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Herman Praszkier
Attorney At Law



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Six New Ways to Win
Emerging causes of action range from cell phones to addictive gambling

Margaret Cronin Fisk
The National Law Journal
11-08-2002

MEDICAL MALPRACTICE
The rise in lawsuits against doctors and hospitals over aftercare following bariatric or obesity surgery

The incidence of bariatric or obesity surgery in the United States has tripled in the past five years to more than 60,000 in 2001, notes plaintiffs' attorney Herman Praszkier.

This rise has been caused, he says, by the spike in the rate of obesity in the U.S., the increased sophistication of the techniques used in bariatric surgery and "the greater willingness by insurance companies to cover the procedures."

Insurance companies, he adds, "have found that it's cheaper to pay for the surgery" than to pay for the health costs associated with obesity and are paying premium rates for the procedures. As a result, doctors and hospitals are "jumping in," Praszkier reports, creating specialties in such procedures and conducting multiple surgeries per day.

But as the number of surgeries has increased, so have some serious problems.

"The surgery is technically complex, but people aren't dying from the procedure," Praszkier says. "The real trouble comes in post-operative care."

Too many surgeons and too many hospitals are not providing proper aftercare, he charges. Perforation of the stomach, for instance, is a common complication of gastric bypass or stomach lap band surgery. This leads to a leak of stomach contents, which, if not detected and treated in time, will kill the patient.

If doctors are inexperienced with this surgery, "when something goes wrong, the doctor will not pick up the signs." Some hospitals, he adds, are ill-equipped to provide aftercare. "In some cases, you need a CT scan to tell, but some hospitals don't have a CT scan big enough, so they don't do them."

Praszkier has settled several lawsuits involving patients who have died as a result of undetected leaks and untreated infections following the surgery; each of these has settled for policy limits. He is currently representing the estate of a 49-year-old black woman who underwent gastric bypass surgery and died because a perforation in the stomach was undetected. That lawsuit is in mediation.

These cases generally settle, Praszkier says. "If you pick the cases correctly, the doctors do not want to go to trial." Praszkier selects only actions brought after the death of the patient, or where the patient has been left with a lifelong disability. The disability or death, he adds, has to be connected completely to failure in aftercare. "A hole is not in and of itself negligence."

Only failure to recognize and treat the perforation is negligence, he says. Other side effects of the surgery, including drastic weight loss, are common, but not actionable. "That's your body reacting violently to the surgery."


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