New England Patriots Player sues after Gastric Bypass

Stomach-Reduction Surgery Lawsuits Growing New Medical Procedures Bring Challenges For Lawyers By Nora Lockwood Tooher Former New England Patriots offensive coordinator Charlie Weis will always be remembered as one of the "geniuses" who brought the team three Super Bowl victories in the last four years. But he also came close to being mourned by the team. After winning the Super Bowl in 2002, Weis underwent gastric bypass surgery -- commonly referred to as "stomach stapling" -- believing that his weight compromised his chances of landing a head coach job. While Weis got the job, he nearly lost his life in the process. After the surgery, the now-head football coach for the University of Notre Dame slipped into a coma, suffered excessive bleeding and other complications, and had "last rites" administered twice before he ultimately recovered. Weis filed suit against the five doctors at Massachusetts General Hospital who performed the surgery, and, last December, a medical tribunal allowed the suit to go forward. Although firm numbers are hard to come by, several medical-malpractice attorneys and physicians told Lawyers Weekly that lawsuits like the one brought by Weis are becoming more common as the surgery gains popularity. Boston attorney Eric J. Parker, who currently represents four plaintiffs in bariatric surgery-related matters, says that the statistics he's seen demonstrate "a dramatic rise in the number of these procedures being performed." The trial lawyer points to a study put out in August 2004 by the Massachusetts Department of Public Health, in collaboration with the Betsy Lehman Center for Patient Safety and Medical Error Reduction, which notes that, in Massachusetts alone, 2,700 gastric bypass operations were carried out in 2003 compared with fewer than 150 in 1996. But some suggest that there may be reasons other than the increased number of surgeries to explain the corresponding increase in medical-malpractice litigation, including the fact that patients who undergo the surgery are severely obese, high-risk patients who often suffer complications after the surgery. While lawyers say that, in some respects, these gastric bypass cases are similar to any complex med-mal case, it is clear that they also provide their own unique set of challenges for the attorneys handling them. Procedures Increasing Gastric bypass surgery is intended for morbidly obese patients who are at least 100 pounds overweight and whose health is at risk because of the strain of the heavy loads they carry. The surgery cuts off all but a thumb-sized portion of the stomach. Patients shed about one pound a day until they've lost an average of 100 pounds. "The population, unfortunately, is becoming more obese. I suspect that these types of surgeries will increase until there's some magic, medicinal pill or gene therapy that can assist with this," says Scott Buchholz, a malpractice defense lawyer from San Diego. In Massachusetts, according to the figures in the DPH report, the surgeries are increasing -- a trend that is reflected nationwide. An estimated 140,600 Americans underwent bariatric surgery in 2004 -- more than double the number in 2002, according to the American Society for Bariatric Surgery in Gainesville, Fla. This year, the society expects about 170,000 stomach-reducing procedures to be performed. "There has been a marked increase in the number of procedures," says Dr. Harvey Sugerman, the society's president. "The reason for this primarily is that the evidence is overwhelming that the surgery leads to a marked improvement in health in terms of diseases that are responsive to weight loss." While that may be true for some, lawyers who have been handling these complex medical-malpractice cases say that the surgeries also come with significant risks -- risks that Charlie Weis experienced first hand. Coach Near Death In part, the popularity of the surgery has been fueled by celebrities such as "Today" show weatherman Al Roker and singer Carnie Wilson, who praise gastric bypass surgery for helping them shed life-threatening pounds and improve their health. But it is Weis' celebrity closer to home that illustrates the potential risks involved with gastric bypass surgeries and why malpractice suits may be on the rise. Those who have followed his career are aware that the former Patriots coach has always had a weight problem. According to published reports, 48-year-old Weis weighed more than 300 pounds by the time the Patriots won the Super Bowl in February 2002. He had reportedly tried Weigh****chers, Slim Fast, the Atkins Diet, the Cabbage Soup diet and a number of other weight-loss schemes before opting for stomach-stapling. His father had died at 56 from a weight-related heart attack, and Weis has said he had the surgery mainly for health reasons. But he has also conceded that he thought looking leaner could help him land a head-coaching job. After the surgery in June 2002, Weis suffered excessive internal bleeding that nearly killed him, he was left with a temporary loss of feeling in his legs, and he was forced to get around in a motorized cart for months. Luckily, he recovered and missed just three days of training camp. A physician hired by his attorney told a medical-malpractice tribunal in Boston that Weis suffered excessive bleeding, septic shock, respiratory distress and ongoing leg problems as a result of poor care at Massachusetts General Hospital. While Weis' attorney, Michael Mone of Boston, would not comment on the case, Boston lawyer William J. Dailey Jr., who is representing the doctors, says the surgical team was experienced in the procedure and that the leakage that developed after Weis' surgery is a common complication of gastric bypass surgery. It turns out that the football coach is apparently not alone in his experience; in fact, he may be lucky to have recovered. In a January 2005 Patient Care Assessment Update, the Massachusetts Board of Registration in Medicine noted that it received 16 reports of bariatric surgery-related deaths between March 1, 2003 and Oct. 31, 2004. Dailey says that "most good doctors will tell you that the risk of mortality is between one in 100 and one in 200. That's a very significant mortality rate." But the defense lawyer says some patients fail to acknowledge the risks involved in the surgery. "Not only are the surgeons involved, but almost all of these major medical centers have a team of four to six -- usually a weight center, nutritionist, psychologist and internist -- involved with the preparation and actual performance of the surgery," Dailey says. "And despite the fact that the informed consent procedures are so elaborate, there does not appear to be an appreciation on the part of the patient for the risks that are involved. And these are very real and very significant risks." High-Risk Patients While these cases may be relatively new, some lawyers say in many ways they resemble any other case involving a major medical procedure. "We're finding errors in judgment that are not necessarily unique to bariatric surgery," says Parker, "like in choice of surgical materials, choice of procedures [and] the quality of post-operative follow-up." Those elements, he says, "are associated with many other high-risk procedures." Parker says that at the end of the day, when a verdict is reached, the case will still boil down to what transpired in the operating room and what took place in the post-operative period. "A bariatric procedure that has gone awry is a wrongful-death case, not a bariatric wrongful-death case," Parker says. He adds that proving the legal elements of a negligent bariatric case has mu*****ommon with the way liability is handled in other medical-malpractice cases. While bariatric surgery, performed laparoscopically, is relatively new, Parker says it's not so new that there aren't competent surgical experts available to testify as to the quality of the medical care rendered to the patient. But there is one main element found in bariatric surgery cases that makes handling these suits even more challenging: Patients are often morbidly obese. "The patient population that you're dealing with in bariatric cases is unquestionably a high-risk group," explains Parker. "Often they have pre-existing medical conditions such as diabetes and other conditions that place them at even higher risk." He adds: "Whenever you have a patient population at high risk, the success of the plaintiff's case is threatened, as it should be." Peter Spataro, a malpractice defense attorney from St. Louis, agrees. "It's a risky procedure involving a risky population," Spataro says. "A lot of them don't recover very well. They get infections. They get leaks. A lot of them die." Buchholz, the San Diego lawyer, adds that "although they're large people, they're very difficult and fragile, so when you're doing this re-plumbing if there's a slight leak or the patient's legs aren't elevated, you can run the risk of significant complications." According to Dailey, "The fact that these co-morbidities exist add to the complication rates that are present." New Challenges Both plaintiffs' and defense verdicts illustrate that there are other significant hurdles facing attorneys who handle gastric bypass surgery cases. "One of the most challenging aspects of these cases is the fact that the surgery is still evolving," says Parker, referencing the laparoscopically performed procedure currently favored by doctors, compared to the open "Roux-en-Y" procedure that has been performed for years. He says that "whenever you introduce a new procedure, lawyers -- like doctors -- learn as they go." Parker notes that the procedure has also given rise to "common themes" that form the basis of many current bariatric surgery lawsuits. "We're seeing a certain amount of blame-shifting between physicians and the manufacturers of surgical equipment, like [those who make] stomach staplers and other medical devises," the Boston med-mal lawyer says. One other challenge for plaintiffs' attorneys may have to be addressed in the courtroom: bias against obese plaintiffs. "My sense is there may be something that should be communicated to the jury, in an appropriate manner, to address and hopefully overcome potential jury bias against the morbidly obese," Parker says. "You can't walk into a courtroom with the assumption that the jury is biased, but you have to go in knowing that such bias may exist and the legal practitioner must be prepared to address it." If there is a perceived obesity bias, he says that "you must communicate to the jury the magnitude of what the plaintiff has been battling, and that such obesity is not necessarily something the plaintiff could be expected to control." A View From The Hospital Even the logistics of handling a severely obese patient can get complicated. To determine if a patient has a leak following gastric bypass surgery, the person has to undergo a CT scan. Most CT scanners can accommodate someone who weighs up to 400 pounds. "Sometimes these patients are so large they can't fit in the CT scanner," says Scott Buchholz, a med-mal defense lawyer from San Diego. The patients' weight also raises the risk of back injuries for the hospital personnel caring for them. "The bottom line is the hospitals and the doctors need to make the capital and human resource investments in these procedures," Buchholz says. Experts say that the more experience a doctor has doing gastric bypass operations, the less likelihood of complications. Unfortunately, demand and profitability have drawn many less-experienced surgeons into the field. "Any procedure that's effective becomes attractive to both surgeons and hospitals," says Dr. Harvey Sugerman, president of the American Society for Bariatric Surgery. "It's clearly an effective procedure, so therefore everyone wants to get into it. The issue is getting into it appropriately and safely." Because of increased litigation, as well as issues about patient care, Sugerman says his organization is supporting certification for hospitals and doctors that perform the surgery. The certification process is slated to start in June. Despite the legal and medical controversy, Sugerman praises advances in bariatric surgery for saving many lives. "I can tell you this was the most gratifying thing I ever did in my entire life," the retired surgeon says. "It's a wonderful operation that just provides incredible improvements in health and quality of life." Looking ahead, Buchholz says that Medicare is moving toward providing coverage for gastric bypass surgery. He predicts that once Medicare coverage becomes available, the number of procedures will surge -- along with the number of lawsuits. "If Medicare gets involved and starts covering," the lawyer remarks, "you're going to get more of these surgeries and more of these cases."