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Is Failure to Treat or Refer Obesity Medical Malpractice? Craig Primack MD

This is a talk that was given at Obesity Week in Nashville in November 2018.

I practiced it the week prior at Scottsdale Weight Loss Center for a group of interested patients.

Craig Primack MD, FACP, FAAP, FOMA 480-366-4400 www.


Craig Primack:                     This is a talk that I’m actually going to give a week from yesterday, Tuesday at a large conference called Obesity Week. Obesity Week is a combination of two big societies that treat weight in our society. One is called the Obesity Society. They’re actually the research arm. Most of the members on that do research on weight and all the things with that, and then the surgeons, the ones who do bariatric surgery. They get together and they do this big conference. And myself and a bunch of other people who are associated with the Obesity Medicine Association, we get together we do a little symposium.

This is a talk that’s come about for a long time. I’ve been wanting to put this talk together for at least six months. When I had the opportunity, I started to do it. The title of the talk is Failure To Treat or Refer Obesity or the treatment of obesity Malpractice. When you say that to physicians, what happens? A deer in the headlights because they don’t like that word malpractice. Part of this talk is to get people to listen.

That’s why it says the word malpractice many times. Let’s get started. Whenever you give a medical talk, you give a few disclosure. So that’s my disclosure slide. And then my disclaimer slide. I’m not an attorney. We’re going to talk about malpractice from a physician. I’ve done some research. It was interesting when I called, we have a malpractice carrier here in Arizona. I called them to say, hey, I’m going to do this talk about treating weights and it could be malpractice. Can you lead me anywhere? And they said, “Oh, no.” We will not touch that with a 10 foot pole. I said, “Okay.” They said, there is a few things they could which I didn’t bring in, because I don’t think it was important enough. But it was interesting.

I called someone I know who was one of my patients here, who actually is a malpractice attorney. Can he help? Because this is actually not something that’s ever been done, no one could give anything there. We have to start out by saying, what’s the problem? Is that goo enough? Is that better. So we have a problem. 90 million people in our country have obesity. They need to be treated. What’s happening? Nothing. I’m sorry.

Speaker 2:                              They’re going to McDonalds.

Craig Primack:                     Yes. Some are. Anyone talk to their doctor about their weight before they came here? I see. Yes. Were they supportive about it? Did they want to talk about it? Some do. I’ve heard many times they want to talk about and they use pretty offensive language when they do it. Part of it is they don’t know how to talk about it. So, it is a problem. If they don’t treat your weight, if they don’t talk about your way, if they don’t do something about it is that malpractice? If you have cancer, and your doctor doesn’t say, “Oh, my gosh, you have a tumor. Something’s going to happen if you don’t do something soon.” Is that malpractice? That’s obvious, right? If your blood pressure is 200 over 100, and your doctor doesn’t do something about your blood pressure, is that malpractice?

We have to ask you in medicine what is malpractice? We went to our friend Wikipedia. Wikipedia says it’s a legal definition, obviously, that it’s a cause of action that occurs when a medical or health professional deviates from standards of care in their profession, causing injury to a patient. So, they’re not doing what they should be doing’. This part makes sense. I think that’s what we all would say if that’s malpractice, we may not use the legal ease for it.

When you start to look at medical malpractice law, it’s based on the laws of negligence, failing to do something. Failing to diagnose, failing to treat in a proper speed. It’s a general rule, it follows when someone doesn’t show a fair, a reasonable and competent degree of skill when treating your patients. We go to school for four years minimum for medical school. After that, there’s residency training. It lasts a minimum of three years, and depending on your specialty, it lasts seven or more years. We come across weight problems all the time.

Among these acts or omissions, they may support a malpractice claim or the failure to. This is where we’re going to get to the specifics. This is really what the talk is. The first one is, to properly diagnose this disease. We have to ask first, do doctors diagnose it? There’s the thing called the action study. The action study came out last year, it was really a questionnaire to thousands of physicians, nurse practitioners, medical providers of all types, and they’re opinions on what they do with weight.

55% of people, so, 100% question. So it was actually was providers and patients. Of 100% that were questioned, 55% they are actually diagnosed with obesity. So, 45% not at all.

Speaker 3:                              How do you think they put on this weight?

Craig Primack:                     That’s a great question. Obesity, by definition, is by BMI. BMI of 30 or greater in our overall society is how we diagnose it as a general population. It is not the best way to diagnose obesity. Probably the best way is using body fat itself. A scale like we use here every single time has body fat percentage. Any woman over 32%, or a man over 25% body fat percent is obesity also. But in your normal clinic, when you don’t have fancy scales, when you just have two measures; your height and your weight BMI is really probably the best way to do it.

We all know, if you look at old videos, I see Arnold Schwarzenegger back in the ’70 in Conan the Barbarian, his BMI 33 or 34. I forget the actual number. But I think about 1% body fat. Now, he may have been using steroids. And then we get also people who I see every day in the clinic here, BMI could be 23.5, 24.5. That would officially be in the normal range, but their body fat over 32%.

So, they asked these now health care providers, do you diagnose obesity. 28% said, always. Whenever someone comes in, I always … Nowadays, with electronic medical records, if you have one, it tells you right away and people often get pop ups that BMI is 30 or more. 41% say most of the time. Not so great. 31%., it’s interesting, they didn’t say always, they didn’t say most of the time, they reported providing verbal diagnosis to their patients. So, they talked about it, but they didn’t put it in the chart. What do we learn in medical school?

Speaker 4:                              Document everything.

Craig Primack:                     So, they’re not. That was number one, properly diagnosing. Which we see they’re not. Number two is the failure to provide appropriate treatment for a medical condition. Primary care just comes from the British Medical Journal, a big publication. It says the job of a primary care provider is to be the first point of entry, the gate keeper into your health care. Also, they deliver continuous whole person care. Everybody system and person centered, which is all the other things that go along with it. The co-morbidities, the social circumstances, beliefs, values, the [inaudible 00:08:16] were all health problems in all patients at all times. They’re the ones that get us going into it.

We know the basic is, if your primary doctor knows what to do, they treat you. And when they don’t know what to do they refer you, and that’s not happening. Here, healthcare providers actually do know that weight is a problem. That’s the first thing is do we know it’s a problem? Yeah, 93% of them believe it’s a problem. But again, they’re not doing anything about it. So they know there’s treatment? That’s an interesting thing. We know there’s treatment because we all come here. But someone who’s not in Scottsdale, who doesn’t come here, do they know there’s treatment? There’s been drugs that have come out. Some of you are on some of them Contrave, Saxenda and drugs like that. Since 2012, there’s been the newer ones. Phentermine goes back to the 1950s.

Novo Nordisk, the one that makes Saxenda or Liraglutide has treated or trained 20,000 healthcare providers since 2015 on how to use their drug. There’s definitely a portion of healthcare providers who at least know there’s some kind of treatment out there. They may not know how to use it, but at least they know it exists. Then we go to Contrave. Novo Nordisk is the one who makes the other. Contrave, I don’t give them name because it’s actually being owned by three different companies since its come out. It’s been passed around a little bit.

They’ve done live education programs in 44,000 attendees. They’ve done digital education with videos that they bring into people’s clinics. The rep brings in their iPad, and they show videos over 8000 times. And they have a specific website. If you put it in, it’ll say, are you a patient or are you a healthcare provider? It sends you down a different path. So, 330,000 visitors have been there. I don’t know if any of you guys remember seeing commercials when Contrave was popular? There was a bunch of people and they were in the shape of a brain. They’d go, ice cream. they did all those weird things. They spent millions of dollars promoting the drug. So, yes, I think the answer is people do know, and physicians know that there is treatment.

I’d go back to the same thing about cancer, I don’t know how to do chemotherapy. I’m not going to tell you I know how to do chemotherapy. But there are people that do know how to do chemotherapy, and so we send to them.

I guess the next question I had is, well, should they treat weight? We know there’s a treatment, should we? This is coming from the Canadian family physician, this is an early one. This is 2007, before the drugs came out now. But the belief back then was a quarter of all physicians think that they’re not at all only slightly competent for treating weight. That doesn’t surprise me, does it surprise you?

Speaker 2:                              No.

Craig Primack:                     No. Not only that, 20% are not at all comfortable basically in treating it. And 72% of physicians think they’re not well prepared at all for treating it. I get that. That was 2007. Shouldn’t they just refer just like everything else. Obesity care, and maybe one of the reasons they’re not is because they said it’s time consuming, it takes time. Absolutely, everything takes time. It has high recidivism, which means it comes back. Well, yes. Anybody on blood pressure medicine? One, two, three, absolutely. Four, absolutely. So we know if you’re taking blood pressure medicine, and tomorrow you stop your blood pressure medicine, what happens? It comes right back up. Sometimes you have to combine medicines two and three and four. Were those studied together all four medicines at one time? Absolutely not. But we do it every single day. And everyone in the world does it.

To hear when we combine medications, what did they say? Oh, what’s the problem? I had someone just yesterday or today who was on Saxenda, And they looked at their chart, and she was also on Phentermine. So, they denied the Saxenda. You guys know, it’s hard to get Saxenda in the first place. And then the last piece is that there’s little financial motivation. When doctors use the code for obesity, it doesn’t get paid. But when you look at the rules, we know the Hippocratic oath, do no harm. If you look at fiduciary law, it really says that’s not the issue. The issue has to go in the favor of patients. We have to do what’s right.

All the time we take phone calls that you don’t get paid for. I’ve met with families when a loved one has died that you don’t get paid for it. That’s not part of it, it’s, you do it because it’s right, and you do it because you care about people.

We talked about the failure to properly diagnose. We talked about the failure to provide appropriate treatment or appropriate referral on that point. So, the third one is that you don’t do it in a timely manner. The first time your doctor talks about weight, do they talk about it again? So, we do have data on that again, from the action study. Going back, there was 100% of people have weight problems, 71% of them actually did talk with their provider about it. 55% as I said in that early slide were diagnosed with it. Only 24% of people, one out of every four people had a follow up appointment. Go back to the blood pressure analogy. Your blood pressure is 200 over 100. Your doctor says, “Okay, you got to take whatever medicine it is.” And they don’t ask you to come back and see them. It doesn’t make sense to me. But that’s what’s happening.

Standard of care, when you go back to what some people say is the reason it isn’t malpractices. The standard of care says, we don’t really do much about it. We say ELMM. What is ELMM? Eat less move more? Does that work? Actually, interesting, at this same conference three or four years ago, I gave a talk that basically says exercise and diet don’t work. They don’t think by themselves, if you go out and do it, we all know it didn’t work, which is why we’re all here. By themselves they don’t. When you put it all together is the big piece. Obviously, there’s more to it than just those. I gave that talk before.

So, a standard of care is a treatment guideline. In general it can be specific. It can tell you exactly what you do, or says do these kind of things. Consider blood pressure medicine it may not tell you which kind, in what order to do it. It specifies appropriate treatment is based on evidence. So, scientific evidence and collaboration between medical and their psychological professionals involved in the treatment of this condition. There’s three parts. All my things have a bunch of parts.

It’s diagnostic and treatment process that a clinician should follow for a certain diagnosis. If you have treatment recommendations, the USPTF is probably like a couple of big things that give doctors recommendations. USPTF is the US Preventive Services Task Force. They make all kinds of preventative medicine recommendations. Just in September was their update. It’s only two months ago, but their update says doctors should offer or refer adults with obesity. Here it talk about our BMI, 30 or greater, to intensive multi-component behavioral interventions. That’s a place with classes and counseling and so forth. It’s an evidence grade B. Which means this service is recommended.

To actually go back to “Obamacare” when it first came out, they said they would pay for anything that was a B service or better. This is how many years we’ve been in it, and they still do not pay for weight services or anything across the board, especially in Arizona. California actually is slightly better. Doctors follow recommendations by the USPTF. If you Google weight and such, you’re going to get a statement by them. Or if you do blood pressure, or if you do almost anything USPTF has something to say about it. Breast cancer screening. So, it’s all preventative things. Cholesterol screening and all those kind of things they make recommendations.

Number two, the level of which an ordinary prudent professional with the same training and experience, in good standing, in the same or similar community would practice under the same circumstances. There goes a saying that doctors actually are not getting trained in medical school. How many hours do you think, if I remember correctly, we had in training on how to treat weight back in medical school. Between four and eight, if I remember correctly. That’s only because I was at Loyola in Chicago. One of the still best people in the country that treat weight is the guy that I have now colleagues with, but he was an instructor who came from Northwestern over to Loyola and gave us these talks way back when.

An average standard actually doesn’t apply. So, what does the average person do isn’t the case because that means half will do it and half won’t do it. It’s more, what will be expert do. When they go to court for these things, they say, we need an expert. Is there an expert in this field? An expert witness actually has a legal term. The federal rule of evidence said, this expert must be qualified on the topic of what they’re talking about, and that they may have specialized education, training or practical experience in subject matter relating to the case. So, weight. And there’s a lot of things; diabetes, cancer, sexual abuse, that have these guidelines and standards of care.

When you look at public health, the US Surgeon General, we’ve all heard of this Surgeon General, the director of the CDC, another place that we all know. And the Institute of Medicine, another of those big bodies that doctors look at, said way back in 2007, they needed immediate action for the treatment of childhood obesity. But now we’re saying, “Okay, we didn’t know this. We know weight causes increase in cardiovascular disease, diabetes, musculoskeletal problems, and a host of others. [inaudible 00:19:02] now to describe over 200 conditions are related to it. I think it’s 237 if I had it correct.

50% of adolescence go on to be adults that have weight problems. So, we need to start early. What is the ABOM? We’re looking for specialists; American Board of Obesity Medicine serves the public in the field of medicine by training and maintaining standards for assessment and credentialing positions. They certify specialized knowledge in the practice of obesity medicine and distinguish a physician as having achieved competency in obesity care.

In 2012, this society was, or this governing body was established. 587 people who first took the board exam. We’re now in 2018, we have 2656. Scottsdale weight loss has five of them. I did the math, I think it’s 0.01% of all the people that are certified. Besides Kaiser in California, we are the one location with the most people that are board certified. So, we do have specialists.

I think the last big overriding pieces, we know all these things. It’s not being done, we know it’s a problem. Is just care futile? Should we just not do it? We know something called the look ahead study. This is one of the best long term studies. It was done on people with diabetes. It was actually looking at heart disease specifically. People interestingly love to use a lot of meal replacements. Use two or three meal replacements a day plus food for about 10 years, and lost somewhere between 8% and 10% of their weight and kept it off. The goal was to help their diabetes in their heart.

But what we found is their sleep apnea got better. Urinary incontinence got better. Physical mobility gets better, chronic kidney disease worsening gets better, depression gets better, and health related quality of life. So, is your health changing or lessening your quality of life? This was just rated by your doctor. All these things. So yes, and all the things that we know, obviously. But this is big study saying, yes, it works.

Let’s talk about futility. I will apologize if anyone has a family member or friend or someone who has suffered from pancreatic cancer. But I wanted to make a drastic point here. 55,000 people get diagnosed each year with pancreatic cancer. Each year, 44,000 of them die. By five years, only 8.5% are still living. What do we spend on their care? Patients who have metastatic disease. Most of the time, by the time you’ve diagnosed pancreatic cancer, it’s not just in the pancreas, its spread to other areas. So, probably every single person spending at least just under $50,000 on their care. Most of them also have surgery because we’re trying to extend their lives. So, we’re spending about $134,000 on those people.

55,000 people are being diagnosed somewhere between $49,000 and $134,000, we’re spending somewhere between $2.7 billion and $7.4 billion on care.

Speaker 2:                              Is that US only?

Craig Primack:                     That is US only, correct.

Speaker 3:                              That’s 2007.

Craig Primack:                     Yes, I think so. And there’s more people. The statistics of how many people were in 2018, but the costs were in the past, it’s all I could find, or the most recent data that I could find and it’s $7.4 billion, 8.5% and 4712 people getting benefit from that. How much could we do if our insurance is really covered? Covered this? We can do a lot. The big question then is, failure to treat or refer malpractice? Yes?

Craig Primack:                     No, maybe. The answer is we don’t know. But I want people to start to think about it. It’s a legal action that occurs when you defer or don’t take care of people, to properly diagnose them, to properly treat them or time when you treat them. My recommendation in the year 2018 is that every provider needs to either treat weight, which is perfectly fine. You need to take the knowledge that they know. Whether it’s a diet and they send you to a standardized diet program, or they have written out diets, and potentially medications and counseling then treat you. But if it doesn’t work, like every other disease, we send you to these specialists. Questions.

Speaker 2:                              I didn’t quite understand that link to pancreatic cancer.

Craig Primack:                     I was trying to just make a link to a disease that is futile. Many people say treating weight doesn’t work. So, why should we spend time on it? Why should we do it? It’s lost cause. I wanted to say that we spend a lot of money on call it, not so great outcomes. When we know that there are good outcomes, when we do it, we should be spending money there.

Speaker 2:                              Got you. What were the outcomes of the study, the action-

Craig Primack:                     The action study?

Speaker 2:                              The study, the long-term study, the 10 year-

Craig Primack:                     The look ahead study.

Speaker 2:                              The look ahead study.

Craig Primack:                     Because medical care is so good, they were looking initially at heart disease. They want to see if there’s less heart attacks versus more heart attacks. Because cholesterol therapy is so good, because blood pressure therapy is so good, because diabetes care is so good, it wasn’t enough weight loss we think to change the amount of heart attacks between the two groups. But we did see the ones that kept their weight off have all those other benefits that weren’t directly with heart. They weren’t worse heart, but they weren’t better in heart. Which they did keep their weight off and they were able to do it in a controlled fashion.

It is one of the longest studies that we have that shows good weight loss over periods of time in a two group study I should say. There was one that just got what we call standard medical care, which is not much of anything for diabetes care. That they were getting insulin, they were getting those kind of messages and nothing else.

Speaker 4:                              But you prevent diabetes, you can lower your cholesterol and all that if you don’t have diabetes or heart disease then you lose weight, can you prevent all that?

Craig Primack:                     Absolutely. The question is, as you lose weight, do you fix those things? Absolutely. We think at 5% weight loss we start to improve blood pressure and blood sugar is starting to get better. At 10% weight loss, if you have pre-diabetes, you probably have normal now. If you have diabetes, you are very well controlled and blood pressure, if you’re on several medicines, you’re probably on one or none at that point. 15% cholesterol kicks into the LDL cholesterol. The triglycerides probably came down somewhere between 5% and 10%.

Speaker 6:                              If the insurance says 5%, why don’t they cover some of these-

Craig Primack:                     We don’t have a great answer for that truthfully. My society we have 2300 members. Plus the other society has gotten together and we all pay for a lobbyist in Congress. There’s something called the Treat and Reduce Obesity Act, TROA is a bill that has gone through Congress for what’s called three Congresses. A Congress lasts for two years. If the bill nothing happens to it, it dies and you have to reintroduce it. It was introduced six years ago, it died. Four years ago it died. It’s now in its third two year cycle. I don’t know exactly where we are. We have over 150 roughly people in the House of Representatives, national that have signed onto the bill. They’re in support of it. It’s not a 50% yet, but we’re a third almost of the number. Before it ever goes to a vote, what has to happen is the Congressional Budget Office has to score a bill.

Scoring a bill basically says they sit down and they say, in our best estimate, it’s going to cost the government over 10 years this amount of money. At this point, they have never brought it for scoring. People are saying we don’t know when they ever will.

Speaker 7:                              But wouldn’t that help us to get-

Craig Primack:                     Absolutely. The gist of the bill is we’ll get Medicare to pay for weight management services. Anytime Medicare picks up something, all the other insurances fall in. Blue Cross, Blue Shield, United, all of it becomes a standard thing. If they don’t cover something, the others don’t. They’re the ones that lead the way in this.

Speaker 2:                              It could end up being very expensive because of the population. Your numbers alone, the US population has a significant percentage of obesity.

Craig Primack:                     We have to look at it. I think going to your question also is, we’re already spending that money on diabetes care, on blood pressure care, on cancer care, because five to eight cancers are weight related. So, all of those things we’re already spending the money. Why spend the money on the end result? Why don’t we spend it on the prevention and treatment early on? So, we are spending the money. We’re spending billions and billions on it.

Speaker 2:                              Great, because that’s the way our society is set up.

Craig Primack:                     It is. Unfortunately, the insurance companies still make billions.

Speaker 5:                              And the drug companies-

Craig Primack:                     And the drug companies selling the drugs, absolutely.

Speaker 5:                              Because you have someone lobbying in the other direction saying we can’t have that.

Craig Primack:                     Well, the drug companies truly want their drugs to be covered, because they are helping. All the drugs we use here do help with weight, and almost none of them recovered.

Speaker 5:                              Saying the high blood pressure, the-

Craig Primack:                     Those, yeah. Absolutely.

Speaker 5:                              They don’t want those to stop selling so well.

Craig Primack:                     It was interesting when cholesterol medicines came out, all the cardiologists thought, oh, there’s going to be no more heart disease. The cholesterol drugs are so good. That didn’t happen. Although yes, I think it’s an argument. I’m not sure that that’s the greatest of all ideas. We don’t know yet.

Speaker 8:                              Is there a standard definition in the medical world AMA on what a successful plan of treatment is?

Craig Primack:                     A great question. If you didn’t hear, so, is there a standard of what is successful? We start to say, we want to make people healthier, and health starts at 5%. If you can lose 5% and keep it off for a year, we have made you a healthier person. If you lose even more, even better. But in the medical world, we’re starting with saying, what can we at least say it was going to make you healthier person, 5% for a year?

All of you in this room are successful. The normal society left on their own, we’re not seeing at all.

Speaker 8:                              Yes, there’s the 5% go to physicians across the country have the same belief that it’s just go eat less, exercise more, or there is a comprehensive treatment plan?

Craig Primack:                     It goes towards the, is this a disease? For years and years, this was believed to be a personal failing. For those of you who hear my talk last month, we said this talk about hormones. In 2012, for me it was the groundbreaking study. As you lose weight, the hormone that makes you full goes down, it’s called leptin. The one that makes you hungry is called ghrelin, and it goes up. It doesn’t normalize, and we use drugs and diets and sleep and exercise to combat those hormones.

To me, that’s the day I said, for sure, this is a disease, it’s not a choice. They have said it time and time again, if you suffer with weight, many people who … If someone who doesn’t have weight problems eats, their hunger level goes down and stays down for a certain amount of time. If you have a weight problem, your fullness doesn’t go down as much, and it doesn’t stay down as long. So, we’re more hungry, makes sense. It’s not that someone is, what they used to say is just push yourself away from the table and get to the gym. That didn’t work.

In 2012 or ’13, our society, we actually have an AMA representative. We introduced to the AMA that obesity is a disease. In 2012 or ’13, whichever year it was, I think ’13, the AMA voted that yes, it is. It is a disease and we believe that. Other societies picked up on that same thing, because it is. The boat is turning, it is turning slow.

As people are going through medical school training now, we also have a group that’s basically setting up standards for students in medical school. Starting from the medical student level, to the resident level, to what’s called the fellow level. So, they’re specialty. What they need to know at each of those levels in medical school, and these will go out, they’re actually being dispersed right now to the schools and schools now have to adopt that and put it into their curriculum. Right now it’s voluntary, but there’s no reason not to do it. Other questions?



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