Varipatis v. Almario [2013] NSW CA 76

Introduction

Mr Almario was a morbidly obese man who suffered from a number of health issues, including diabetes and liver disease. From 1997 onwards, he was provided with treatment by Dr Varipatis, a General Practitioner.

In 1997 and 1998, Dr Varipatis counselled Mr Almario in respect of his morbid obesity and warned of the potential risks of this condition. However, he did not make a referral to an obesity specialist. From 1999 onwards, Mr Almario’s liver disease progressively worsened, such that in 2003 he was diagnosed as suffering liver failure. Mr Almario was eventually diagnosed with terminal liver cancer.

Supreme Court Proceedings

Breach of Duty

Mr Almario commenced proceedings in the Supreme Court of New South Wales alleging that Dr Varipatis was negligent in failing to proactively treat his morbid obesity and liver disease by referring him for assessment to undergo bariatric surgery.

Mr Almario relied upon expert evidence to the effect that Dr Varipatis should not have simply advised him of the need to lose weight and the potential health implications, but should have been involved on an ongoing basis in the management of this condition. In his defence, Dr Varipatis relied on expert evidence to the effect that a general practitioner in Dr Varipatis’ position should have motivated Mr Almario to lose weight, but that ultimately it was the patient’s decision whether to proceed with treatment.

The Court at first instance accepted Mr Almario’s expert evidence and found that a reasonable general practitioner in Dr Varipatis’ position would have referred the plaintiff to a bariatric surgeon or obesity clinic by July 1998 for potential treatment of his morbid obesity.

Causation

Mr Almario alleged that, had he been referred for specialist review in around July 1998, he would have been considered for bariatric surgery. If this surgery had been performed, Mr Almario claimed that his liver disease would not have progressed to cirrhosis and that he would not have suffered liver cancer.

The experts agreed that, had Mr Almario successfully undergone bariatric surgery before he developed cirrhosis, it was likely that he would have avoided progression to cirrhosis, liver failure and liver cancer.

Dr Varipatis argued that even if Mr Almario had been referred for specialist review or bariatric surgery, the evidence did not support a finding that he would have been eligible for bariatric surgery, could have afforded to undergo the surgery or would have made the necessary lifestyle changes to effect weight loss.

The Court did not accept Dr Varipatis’ submissions and instead found that Mr Almario would have raised the necessary funds to undergo bariatric surgery, would have elected to undergo the procedure and complied with the lifestyle changes necessary to succeed in overcoming his obesity. Had this occurred, the Court found that Mr Almario’s liver disease would not have progressed to cirrhosis and liver failure and that his liver cancer would therefore have been avoided.

Court of Appeal’s Decision

Dr Varipatis appealed to the New South Wales Court of Appeal. The Court of Appeal upheld Dr Varipatis’ appeal and relevantly found that:

Breach of Duty

  1. 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. However, the expert evidence did not demonstrate any obligation or power to do more than that.
  2. The expert evidence did not support a conclusion that a reasonable general practitioner in Dr Varipatis’ position would have referred Mr Almario to a bariatric surgeon in 1998.
  3. If Mr Almario had previously refused to take advice to lose weight, Dr Varipatis did not breach his duty of care by failing to write a further referral, as his duty “stopped short of requiring an exercise in futility”.

Causation

  1. Mr Almario’s conduct did not reveal a willingness to use available services to lose weight, having previously failed to do so. There was therefore no ground to conclude that, had Dr Varipatis referred Mr Almario to an obesity clinic or hepatologist, he would have acted on the referral or lost weight.

The decision will no doubt come as a considerable relief to medical practitioners, who would otherwise have been under a much more stringent burden of patient follow up. More generally, the decision is an encouraging indication of the Court’s current rigorous approach to causation.