Survey: Long Surgical Career Raises Likelihood of Lawsuit



SAN DIEGO – The most experienced bariatric surgeons are those who are most likely to be sued, judging by responses to a survey from more than 300 members of the American Society for Metabolic and Bariatric Surgery.

"There are no resources, national registries, or easily accessible databases to analyze bariatric-specific medical malpractice claims in the United States," Dr. Ramsey M. Dallal said at the annual meeting of the American Society for Metabolic and Bariatric Surgery. "Without the ability to analyze aggregate data, surgeons cannot easily study common causes of medical malpractice litigation and develop patient safety improvements. Nor do there exist easily accessible measures of trends in bariatric surgery litigation."

Dr. Ramsey Dallal

In an effort to obtain a snapshot of the liability landscape in bariatric surgery, Dr. Dallal and other members of the ASMBS Patient Safety Committee e-mailed a survey to 1,672 surgeon members of the ASMBS in July 2011. A total of 330 surgeons in 46 states responded, for a response rate of 20%. Their mean number of years in practice was 15, which represented 5,042 years of bariatric surgery–specific liability exposure. Most respondents (38%) practiced in a hospital or academic group, 26% in a single specialty group, 20% in solo practice, 13% in a multispecialty group, and 3% in other settings.

Nine respondents chose not to have malpractice insurance. Those who were insured reported a mean yearly cost of malpractice insurance of $59,200.

Nearly half of respondents (48%) reported having no malpractice insurance cases since their careers began, but the average number of lifetime cases reported by their counterparts was 1.5.

Of the 464 lawsuits reported by 156 surgeons, 54% were dropped or dismissed, 27% were settled out of court, and 19% went to trial or arbitration.

Of those cases that went to trial, 72% were found in favor of the surgeon-defendant. The mean lifetime amount paid in lawsuits was $250,000, including one settlement for $7,000,000. The total amount paid by the respondents was $70,871,998.

Using multivariate logistic regression analysis, the researchers determined that the probability of reporting at least one lawsuit independently increased with the number of years in practice (odds ratio, 1.03; P = .03) and among those who have performed more than 1,000 cases (OR, 8.5%; P = .01). "In essence, our most experienced surgeons are the ones being sued the most," said Dr. Dallal, chief of bariatric/minimally invasive surgery at Einstein Healthcare Network, Philadelphia.

The odds of having lost a malpractice case that resulted in monetary compensation independently increased with the number of years in practice (OR, 1.09; P less than .0005), and the number of lawsuits experienced (OR, 1.42; P = .02). "The type of practice and the lack of a bariatric surgeon expert witness did not independently predict a payout," Dr. Dallal said.

Nearly 7% of survey respondents reported that the primary expert witness in determining the standard of bariatric surgery care was not a bariatric surgeon. In such cases, the surgeon-defendant had an 11-fold increased risk of having a lawsuit (P = .018). However, the use of an expert witness who was not a bariatric surgeon was not associated with the chance of settlement or the case’s going to trial.

Dr. Dallal noted that many lawsuits are filed about 2 years after the alleged injury, and another 1-2 years may pass before resolution of that lawsuit occurs. "So, there is a built-in bias against surgeons who have been in practice longer," he said.

He noted that successful lawsuits that are based on patient harm "do occur and are devastating to all involved. Improving the patient safety culture is the mainstay of reducing liability risk."

Dr. Dallal said that he had no relevant financial conflicts to disclose.

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