropriate medical clearances from the bariatric team, and may also include cardiac clearance, family practice clearance, and a psychological assessment clearance. Documentation of each of these is essential.

The bariatric team can also provide valuable input in the pre-selection process. For example, the pharmacists, physical, occupational and respiratory therapists, supporting physicians, and clinical nurse specialists can be essential in developing preplanning care. The physical therapist may have ideas for mobilizing a patient who is otherwise immobile because of his body weight and thereby prevent an adverse outcome, such as pneumonia or pressure ulcers, that can result from immobility. The enterostomal therapy/wound ostomy continence nurse (ET/WOC) nurse may offer a plan of care to address the prevention of certain types of skin injury, which could occur in the obese patient whose clinical course falls from the expected progression. The entire healthcare team must be diligent in caring for the morbidly obese patient who is critically ill. Being aware of the possible complications and corresponding interventions is necessary to prevent adverse events.

Communication and timing can be critical in preventing adverse events from occurring. Although sometimes difficult to arrange, a face to face interdisciplinary conference, which is planned within 24 hours of admission, may prevent costly intervention later. This can be part of a CREW Resource Management program like that discussed in the answer to the next question.

Another strategy is to include the patient’s significant other in educational discussions with the patient. What we have seen in some claims is that the surgeon had a great rapport with a patient, an untoward outcome occurred, and the patient was accepting but the family member or spouse was not. That spouse did not have the benefit of educational discussion, and often pushes the patient-spouse to file suit or even to just “go see a lawyer,” which is often the beginnings of a suit. One strategy developed by NOVUS RRG is a significant other/family advocate consent form, along with an educational module, which documents the family member’s understanding of the procedure and its risks. This can be used as a reminder if there is a discussion with the patient and/or patient’s family member or advocate post-event or as appropriate evidence should a suit be filed.

The strength of a team has gained favor as the nature of patient care has become increasingly complex, particularly with the unique circumstances presented with the typical bariatric patient. The interdisciplinary team can go a long way in improving patient outcomes and reducing professional liability risk.

I am a new staff nurse who has worked on the bariatric unit for a short time. The concept of the interdisciplinary team is fine, and so is ongoing education and protocols, but what about the instance before there is a crisis—when I simply feel like something isn’t right with the patient and there isn’t a protocol to help me understand my intuitive sense?

Experts: Education provided to ensure basic skills or competencies is imperative and has become a critical part of introducing a bariatric unit. Education must be both relevant and practical. Surveys can establish the actual learning needs of staff nurses. The value of a diverse, interdisciplinary bariatric team is that its members serve to provide a pool of experts to develop lesson plans/education addressing specific nursing needs. For example, assuming clinicians are seeking information pertaining to sensitivity, a social worker, chaplain, nurse expert, and patient member of the team could develop a module to teach these skills. The same relates to unexpected outcomes, safe patient handling, and other important bariatric-related topics. However, education only goes so far. Experience is an important key to becoming an expert in bariatric nursing.

Understanding the importance of early assessment, documentation, and notification by allied health members to the surgeon when the patient’s condition changes are the keys to success. You are right in your description of an intuitive sense—at times novice nurses at the bedside simply feel there is a problem but may not have the expertise to understand the situation fully. Some bariatric units have developed a BAT team—an idea that grew from the PAT (patient assessment team). The bariatric assessment team or BAT for short is available to any clinician who wants a second set of “eyes.” Members of BAT are highly experienced and trained bariatric clinicians who are assigned to this task for the duration of their shifts. A team member would be available to review the patient’s situation with the staff nurse to determine if in fact further investigation and reporting is necessary. The team member may be a house supervisor with additional skill, another staff nurse, or other expert clinician who can use these opportunities for training novice nurses and screening patients for the early signs of unexpected untoward situations. From a practical perspective bariatric nursing is a new specialty and often a general med-surg nurse is assigned to care for the WLS patient. The BAT is especially valuable when the nurse feels overwhelmed or ill-prepared, especially for new bariatric units, until all staff members are comfortable with early detection of unexpected outcomes. Therefore the goal of the BAT is two-fold: To provide early assessment of clinical changes, and to support the learning efforts of novice nurses in the new and emerging field of bariatrics. This is a concept similar to CREW Resource Management, which originated in a NASA workshop in 1979 and has gone on to improve safety in the airline industry. The CREW concept is intended to foster free communication among the members of a system. In the healthcare context, it means the willingness of a member of the team (e.g., nursing, anesthesiology, staff) to raise their hands when something just does not seem right or is not right. To be effective, good communication skills are essential, particularly in environments like the airlines where a hierarchical system has been in place.

Importantly, in the healthcare industry, this type of environment must also include a means to allow frank, open discussion. We are referring to attorney client privilege, peer review, and quality improvement efforts. Organizations like NOVUS RRG include an infrastructure for surgeons that allow for event management through confidential means. The result of this type of organization is improvement in patient outcomes.

As the health insurance crisis continues to be an issue for some patients, I see more and more patients who want to pay for weight loss surgery themselves. This is agreeable as an option when the process follows its expected course, but what happens if a patient feels the surgery either did not meet hia or her expectations or if a costly complication occurs? What happens when self-pay patients try to recoup their costs by filing a claim? How are surgeons protecting themselves?

Experts: The issue of self-pay complicates care in that this is not a payment structure that is familiar to many, and often professional liability risks associated with the care of self pay patients is subtle. Too often, and often unknowingly, surgeons’ patient care decision-making is based on financial considerations. This cannot happen. Sometimes, there may be the temptation to disregard some of the pre-surgical steps or requirements. However, this can do you and the patient more harm than good, negatively impacting your professional liability risk.

Regardless of the payment method, patients need to be fully aware of a planned surgical procedure and its risks and benefits. Remember, the presurgical requirements and education of patients that you perform on a regular basis are not only potentially requirements for reimbursement or NIH requirements, but they are also good risk reduction strategies.

We know that often the causes of claims are miscommunications, documentation issues, and service lapses. Consistency is the key, including in-depth education, attention to detail, and documentation. Otherwise, a “plus” situation could be created where jurors use aggravating circumstances against a physician-defendant, and even use them to increase the value of an award.
We often see claims filed by a self pay patient where simply a known complication occurred, and the self pay patient alleges that had he or she known of the real risk of the complication that occurred he or she never would have moved forward with the procedure. The patient must understand the risks, benefits, realistic expectations, and options available and attest to this with a signature. The second general procedure-specific informed consent form can help. This type of form is being used nationally and has proven to reduce lack of informed consent claims and the associated negligence claims. On the form, the patient must attest to understanding of the risks and benefits, the alternatives to the procedure, and the risks associated with the alternatives. The informed consent process is an important step to reduce liability risk a to all patients, and particularly with self pay patients.

Other strategies include the use of insurance policies for surgeons to place a cap on the financial exposure of medical costs when a complication occurs. Further, some organizations help the self pay patient by providing funding sources for the surgery. These objectives are collaborative and aimed to decrease the financial burden of known complications as to the surgeon, the hospital, and the patient.

We suggest using a document to describe fully the rights and responsibilities inherent in the self-pay process—the rights and responsibilities of the patient, bariatric team, and surgeon. NOVUS RRG has created such a document for its insureds—a Self-Pay Acknowledgement Form—that serves to prevent misunderstandings. In NOVUS, the risk management and legal teams work in conjunction with a quality assurance committee to identify areas of professional liability risk for bariatric surgeons and to create tools and strategies that attack that risk. In review and analysis of data, the need for reinforced education and documentation of the same to self pay patients became apparent. This tool is designed to attack that risk, to ensure the self pay patient understanding of responsibilities and real risks of the procedure, and to provide documentation that can be used for the insured when a complication does occur with a self pay patient. For example, detailing the financial obligations, the cost of complications, and acceptance of those costs if those complications were to occur.

Self pay patients will often ask for refunds and monetary compensation. This document can be used in the management of such requests, and to reinforce with the patient their understanding of the potential for a complication and that the self pay patient continues to be responsible for payment related to the care provided, as was discussed and documented!

We must stop paying for claims where known complications occur. The real homerun is long-term—Plaintiff lawyers must know that we will not settle claims based on known complications, which are not malpractice.

Category: Consultant’s Corner, Past Articles