Issue: January 2019
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Heavy Liabilities: Obesity, Weight Control, and Treatment Risks

Introduction

Obesity and Weight-Control Risks

Obesity is a national epidemic, which causes higher medical costs and a lower quality of life. About four million deaths are attributable to excess body weight annually in the U.S. More than 72 million U.S. adults are obese and persons who are obese have medical costs that are $1,429 higher than those of persons of normal weight.

 

Obesity has been linked to several types of cancers and has resulted in overweight-related conditions such as diabetes, hypertension, sleep apnea, cancer, stroke, heart disease, and other conditions.

 

Attorneys, physicians, insurers, employers, risk managers, diet drug manufacturers, and other potential parties to litigation need to understand the types of litigation issues that may arise in connection with the treatment of obesity or other weight-related conditions.


The Perspectives: Improve Your Strategy

Attorneys:

What requirements must be met to bring a diet drug claim as a class action? And, what is a potential strategy for the attorney to employ?

Physicians:

How can a physician defend against an action for revocation or suspension of the physician’s medical license based on allegations related to the prescription of diet drugs? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or the patient’s claim was barred as untimely? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be liable for the costs of treating a worker’s obesity or other weight-related condition? And, what is a potential strategy for the employer to use?

Risk Managers:

Can a risk manager prevent liability or mitigate damages for potential violations of the Americans with Disabilities Act in connection with an employee’s obesity or other weight-related disability? And, what is a potential strategy for the risk manager to use? 


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a health provider’s malpractice or negligence liability for diagnosing or treating an overweight or obese patient.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving the treatment of overweight or obese patients.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving treatment of overweight or obese patients.

Employers:

Presented is a checklist of items an employer must consider when determining if the employee’s injury related to the employee’s excessive weight is compensable.

Risk Managers:

Use this checklist to determine if the risk manager has identified and implemented all appropriate policies, practices, and procedures to avoid liability or mitigate damages for malpractice or negligence involving treatment of overweight or obese patients and whether all affected parties complied with these policies, practices, and procedures.

Expert Analysis

How Can Insurance Benefits for Bariatric Surgery Be Obtained After a Denial?

Walter Lindstrom, JD

What Are the Safety Concerns with Bariatric Surgery?

Samer G. Mattar, MD, FACS, FASMBS; Eric J. DeMaria, MD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving overweight patients, obesity, and weight control?



Medical Examples

Obesity and Weight Control Treatments

This section provides detailed medical information on overweight or obese patients and weight control including the causes and risks of excess weight, measuring overweightness and obesity, related health conditions, weight control interventions and treatments, and weight loss and treatment complications. Also discussed is the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on obesity and weight control.


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Heavy Liabilities: Obesity, Weight Control, and Treatment Risks

Table of Contents
Introduction

Expert Analysis
   Walter Lindstrom, JD
   Samer G. Mattar, MD, FACS, FASMBS; Eric J. DeMaria, MD

The Perspectives: Improve Your Strategy
   Attorneys Perspective
   Physicians and Health Providers Perspective
   Insurers Perspective
   Employers Perspective
   Risk Managers Perspective

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Risk Manager Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Obesity and Weight Control Treatments

Law and Medicine Resources