In the previous issue of Pulse we reported on the New South Wales Supreme Court decision in Almario v Varipatis1 in which a trial judge held that a GP was liable for failing to refer a morbidly obese patient to a bariatric surgeon. GPs and medical indemnity insurers will be pleased to know that the New South Wales Court of Appeal has since overturned that decision2.

Background

As a result of gross obesity, the patient developed liver disease, which progressed to cirrhosis and eventually terminal liver cancer. He argued that his GP had breached his duty of care by failing to advise him that his health concerns were caused by obesity, as opposed to exposure to toxic chemicals, and failing to refer him to a bariatric surgeon, obesity clinic, endocrinologist or hepatologist. The trial judge found that the GP had failed in each of these respects, however only the failure to refer the patient to a bariatric surgeon was causative of the patient’s loss.

Findings

The key finding at first instance was that the GP had been negligent in failing to refer the patient to a bariatric surgeon by 30 July 1998. The Court of Appeal disagreed with this view. It noted evidence from a number of experts that bariatric surgery was novel and very uncommon in 1997 and 1998, and carried significant risks. It therefore held that it was reasonable not to have referred the patient to a bariatric surgeon.

The trial judge also found that the GP had been negligent in failing to refer the patient to an obesity clinic. The Court of Appeal noted that the patient had previously been referred to an obesity clinic by another doctor, and that he had failed to act on that referral. The appeal justices rejected the notion that there was an obligation to re-refer the patient in these circumstances, and, further, if such a re-referral had been made, there was no basis on which it could be concluded that the patient would have acted upon it.

The patient had further alleged that he ought to have been referred to a hepatologist. The Court of Appeal accepted evidence from specialist hepatologists that the connection between obesity and liver disease was not well understood prior to 2002. Accordingly it was unlikely that a hepatologist would have taken specific steps to assist the patient with weight loss.

Even accepting that the patient believed (at least to some extent) that his health problems were caused by exposure to toxic chemicals, and that the GP ought to have disabused him of this belief, he had been advised to lose weight by numerous doctors with no effect. The Court held that there was therefore no causal link between the patient’s belief in this regard and his failure to lose weight.

The Court of Appeal commented that the duty of a GP may include advising a patient that weight loss is necessary to protect his or her health. It may also include discussing the options that are available to achieve weight loss and providing appropriate referrals, however the Court was not convinced that there was any obligation, or even power, for a GP to do more than this.

Comment

The Court of Appeal has reinforced the notion that patients should be required to take some care for their own health, and that clinicians are not obliged to pursue an “exercise in futility” by providing repeat referrals to unwilling patients. Nevertheless, the decision is a reminder to GPs and other clinicians that a proactive and multidisciplinary approach may often be required in the management of obese patients.

It should also be borne in mind that the decision in this case was grounded in clinical expertise available over 15 years ago. The scope of the duty of care (particularly in regard to bariatric surgery referrals) is likely to have widened in line with more recent advances in obesity management.