Negligent failure to recommend weight loss surgery & contributory negligence for failure to diet

Almario v. Varipatis (No. 2) [2012] NSWSC 1578 saw a claim against a general practitioner alleging the defendant was legally responsible for the consequences of his pre-existing liver disease progressing to cirrhosis, liver failure and eventually liver cancer.

The breaches of duty argued by the plaintiff were failures to refer (again) to the RPA Weight Clinic, or a similar institution, or by initiating a referral either directly to a surgeon, or through an endocrinologist or a hepatologist, for assessment for suitability for bariatric surgery.

The trial judge emphasised the need to determine breach of duty prospectively:

I reiterate that the precautions relate to weight loss. Mr. Almario’s morbid obesity and related conditions were a disease or diseases which were life threatening quite apart from the prospect of his liver condition developing into cirrhosis and undergoing complications. As I have said, looking forward, and not backwards, it is important to remember that the progression of his liver disease was not the only or even the most serious of the risks to which he was exposed. The expert endocrinologists were in agreement that the risk of cardio-vascular complications was significant. Obviously the progression of his diabetes may have led to serious peripheral vascular compromise. What the collection of foreseeable and not insignificant risks had in common is that all and each of them could be effectively addressed by significant weight loss. Professor Carter said in his evidence that so far as the liver condition was concerned, a loss of 7 per cent of body weight would make a difference.

There was at [113] a finding of breach of duty, by failing to refer Mr Almario to a bariatric surgeon for consideration of his suitability for surgery of that type, to  re-refer Mr Almario to an obesity clinic or to refer Mr Almario to a hepatologist, or similarly qualified physician.

The trial judge found at [150] on the balance of probabilities that had Mr Almario been referred by Dr Varipatis to a bariatric surgeon, surgery would have been offered and undertaken; it would have been successful; and Mr Almario would have complied with the necessary lifestyle changes; more than likely his NASH would not have progressed to cirrhosis, and the complications of cirrhosis which he has suffered, including liver failure and liver cancer, would not have developed. That was the only causation point on which the claim succeeded.

Interestingly, there was a 20% allowance for contributory negligence, for failing to take the precaution of dieting:

It seems to me that a reasonable person in the position of the plaintiff would have taken the precaution of dieting given there was a relatively high degree of probability that serious illness would overtake him unless his obesity was overcome and that that harm could well be grave. One should not however underestimate the burden of overcoming a weight problem especially one as large as Mr Almario’s.

An appeal has been lodged by the defendant general practitioner in this matter.

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