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October 17, 2017 Articles

Malnutrition: Legal Issues

An overview of the basics of malnutrition and its consequences as well as some legal responses to this problem.

By Heidi J. Silver

Healthcare and the law intersect when malnutrition is at issue. Litigation and legislation have been two responses to this health crisis. This article presents an overview of the basics of malnutrition and its consequences as well as some legal responses to this problem. 

Malnutrition: The Basics
Malnutrition is a condition in which there is an insufficient intake of energy and nutrients to promote growth and repair of tissues. Malnutrition promotes or increases the risk of immune system compromise, infections, delayed wound healing and surgical site wound breakdown, pressure ulcers, falls and fractures, hospital admissions and readmissions, and even mortality.

Maintenance of body weight (an indicator of nutritional status) is a process whereby energy intake is matched to energy expenditure over time to promote the stability of body fuel stored in the form of adipose tissue (fat). Total energy intake comes in multiple forms: foods, beverages, supplements, and medications. In conditions where there is an inability to chew, swallow, digest, or absorb adequate nutrients, energy intake may be administered via tube or intravenous feeding. Total energy expenditure is comprised of four main forms: sleeping energy expenditure; resting energy expenditure; physical activity energy expenditure; and the energy expended during digestion, absorption, and metabolism of nutrients (dietary thermogenesis). A disturbance in the balance between energy intake and energy expenditure results in loss or gain of body weight. The underlying biological mechanisms regulating body weight are driven by genetic, physiological, and behavioral factors.

Often, surrogate indicators for health and disease risk, such as body mass index (BMI) are misused, leading to misinterpretation or misclassification of the evidence and thereby misinforming assessment and decision-making. Using BMI as a simple example, although two people could have the same low BMI, which may be seen as a state of inadequacy, one of those people could be underweight while the other might have short stature and actually be overweight.

Malnutrition can occur at any body weight or BMI. Indeed, the most common type of malnutrition in the United States today occurs when an individual has a high body weight / BMI. Termed “sarcopenic obesity,” the coexistence of high fat mass—which increases the risk for a multitude of chronic diseases, including Type 2 diabetes, some types of cancer, respiratory disease, arthritis, and cardiovascular disease—and low muscle mass occurs as a result of an acute condition, chronic disease, inflammation, aging, or inadequate nutrient intake. The impact of sarcopenia and sarcopenic obesity on health status is much like that from other types of malnutrition: impaired muscle strength and physical function.

Malnutrition: The Legal Landscape
Malnutrition is not just a healthcare issue; it is also a legal issue, producing not only litigation but also legislation.

High-risk settings for malpractice or negligence with regard to nutrition-related health status include hospitals, nursing homes, and other institutional facilities where individuals are dependent on others to provide foods and beverages that meet their energy and nutrient needs. Understanding the clinical importance of proper nutrition and the implications of malnutrition and its physical and mental sequelae is critical in identifying factors that drive inadequacies in the provision of care to meet individuals’ energy and nutrient needs and, thus, adversely affect their health status.

The impact on healthcare costs and the societal burdens stemming from malnutrition, particularly that associated with high body weight / BMI, are significant. This raises the question of whether laws can be implemented to prevent or reduce obesity. Plausible legal interventions include such actions as requiring greater disclosure of food and beverage ingredients on package labels, regulating marketing and advertising to vulnerable groups such as children, and applying a “sin” tax such as that attached to the price of cigarettes and alcohol.

In terms of a sin tax, however, a key consideration is that food, unlike cigarettes and alcohol, is necessary for survival. Moreover, the scientific evidence that specific foods or food groups are physiologically addictive is inconclusive.

Another concern is whether establishment of such policies contribute to the stigma associated with having excess body weight or to weight discrimination. It is noteworthy that weight discrimination in the United States has increased in tandem with the overall rise in the population’s body weight. Inopportunely, though, legal recourse is limited, and public support is weak for obesity being considered a disability.

Malnutrition has made its way from doctors’ offices to lawyers’ offices. As a lawyer, providing expertise on nutrition and weight-related cases requires having not only the academic background, experiential training, and technical know-how to assess the various physical and mental health factors of the individual client but also the ability to consider the availability of, access to, and appropriateness of the multiple avenues in which adequate energy, nutrients, and nutrition-related care are provided.

Overall, the most appropriate focus on changes in body weight, whether loss or gain, is one that evaluates the impact on health status and quality of life rather than size.

Heidi J. Silver is an associate professor at Vanderbilt University Medical Center and a health scientist at the Tennessee Valley Healthcare System.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).