Perhaps the most obvious cause of malpractice claims is the adverse event. As any bariatric surgeon knows not all adverse events can be avoided. Adverse events happen more frequently with complex surgical cases in sicker patients. Bariatric surgery for the most part is a very complex surgical case that usually is performed on sicker patients. With hundreds of thousands of these high risk surgical procedures being performed annually throughout the world there are literally thousands of adverse events that could generate litigation.

As these are known risks general surgeons increasingly have left the bariatric surgical population to specialist bariatric surgeons. In this high risk population bariatric surgeons are increasingly being asked to perform general surgical procedures such as gallbladder, colon, and hernia surgery on a patient population deemed too risky for the average general surgeon. This decreases the general surgeons risk but increases the potential risk for the bariatric surgeon as more and more of these high risk patients are concentrated in fewer practices. If the common rules regarding lawsuits and general surgeons are applied to bariatric practices, then there are approximately 1.6 lawsuits per 1000 cases. This means most bariatric surgeons will be subjected to some type of lawsuit every 3–4 years. These numbers may be startling to some, yet they are a decade old and no longer hold true. In fact, as the specialty of bariatric surgery has evolved and deaths and complications have decreased, malpractice rates have also fallen across the country.

Currently there are a wide variety of safe procedures offered around the world. Yet as surgeons push the boundaries of what is safe they have accepted more difficult patients and offering a wide array of not only primary procedures but revisional bariatric procedures as well. Many of these “non traditional” bariatric procedures present great difficulties in defining the standard of care. The “standard of care” is typically defined as the care that a reasonable bariatric surgeon would provide under similar circumstances. In many instances where adverse events occur during these “nontraditional” procedures there may not be another similar surgeon performing this surgery for hundreds of miles. This means that the standard of care for “nontraditional” surgery might reach some consensus nationwide but could be lacking in a given state, region, or country.

To combat these issues ASMBS and IFSO have developed consensus statements to help surgeons ascertain what a surgical norm might be on a given question. These can indeed be very useful yet it is impossible for a consensus statement to establish the “standard of care” in a rapidly changing field filled with surgeons of vastly different training and experience. Guidelines should always be used in light of a surgeon’s judgement and clinical experience.

Finding experts who understand the differences between state, national, or international definitions of standard of care can be difficult. It is even more difficult for juries and patients to understand. When confronted with these problems the surgeons involved in a lawsuit should make every effort to make sure their “expert” refrains from mentioning anecdotes from their own practice or present the standard of care of a teaching hospital the same as the standard of care of a community hospital. The ASMBS has tried to help lawyers (both plaintiff and defense) by publishing consensus guidelines for expert witnesses.

Perhaps no trend in bariatric surgery since 2004 has been more controversial than the various center of excellence programs set up not only in the USA but around the world. Entry into these centers of excellence programs varies by country, but each shares many common characteristics. The first of these characteristics is clinical decision support. This means that practice systems are created to avoid the errors that cause malpractice cases before they begin. A bariatric example of this would be each time a patient presents with nausea or vomiting the practice protocol dictates that thiamine is given to reduce the chance that Wernicke–Korsakoff syndrome happens.