Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

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