Is the Office-based Pediatrician Liable for Pediatric Obesity?

By: Charles S. Schechter, Esq. and Sean F.X. Dugan, Esq.
Friday, August 18, 2017
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Early-onset obesity in America has been termed an “epidemic.” The Centers for Disease Control and Prevention estimates that 17 percent of American children are obese. Obesity is defined as a body mass index of greater than or equal to the 95th percentile. Aside from the extra cost of medical care involved, estimated to be $14 billion, obesity related conditions can result in significant future conditions, including cardiovascular issues, metabolic syndromes, orthopedic injuries, diabetes and end stage liver disease.

Due to the increased prevalence of pediatric obesity and its potentially lifelong destructive impact, the American Academy of Pediatrics (AAP) has increasingly become more active in its efforts to guide its practitioners to be more aggressive in tackling the disease and prevent the development of its more devastating sequela. For general obesity related issues, the AAP recommends that pediatricians urge parents to engage in diet and behavior management, along with active living, and a healthy home environment. Recently, however, the AAP has begun to specifically address one of the more pernicious sequela of childhood obesity, irreversible end stage liver disease.

Studies have recently shown that as many of 38 percent of children with obesity are impacted with non-alcoholic fatty liver disease (NAFLD). NAFLD, if left untreated, can result in end stage liver disease and has become one of the leading causes of liver transplantations in adults. There are no current available recommended medications to treat NAFLD. However, if NAFLD is detected early and treated with diet improvements and increased physical activity, irreversible end stage liver disease may be avoided. As such, recently the AAP endorsed clinical practice guidelines for the routine screening of obese and overweight children at high risk for NAFLD issued by the North American Society for Pediatric Gastroenterology, Hepatology and Nutrition (NASPGHAN). The goal of the new practice guidelines appears clearly designed for early diagnosis of these at risk children to prevent the development of irreversible liver complications several years later. The new guidelines are in essence establishing a standard of care in the detection and treatment of NAFLD.

Medical malpractice insurers in New York state advise they have not yet seen any lawsuits targeting pediatricians for NAFLD or even the more general, early-onset obesity. The lack of such legal actions can be attributable to the long period of time for the truly devastating results of childhood obesity to develop and be detected. In the case of NAFLD, irreversible liver damage requiring liver transplantation generally does not develop during childhood.

Under current law, the statute of limitations barring a medical malpractice lawsuit would have in many cases expired. However, there is increasing pressure being placed on state legislatures to amend the statute to start the period of time to commence a lawsuit to the moment of discovery of the harm alleged. Such changes, if implemented, could potentially increase the exposure borne by pediatricians for treatment of pediatric obesity complications including NAFLD. Under such a statute of limitations, it is conceivable that a former patient might be able to bring a lawsuit against his/her pediatrician for the failure to address pediatric obesity which in adulthood developed into an irreversible, permanent condition.

To protect against such future suits, pediatricians should engage in proactive behavior. Pediatricians should follow closely their obese patients and counsel them concerning the long term impact of obesity. The discussion should include recommendations for lifestyle changes including healthier diet and increased physical activity. For those patients who are obese and at high risk for NAFLD, screening — initially with an Alanine Aminotransferase (ALT) pursuant to the NASPGHAN guidelines — is recommended. Based upon the results of the ALT, additional screening methods and referrals to the appropriate specialists should be considered. As always, all discussions with the child’s parent, as well as all screening, should be specifically documented in the record. The records should be maintained for years to afford the clinician the best defense should any treatment related to pediatric obesity become the basis of a lawsuit.


Charles Schechter and Sean Dugan are Partners at Martin Clearwater & Bell LLP. For more information, visit www.mcblaw.com.