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Patient weight loss: the scope of GP duty of care

A GP has won his appeal against a ruling ordering him to pay over $300,000 in compensation to a morbidly obese patient. AMA Victoria Solicitor Melanie Earles reviews the case.

The recent decision of the NSW Supreme Court of Appeal in Varipatis v Almario [2013] NSWCA 76 will come as a great relief to GPs, because it overturns the trial decision that GPs may be held legally responsible for their patient’s failure to lose weight.

The earlier decision of Almario v Varipatis (No.2) [2012] NSWSC 1578 generated much interest because it held that Dr Emmanuel Varipatis’ failure to refer his morbidly obese patient, Mr Almario, to a bariatric surgeon or obesity clinic constituted a breach of duty of care that resulted in the patient’s liver disease progressing to liver failure, cirrhosis and fatal liver cancer. The doctor was ordered to pay damages of $364,372.48.

The decision has been reversed on appeal on the basis that requiring the doctor to re-refer the patient to an obesity clinic would have been “an exercise in futility”, given that another doctor had referred the patient to an obesity clinic and he had failed to follow up the referral.

Furthermore, the court held that it was an unrealistic expectation for the GP to refer the plaintiff to a bariatric surgeon at the time, when the trial judge made a finding that specialists like endocrinologists and hematologists would not have done so in 1998.

The appeal decision comes as a great relief to many GPs, as it removes a heavy burden placed on GPs in relation to the scope of duty of care.

Background

The patient, Mr Almario, was a severely obese Colombian who came to Australia in 1983. At the relevant time he weighed 140 kg and was 154 cm in height. He initially sought treatment from Dr Varipatis because he believed his symptoms were in part due to chemical exposure during previous work at the former Union Carbide site. Dr Varipatis had a special interest in treating disease resulting from toxic exposure.

The patient later sued Dr Varipatis on the basis that he should have referred him to a bariatric surgeon or obesity clinic in 1998, which would have led to weight loss and a prevention of cirrhosis and liver cancer, which is expected to be terminal.

Finding at first instance

To establish negligence, the court had to find that Dr Varipatis had breached his duty of care and that the breach caused the injury to the patient.

Breach of duty of care is established where there is a foreseeable and not insignificant risk to a person to whom a duty of care is owed, and the person who owes the duty fails to take precautions to avoid the risk.

At first instance, the doctor was found to have breached his duty of care in the following three respects:

  1. failing to refer the patient to a bariatric surgeon by July 1998;
  2. alternatively, failing to re-refer to the patient to an obesity clinic or endocrinologist; and
  3. failing to refer the patient to a hepatologist by the end of September 2000.

The court found that for the purpose of s5B(1)(a) of the Civil Liability Act (the Act), the doctor knew or ought to have known that the patient’s elevated liver function tests may have been due to serious pathology, and that given the patient’s comorbidities, the condition was likely to progress. The development of cirrhosis and its complications were risks that were both foreseeable and not insignificant.

His Honour then considered whether a reasonable doctor would have referred the plaintiff to an appropriately qualified physician or bariatric surgeon. He was satisfied that this would have occurred given the patient’s own failed attempts at weight loss and the associated comorbidities.

Once breach of duty was found, to establish causation the court had to consider a number of hypothetical scenarios, including whether the patient would have been compliant losing weight post surgery and what the physician would have done in 2000 when bariatric surgery procedures were not commonplace.

One of the difficulties of the case was that there was more than one substantial cause of the patient’s harm. Ultimately, His Honour decided it was necessary to show on the balance of probabilities that positive intervention by the doctor would have reversed the ordinary progression of the patient’s disease. Only the first breach was found to be causally effective.

He was satisfied on the balance of probabilities that if the patient had been referred to a bariatric surgeon, surgery would have been offered and undertaken, the surgery would have been successful in achieving permanent weight loss, that the patient would have been able to comply with the lifestyle changes necessary to overcome obesity and that in doing so, it was more likely than not that the patient’s liver condition would not have progressed to cirrhosis, liver failure and liver cancer.

Damages

In assessing damages, the court took into account the patient’s short life expectancy of 40 weeks and that he had suffered for a long period of time. As a result, non-economic loss was assessed at 65 per cent of the most extreme case.

Full damages of $569,332 were reduced by 20 per cent to account for the fact that bariatric surgery may not have been successful and that the patient had other conditions, including obstructive sleep apnoea, diabetes and cardiovascular disease. An additional 20 per cent was deducted for contributory negligence on the part of the patient, as the court held a reasonable person in his position would have taken the precaution of dieting given the serious consequences of his failure to lose weight. The final judgement sum awarded was $364,372.48.

There was an issue whether the limitation period for the action has expired; however, the court found that the development of the patient’s liver cancer was such “a serious complication and large increment in the overall injury” that, despite the liver failure occurring in 2003, the patient was not aware of the nature and extent of his injury until 2011, when he received his diagnosis of liver cancer. This adequately explained the delay in bringing proceedings.

Finding on appeal

On appeal, the GP challenged the findings as to breach and causation.

The issues for determination on appeal were

  1. whether the doctor breached his duty to the patient by failing to refer him to an obesity clinic or endocrinologist;
  2. whether referral to a bariatric surgeon was necessary in the exercise of a general practitioner’s duty of care in 1997–1998;
  3. whether the patient would have lost the necessary weight had the doctor properly advised him about the cause of his liver disease and other health problems; and
  4. whether the patient would have lost sufficient weight had he been referred to an obesity clinic or hepatologist.

The NSW Supreme Court of Appeal reversed the decision of the lower court, on the grounds that Dr Varipatis did discuss weight loss options with his patient and that the patient displayed a reluctance to lose weight.

In relation to the first point, the court held that “a general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) appropriate referrals. The expert evidence of general practitioners did not demonstrate any obligation, or even power, to do more than that”.

The evidence revealed that Dr Varipatis had referred the patient to Dr Yates, who had in turn referred the patient to an obesity clinic, but the patient did not act on Dr Yate’s referral despite being encouraged to do so. This meant that the finding of negligence (in failing to refer) was not causative of the patient’s harm.

Moreover, the court held that if the patient failed to take the advice of doctors to whom they had been referred, the duty of care of the GP “stopped short of requiring an exercise in futility”, meaning that failing to “re-refer” was not a breach of duty.

In relation to point 2 above, it was held that referral to a bariatric surgeon did not form part of the duty of care of the GP in 1998. Although bariatric surgery was available at the time, it was not necessarily successful nor the benefits long-lasting or without complications.

The court ordered that the patient pay the doctor’s costs of the appeal and of the trial below.

Discussion

The medical community has welcomed the decision as it brings some clarity and limitations to the scope of the GP’s duty of care. Commentators have expressed relief that the message the decision sends to the community is that people must bear responsibility for their own lifestyle choices, and this responsibility cannot be passed off to their doctor.

The trial decision had potential for wide-ranging implications that were of concern to GPs, particularly in relation to the scope of their duty of care. For example, the Royal Australian College of General Practitioners has requested that two electronic prescription exchange vendors disable automatic notifications that alert GPs that medications have been dispensed. It was argued that receipt of dispense notifications could have implications for doctors’ liability and an increased vulnerability to being sued for failure to follow up with patients, and that an “opt in” system was preferable.

The appeal has been seen as a big win for the medical community.

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