Bariatric surgery case clarifies Standard of Care

16 August 2023

Amidst the surging popularity of weight loss surgery, a recent decision outlines the approach the Court will take when determining whether the standard of care has been breached by a surgeon performing weight loss surgery.

The facts

On 22 July 2013, the plaintiff underwent a gastric sleeve procedure performed by the defendant, a Bariatric Surgeon, to manage their morbid obesity. Postoperatively, the plaintiff developed haematoma, but leak tests were negative and they were discharged once their condition stabilised. The plaintiff subsequently developed a small post-operative leak, which required a laparoscopic washout and the insertion of peritoneal drain. They also developed an infection, which the defendant planned to control with drains, IV antibiotics and comprehensive nutrition. When the plaintiff was discharged on 23 September 2013, they were considered to be “clinically well with no signs of sepsis”. Subsequently, the plaintiff had a difficult and complex post-operative course, including an ongoing gastric fistula, abdominal pain, jaundice, dehydration, suspected pancreatitis, liver failure, intraabdominal fluid collection, anaemia, malnutrition and infection. Their extensive post-operative treatment involved many admissions to hospital and multiple surgical procedures over the following years.

The plaintiff brought proceedings against the defendant in the Supreme Court of NSW.  Among 26 allegations of negligence, the plaintiff alleged that:

The Court’s findings

After numerous judgments in relation to this matter, the plaintiff was ultimately unsuccessful in their claim of negligence against the defendant.

The Supreme Court found that the plaintiff’s evidence in relation to their alcohol consumption and advice they were provided, was inconsistent with other evidence in the case. The plaintiff conceded at trial that their memory was bad. The Court found that the plaintiff’s evidence was unreliable and favoured the evidence contained in the contemporaneous and detailed clinical records, supported by the ‘usual practice’ evidence given by the defendant and their multi-disciplinary team.

The Court noted that the plaintiff’s experts were critical of the defendant's pre-surgical advice based on a number of assumptions put to them, including the assumption that the plaintiff told the defendant that they consumed a bottle of wine each night. The Court found these assumptions were not consistent with the clinical records and the plaintiff's evidence on this issue was unreliable. Consequently, the Court found that the plaintiff’s expert opinions on this issue were to be disregarded. 

The Court found that the plaintiff was comprehensively warned of the inherent risks of the procedure, including the risk of a staple line leakage. In particular, the Court was complimentary of the amount of information given to the patient, including the detailed RACS information sheet, which was annexed to the judgment. The Court also noted the written and witness evidence that the plaintiff had a ‘single-minded determination’ to have the procedure despite the risks because they saw how well it had worked out for their friend.

In relation to the performance of the procedure and treatment after the procedure, the court did not consider it fatal to the plaintiff’s case the fact that none of the plaintiff’s experts were practising bariatric surgeons in Australia. The court noted that the plaintiff’s experts had relevant expertise and each expert had formed opinions within their speciality. Nevertheless, noting the defendant experts were treating bariatric surgeons and considered the defendant acted in a manner accepted in Australia as competent professional practice (section 5O of the Civil Liability Act 2002 (NSW)), this was sufficient to establish that no negligence had occurred.  The Court rejected the argument that section 5O was to be used as a defence to negligence rather than the standard of care of professionals.

Ultimately, the Court held that the defendant acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, and that all the complications which arose were well-known risks and sequelae of the gastric sleeve procedure.

Key takeaways

This case clarifies that section 5O is not a defence in New South Wales. Rather, a medical professional need only successfully establish that they acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice at the time.

For practitioners, this case is also a timely reminder of the importance of maintaining detailed notes. In the context of weight loss surgeries, doctors are encouraged to record a detailed history that includes relevant co-morbidities and the patient’s motivation for undergoing the procedure, details and results of examinations performed and details of all advice provided.

In relation to the risks associated with undergoing weight loss procedures, this case indicates such advice should be  given in person, but may be assisted by pamphlets or information sheets.  Advice provided by the surgeon and multi-disciplinary team members and details of all written information provided to the patient should be clearly recorded in the clinical notes.  


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