Varipatis v Almario (2013) H&FLR 2014-9

Varipatis v Almario (2013) H&FLR 2014-9

Court of Appeal of New South Wales

18 April 2013

Coram: Basten, Meagher and Ward JJA.

Appearing for the Appellant: Mr D Higgs SC and Ms E Peden (instructed by TressCox Lawyers)
Appearing for the Respondent: Mr DE Graham SC and Mr NJ Broadbent (Instructed by Turner Freeman)

Catchwords: New South Wales – obesity – liver disease – cancer – medical practitoner – refusal to attempt weight loss – failure to treat patient’s obesity – negligence – bariatric surgery – reasonable care – breach of duty – state of medical knowledge

Facts: Mr Almario (plaintiff) was morbidly obese. It was common ground that his obesity resulted in a number of conditions including liver disease which progressed to cirrhosis and finally to terminal liver cancer. He was a patient of Dr Varipatis (defendant) from August 1997 to February 2011. On 27 April 1998 the appellant referred him to a Dr Yates for pulmonary problems. Dr Yates saw the appellant twice in June and July 1998 and recommended that he be referred to a specialist at the obesity unit of a major hospital. When the plaintiff consulted the defendant on 30 July 1998, he formally declined such a referral and stated that he would not attempt weight loss.

The plaintiff sued the defendant on the basis that he (the defendant) had failed to take necessary steps to treat the plaintiff’s obesity, resulting in him developing the liver conditions.

At trial the court held that the defendant had been negligent in failing to refer the plaintiff to a bariatric surgeon by 30 July 1998, in failing to refer him to an obesity clinic, and in failing to refer him to a hepatologist or similar physician by 30 September 2000. However, only the failure to refer him to a bariatric surgeon was found to be causative*.  The defendant appealed.

Held: Upholding the appeal –

Per Basten JA (Ward JA agreeing) and Meagher JA –

(1) To take reasonable care for the health of a patient, a general practitioner may be obliged to advise bluntly that weight loss is required, to discuss how this may be achieved, and to encourage them to accept suitable referrals. However, the general practitioner’s duty of care does not require an exercise in futility: if a patient declines to take the advise of his general practitioner and appropriate specialists there is no breach of duty in failing to write a further referral.

(2) On the state of medical knowledge in 1998, a reasonable general practitioner would not have referred the plaintiff to a bariatric surgeon at that time. Accordingly, Dr Varipatis had not been negligent in failing to make such a referral.

Per Basten JA (Ward JA agreeing) –

(3) On the state of medical knowledge in 2000, it was unlikely referral to a hepatologist would have resulted in any particular recommendation in relation to weight loss.

Judgment

The Court’s judgment is available here.

On 16 August 2013 the High Court of Australia declined to hear an appeal from the Court of Appeal’s decision: Almario v Varipatis [2013] HCATrans 193

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* Almario v. Varipatis (No. 2) [2012] NSWSC 1578