Who knows best? Doctors and patients clash over obesity

19 November 2013

By Mary Farrell, Lawyer, Medical Law Department, Melbourne

The High Court has recently refused an application to appeal a Court of Appeal decision Almario v Varipatis [2013] HCA Trans 193 which overturned a NSW Supreme Court ruling finding a general practitioner negligent in failing to refer an obese man for treatment.

Mr Luis Almario, a former Colombian revolutionary who is suffering from terminal liver cancer, commenced a claim against his general practitioner Dr Emmanuel Varipatis, alleging that he was responsible for the consequences of his pre-existing liver disease progressing to cirrhosis, liver failure and eventually liver cancer.

It was submitted that Dr Varipatis should have been more proactive in treating Mr Almario's early stages of liver disease by, among other things, addressing his morbid obesity.

Justice Campbell of the NSW Supreme Court found that Dr Varipatis was negligent in failing to refer Mr Almario to a hepatologist and a bariatric surgeon or an obesity clinic. Damages were awarded in the sum of approximately $364,000, with a reduction to allow for contributory negligence.

The principal judgement gave rise to questions about the duty of care owed by doctors to advise of treatment options for obese patients. Medical insurers were concerned about the potential legal ramifications of the decision including whether it extended the obligations of a doctor more than to simply provide advice which the patient could either accept or reject.

This is because Mr Almario had been referred to an obesity clinic in the past and had, according to Dr Varipatis, declined this option. Dr Varipatis himself had not referred him but was aware of the referral and gave evidence that he had explained the imperative of losing weight.

The Court of Appeal found that the primary judge had erred in finding that Dr Varipatis was required to re-refer Mr Almario to an obesity clinic or refer him to a bariatric surgeon. It was held that while a general practitioner may be required to advise in relation to weight loss and offer appropriate referrals, the obligation stopped short of an 'exercise in futility' - re-referral to an obesity clinic when the patient had already indicated they would not act on the referral.

It was also held that because Mr Almario had not established that he would have acted on a referral to an obesity clinic or that weight loss would have resulted from a referral to a hepatologist, causation was not made out.

Mr Almario's legal team made a special leave application to the High Court arguing that the Court of Appeal had erred in the findings as to fact, particularly in relation to the expert evidence.

It was submitted by Mr Almario's Counsel that the Court of Appeal should have made a finding as to whether, on the balance of probabilities, Mr Almario would have been referred for bariatric surgery if Dr Varipatis had referred him to a hepatologist for investigation of his liver symptoms.

Justices Crennan and Keane found that there were insufficient reasons to doubt the correctness of the Court of Appeal decision and refused the application.

While the High Court's decision was the end of the battle for Mr Almario, Australia's ever-increasing obesity statistics suggest this is not the end of the discussion about the interactions between the medical profession and obese patients.

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