If a GP has obese patients, and their obesity may increase the likelihood that their other conditions will get worse, does the doctor have a duty to refer those patients for bariatric surgery? And does the patient have any personal responsibility for reducing their weight?
The controversial case of Almario v Varipatis (No 2) 2012 NSWSC 1578 said “yes” to both questions.
The background to the case
Mr Almario was a patient of Dr Varipatis from 1997 to 2011. Mr Almario consulted Dr Varipatis because he held himself out to be a specialist in nutritional and environmental medicine and Mr Almario believed his constellation of health problems were related to exposure to toxic chemicals in the workplace in 1988. Dr Varipatis ultimately assumed the role of an ordinary GP. At the time of Mr Almario’s first consultation, he was morbidly obese and had a number of inter-related conditions all affected by his obesity.
Mr Almario maintained that Dr Varipatis represented to him that his health problems were related to exposure to toxic substances and that the appropriate treatment was to undergo a series of detoxifications. Mr Almarion alleged that this advice was negligent because a reasonable GP ought to have known that his health problems, including his liver problems, were due, not to toxicity, but to the combined effects of morbid obesity and related conditions. Mr Almario alleged that he relied upon Dr Varipatis advice and formed the belief that measures such as dieting and exercise would not assist him (at [8]).
Mr Almario argued that Dr Varipatis should have been more proactive in treating his early stage liver disease by directly addressing his morbid obesity. He also alleged the doctor’s failure to do caused liver disease to progress to cirrhosis, liver failure and eventually liver cancer.
In his defence, Dr Varipatis argued that, as of the late 1990s, when bariatric surgery would have assisted Mr Almario, it wasn’t considered effective in treating progressive liver disease associated with morbid obesity. Dr Varipartis also asserted that, even had he referred Mr Almario, he still would have developed liver cancer.
The decision at first instance
In the NSW Supreme Court, Campbell J held that “it is incumbent upon a medical practitioner to do more than merely point out the risks and counsel weight loss” [85]. He went on to state that he was satisfied that a reasonable GP would refer a person in Mr Almario’s situation, with his history of failed weight loss attempts and his co-morbidities, directly to a bariatric surgeon for consideration of surgical management (at [91]). Campbell J held it was negligent of Dr Varipatis not to have made such a referral by mid-1998 (at [93]). Alternatively, Campbell J found that Dr Varipatis should have referred Mr Almario to a specialist in obesity management and that his failure to do so was negligent. (at [98]). Campbell J also dounfDr Varipatis was negligent for failing to refer Mr Almario to a hepatologist by the end of 2000.
In regards to causation, Campbell J was satisfied that, had Mr Almario been referred to a bariatric surgeon, he would have been considered for surgery, most probably laparoscopic adjustable banding (at [125]). The surgical expert witnesses agreed that, had Mr Almario had successful bariatric surgery before he developed cirrhosis, it was more likely than not that he would have avoided progression to cirrhosis, liver failure and liver cancer (at [135]).
Campbell J found Mr Almario 20% contributory negligent in his own failure to manage his weight.
The case received a lot of media attention and many GPs panicked about what the decision might mean for their practice. Assoc Prof Tina Cockburn was quoted as stating “[w]hen an obese patient presents for treatment, GPs may now need to take proactive steps to facilitate their patient’s weight loss treatment …. [g]iven the growing incidence of obesity… failure to proactively manage the treatment of obese patients has the potential to expose GPs to significant medico-legal risk.”
Avant appealed the decision.
The Court of Appeal’s decision
In Varipatis v Almario (2013) NSWCA 76 the court allowed the appeal and reversed the findings of Campbell J.
The issues the court considered were:
- Whether Dr Varipatis breached his duty of care in failing to refer Mr Almario to an obesity clinic or endocrinologist.
- Whether referral to a bariatric surgeon was a necessary element of a GPs duty in the relevant time period.
- Whether Mr Almario would have lost the necessary weight had he been properly advised of the role of his obesity in his liver disease and other ailments.
- Whether Mr Almario would have lost sufficient weight had he been referred to an obesity clinic or hepatologist.
Basten JA (with whom Ward JA agreed) stated (at [38]):
“A general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise in unequivocal terms 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) referrals to appropriate specialists or clinics. It will be necessary to refer more specifically to the expert evidence provided by general practitioners, but it suffices to note at this stage that their evidence did not demonstrate any obligation, or indeed power, on the part of a medical practitioner, to do more than that. If the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, there was no breach of duty on the part of a general practitioner in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility.”
Basten JA went on to state that the evidence of the expert general practitioners did not support the conclusion that a reasonable practitioner would have referred a patient in the circumstances of Mr Almario to a bariatric surgeon in the relevant time period. Therefore Campbell J’s findings could not stand (at [63]-[64]).
Also interesting to note, Meagher JA, (Ward JA agreeing) held (at[106]) that Campbell J erred in the way he formulated and answered the question of factual causation. The finding was that Dr Varipatis was negligent in failing to either refer the plaintiff to a bariatric surgeon or re-refer him to an obesity clinic. Meagher JA upheld causation only in respect of the former. Because the duty could have been satisfied by the latter step, the first omission was not a necessary condition of the occurrence of the plaintiff’s injuries.
The impact of the decision
One might surmise from the primary judgment and the appeal findings that GPs should ensure they adequately advise and counsel patients as to the effect of their obesity on their health and provide referrals were appropriate. Bariatric surgery is now more commonly performed and research suggests it can lead to marked improvements in health outcomes for patients, particularly in relation to type 2 diabetes. This may mean that the standard of care for a GP today requires them to refer patients for consideration of bariatric surgery where their obesity is likely to impact on their overall health and they have tried, and failed, to lose weight through other means.
Simply because the Court of Appeal overturned the Supreme Court’s decision in Varipatis, this doesn’t rule out the chance that a GP could be found negligent for failing to adequately advise and treat on weight management, if the factual matrix is right.
