Bariatric Surgery Malpractice

Bariatric surgery is a weight loss surgery that reduces what can go into the stomach in an attempt to facilitate extreme weight loss. However, it is not always practical. There may be drastic side effects of this surgical procedure that can render it unsuccessful. Sometimes those side effects are due to medical malpractice, while other times, they are simply a result of the surgery not being effective for the patient. To figure out if the problem is due to malpractice, the patient should speak to a medical malpractice attorney and share the details of the claim. From there, the experience of the attorney will give them an idea if there is a case to be had or if this is just an unfortunate situation. 

Understanding Bariatric Surgery

The point of all bariatric procedures is to facilitate losing a large amount of weight. These types of surgery are not done to help someone lose 10 pounds. Instead, they are meant to help someone lose 50 or 100 pounds, sometimes more. There are different surgical options to help a patient reach his or her weight loss goals. They include: 

  • Gastric Bypass: During a gastric bypass, the surgeon will create a smaller section near the top of the stomach, stapling off the bottom portion of the stomach and the top of the duodenum, as they will no longer be used to absorb nutrients from food. From there, the surgeon will connect the new stomach portion to the small intestine, effectively bypassing the areas of the stomach now stapled off. Now, the stomach will only hold approximately one ounce of food per meal, allowing the patient to lose weight. This is also called a roux-en-y gastric bypass procedure. 
  • Gastric Banding: During gastric banding, the surgeon will place a small adjustable band around the top portion of the stomach. There are no staples used in this procedure, but the effect is nearly identical. The band can be adjusted to allow food to move through the patient’s stomach more slowly or more rapidly, depending on what each patient needs. 
  • Sleeve Gastrectomy: During a sleeve gastrectomy, the surgeon removes approximately 80 percent of the stomach. The procedure leaves a long sleeve behind that resembles a banana. This is done when a patient has an increased risk of dying due to obesity-related problems, such as high blood pressure, type 2 diabetes, and obstructive sleep apnea. The body-mass index (BMI) of a patient must be no less than 30. The surgery is typically done when the patient’s BMI is higher than 40.
  • Biliopancreatic Diversion: One of the lesser-known procedures is called the biliopancreatic diversion. During this procedure, gastrectomy is performed. Instead of connecting the base of the stomach like usual, the gastric surgeon bypasses much of the intestines. This is an attempt to limit how many nutrients the body can get since this also limits how much fat the body can absorb.

Risks Associated With Bariatric Procedures

Just like with any surgery, surgical errors may happen. These procedures come with a chance of serious complications. Here are some of the risks associated with these types of procedures: 

  • An infection in any of the surgical areas or on the stomach or intestine
  • Excessive amounts of bleeding internally or externally 
  • Struggles with the general anesthesia 
  • Blood clots that move around the body, which can lead to an embolism 
  • Breathing trouble or lung problems 
  • Leaking stomach or intestinal tissues from the staples 
  • Obstruction of the stomach or intestinal tract that could go as far as into the bowels 
  • Herniated tissue in the surgical area 
  • GERD, or gastroesophageal reflux disorder 
  • Hypoglycemia, or having low blood sugar in the body 
  • Malnutrition from not getting enough nutrients out of the food the patient ate 
  • Vomiting because the stomach is having trouble accepting food 
  • In the rarest of cases, death 

Following any of these procedures, the patient may not have lost the weight he or she was hoping to. This could be due to the patient not following the regimen the bariatric surgeons recommended after the surgery. It could also be due to the type of food consumed after surgery. The patient must make the lifestyle changes the doctors and nutritionists recommend to lose the weight that was hoped for before the procedure. 

There are also instances of gastric bypass surgery or one of the other procedures not working for a patient. While these cases are rare, they may happen. Typically, when this happens, malpractice is to blame. It could be due to the surgeon not creating a small enough pouch in the stomach to effectively help a patient lose weight, or due to the surgeon not keeping the band tight enough around the stomach. It all depends on the type of procedure performed and how well the surgery and recovery went. 

How Medical Malpractice Could Stem From Gastric Bypass Surgery

Many different scenarios point to malpractice when it comes to having gastric bypass or one of the other procedures to help a patient lose weight. Sometimes determining if the case qualifies as malpractice or not is more complicated than trying the case in court. Here are some things that could lead to malpractice claims following bariatric surgery.  

  • Gastric bypass surgery is not for every patient out there. It has specific criteria set forth by the American Society for Metabolic and Bariatric Surgery that must be followed. If a physician did not make sure the patient met those criteria, malpractice could be the result. Some health conditions are too severe for a patient to undergo one of these procedures, so those patients do not qualify as good candidates. 
  • Leakage is another way that a malpractice lawsuit could be the result. It is up to the surgeon to ensure that the entire wound is closed at the end. There should be no way for acid or food to leak out from the cut surfaces within the body. If there is any leakage of digestive acids or food, it can lead to an infection that could become fatal. It is important to note that not every time leakage is found, is it the result of medical negligence. It could also be caused by the patient doing too much during recovery. However, if leakage is suspected but not correctly diagnosed, then it becomes a malpractice issue.
  • Cutting too much of one of the organs is another way for a medical malpractice case to begin. If there is not enough of the stomach or intestine to connect back up, this could result in the person not getting enough food or nutrients. This could lead to malnutrition, and if left untreated, it could lead to starvation and death. 
  • Developing additional problems following surgery could also point to malpractice. Some of the issues that could be a direct result of the operation include kidney stones, trouble breathing, blood clotting issues, clots that become embolisms, and excessive pain. 
  • Leaving surgical equipment behind is a definite problem that can result in a medical malpractice case. The cost of having the hardware removed and the recovery can be included in the damages that the case may seek. 

Proving Medical Malpractice in Court

When it comes to trying to prove that any medical mistake is malpractice, the court is going to expect the injured party to be able to show a few things. Here are the expectations that the court will have: 

  • The injured party must prove a working relationship. This means that the injured party must be able to show that he or she worked with the accused before the injury.
  • The injured party must be able to prove the type of care that was reasonable to expect at the time and under the circumstances that the patient was seen by the medical professional. This is called the standard of care that any medical professional has to provide. 
  • The injured party must prove that the care he or she received did not live up to that standard of care. It was something the doctor did that was wrong or something that the doctor neglected to do. This happened as a result of this substandard care. 
  • Finally, the injured party must be able to prove that there is a connection between the healthcare provider and the injury itself. The link that this provides is what allows the court to see that the professional was the cause of the injury. 

Evidence will need to be gathered for each step that can show the judge and the jury what happened. From there, the judge and jury can determine guilt, and if guilty is the verdict, they get to decide the compensation in the form of damages as well. 

When a personal injury occurs at the hands of a medical professional, there are three types of damages. However, one type of damages, punitive damages, are rarely awarded. For punitive damages, the injured party must be able to prove that the injury was intentional or that the accused was fraudulent in covering up the medical error. 

In most other cases, the injured party can ask for monetary damages and noneconomic damages. Financial losses include things like: 

  • Lost wages for the time of the accident and for the time of recovery if the injured party was unable to work
  • Future wages if the injured party will not be able to go back to the same job again in the future as a result of the injury
  • Medical bills for any additional procedures the injured party may have had or may need in the future
  • Prescription medication bills to cover any medicines the injured party will need to help with healing
  • Costs of medical equipment the injured party may need to aid in the recovery process
  • Traveling expenses to get back and forth from medical appointments or to see specialists

Noneconomic damages, on the other hand, cover things like: 

  • The pain or the suffering the injured party endured because of the injury
  • The cost of funeral expenses if a wrongful death claim is made against the accused
  • Money to cover a lower quality of life for the injured party
  • Loss of consortium, which is expenses for helping with everyday activities the injured party can no longer do, such as caring for the house, doing laundry, or taking care of young children
  • Loss of guidance if a parent died as a result of his or her injuries

Filing a Medical Malpractice Lawsuit

In the United States, people have the right to represent themselves in court. However, courts tend to take medical malpractice lawyers much more seriously than an inexperienced person. A lawyer is going to know what to say and how to say it to get the point across, without the emotionality that often comes from the injured party or his or her loved one

To know if malpractice is the best route to take, the injured party should discuss the case with a few different injury lawyers during a free consultation. If there appears to be a solid case, then the injured party can decide which attorney would be best to work with. Here are a few questions that can help the injured party determine which medical malpractice attorney to hire: 

  • How much experience does the individual attorney or the law firm have in these specific types of procedures? 
  • While looking at the preliminary evidence, does the attorney believe there is a case? 
  • How much longer does the injured party have before the statute of limitations is up? 
  • What types of evidence would the attorney need to get the process started? 
  • Will there be any medical panel looking over the case before it goes to court? 
  • How does the attorney handle the fees associated with the case, and which of those fees does the injured party need to produce before a lawsuit can be filed? 


While gastric bypass is growing in popularity, it is also a dangerous procedure that carries with it some potentially severe side effects. As many as one out of every 200 procedures will lead to the death of the patient within the first month after surgery. Plus, up to 3 percent of people who have these types of procedures done will deal with a serious complication within a short time after surgery, like leakage or bleeding internally. When looking at the long-term effects of gastric bypass, meaning those that are at least five years after the operation is complete, not a single person lost the weight and kept it all off. The lowest amount went to those who only gained back half of what they had lost, while many had gained it all back, sometimes more. 

The risks associated with these procedures may not make the slight benefit that people get out of the procedure worth it. However, when adding in the increased risks of malpractice, it is something people need to give some serious thought to before going ahead with it. For anyone that had the procedure done, but something was not quite right about the procedure, it may be time to speak with an attorney. The best way to know if the case qualifies as malpractice or not is by talking with someone who knows what the court will want to see. That way, both the injured party and his or her family can see if taking the accused to court would be worth the time and effort or not.