The “Skinny” on Bariatric Surgery

Anthony M. Sola, Esq. and Emma B. Glazer, Esq.
Wednesday, December 19, 2018

Obesity in America has been called a national epidemic. With a plethora of fast-food restaurants, more Americans are overweight than in prior generations. In 1976, 15 percent of American adults were obese. Now, almost 40 percent of American adults are obese.1 With its attendant health conditions of diabetes, cardiovascular disease, etc., obesity has even been referred to as a public health crisis. After failed dieting, exercising and conservative weight-loss measures, many overweight individuals turn to bariatric surgery in their quest to lose weight and live healthier lives.

The decision to undergo bariatric surgery, however, is not an easy one. Bariatric surgeons often require multiple preoperative consultations, including one with a nutritionist. Bariatric patients often overlook the potential that they may suffer from malnutrition post-surgery.

Bariatric surgery procedures alter the anatomy of the gastrointestinal tract such that, postoperatively, patients are at a heightened risk for malabsorption. While patients often desire immediate, significant weight loss, this can be dangerous to their long-term health. Rapid weight loss can be the result of reduced food intake and food intolerance, more so than the surgery itself. Malnutrition and vitamin deficiency, however, can have serious consequences for these patients, such as anemia, clotting problems, reduced bone density, etc. In addition, patients who suffer from malnutrition may have longer recovery periods.

Therefore, it is important that patients be educated as to how to lose weight in a healthy way. This can be done through the aid of a licensed dietitian or nutritionist to guide patients toward healthy eating habits.

As a result of the competing desire to lose weight and the need for adequate nutrition, it is critical that bariatric surgery candidates develop a food and supplement plan before proceeding with surgery. It is recommended that patients receive presurgical counseling on vitamins, protein supplements and foods that are safe to consume in the immediate postoperative period. Patients should try such foods prior to surgery to ensure they can tolerate them.

In the context of a medical malpractice lawsuit, a postoperative patient who suffers from malnutrition may assert both a general medical malpractice cause of action as well as an informed consent claim. Specific claims within a medical malpractice cause of action can include failure to timely diagnose the malnutrition, failure to perform a thorough preoperative nutrition consultation, and failure to prescribe appropriate postoperative medications and supplements.

While malnutrition is a well-recognized known risk of bariatric surgery, patients must still be informed of the risk. Best practices for defense of an informed consent claim — namely, that the patient was not adequately informed of the risk of malnutrition — include thorough documentation of presurgical conversations between doctor and patient about malnutrition risks. It can also be helpful if patients are given handouts as further objective evidence of the consent process (but these handouts must be maintained for the length of the statute of limitations, as the defendant will have to produce them at trial to be effective). When patients have multiple preoperative consultations with a nutritionist, it will be even more credible that the patient was advised of this risk.

Lastly, the risk of malnutrition is long-term and should not be overlooked, as the surgery itself becomes a memory. Even once the patient’s weight has reduced and stabilized such that he or she is no longer obese, it is important to continue to monitor for telltale signs of malnutrition, such as hair loss, fatigue and dehydration. While of course such surveillance is beneficial to the patient’s health, detailed counseling and thorough documentation may dissuade a patient from filing a lawsuit and, if one is filed, will make it easier to defend.

Anthony M. Sola, Esq., Partner, and Emma B. Glazer, Esq., Associate, are attorneys in the Medical Malpractice Defense Practice Group at Martin Clearwater & Bell LLP. For more information, visit