HAS guidelines define conditions for bariatric surgery

The French High Authority for Health (HAS) issued recommendations in 2009 for the surgical management of obesity in adults, which were updated on February 8, 2024. These guidelines specify that bariatric surgery can be considered for patients with a body mass index (BMI) of 40 kg/m² or higher, or a BMI between 35 and 40 kg/m² with severe health conditions like type 2 diabetes, hypertension, or severe asthma.

Preoperative requirements are strict

According to the guidelines, surgery should only be considered after a failure of medical, nutritional, and psychological treatments over 6 to 12 months. Patients must also undergo at least six months of multidisciplinary preoperative management and a multidisciplinary consultation meeting (RCP). They must be fully informed about the procedures, benefits, and risks, and must not have contraindications like severe psychiatric disorders or unresolved eating disorders.

Judges review adherence to guidelines

French courts have ruled that if a surgeon performs bariatric surgery without meeting the HAS guidelines, it may be considered negligent. For example, the Marseille administrative court of appeal found that surgery was not justified for a patient with a BMI below 40 and no severe comorbidities, as their condition was more related to an eating disorder. Similarly, the Paris court of appeal found a surgeon at fault for a patient with a BMI of 34.33 and no severe comorbidities, citing insufficient motivation as a reason for surgery.

Reoperations require specific justification

Judges also examine reoperations, requiring clear justification such as failure of the initial surgery or malfunction of the surgical setup. A new multidisciplinary preoperative evaluation is also required. Failure to follow the HAS-recommended multidisciplinary preoperative management, even if the BMI justifies the intervention, can lead to negligence claims. The Bourges court of appeal ruled that a sleeve gastrectomy was negligent for a patient with a BMI of 47 if there was no evidence of a well-conducted multidisciplinary treatment for 6 to 12 months and an RCP.

Non-compliance with guidelines is seen as a medical error

While the HAS recommendations are not legally binding, they are an essential reference for assessing the conformity of care to scientific standards. Non-compliance is generally considered a medical error. The Paris court of appeal noted that the 2009 recommendations could be applied to procedures performed in 2008 if they aligned with existing good medical practices.

Compensation for negligence is typically full

In cases of negligent surgical indication, a causal link between the fault and the damages must be established. Full compensation is typically awarded for damages resulting from the surgery, as the surgery should not have been performed, and complications would not have occurred otherwise. However, in some cases, compensation may be limited to a loss of opportunity to avoid damage if the fault was premature. In bariatric surgery, premature intervention due to inadequate preoperative management generally does not limit compensation to a loss of opportunity, as the prior process is essential for the medical justification of the surgery.

Courts emphasize proper medical justification

The Marseille administrative court of appeal explicitly stated that if the conditions for the intervention were not met, the surgery should not have been performed, and thus the surgeon must fully compensate the patient for all damages. Decisions limiting compensation to a loss of opportunity are rare and outdated. When complications occur after bariatric surgery, it is necessary to examine both the conditions under which the intervention was performed and whether the indication was medically justified based on the patient's health status, previous treatments, and the decision-making process.