Appeal allowed in obesity surgery case

The New South Wales Court of Appeal has allowed the appeal brought by Dr Varipatis, against a judgment previously obtained against him by Mr Almario.

In Varipatis v Almario [2013] NSWCA 76, the Court of Appeal held (quoting from the summary provided by the Court):


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. The expert evidence of the general practitioners did not demonstrate any obligation, or even power, to do more than that: [38] (Basten JA, Ward JA agreeing).

2. The plaintiff’s conduct did not reveal a willingness to use available services to lose weight. The appellant had referred the plaintiff to Dr Yates, who had in turn referred him to an obesity clinic. The plaintiff did not act on Dr Yates’ referral, despite the appellant counselling him to do so. Accordingly, there was no ground to conclude that had the appellant referred the plaintiff to an obesity clinic the plaintiff would have acted on the referral or lost weight. Therefore, this finding of negligence was not causative of the harm suffered: [25], [27], [33] and [34] (Basten JA, Ward JA agreeing).

3. Moreover, if the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, the appellant did not breach any duty in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility. Accordingly, the finding that the appellant breached a duty to “re-refer” the plaintiff to an obesity clinic cannot stand: [38] and [39] (Basten JA, Ward JA agreeing); [114] (Meagher JA).

4. The evidence of the expert general practitioners did not support the conclusion that a reasonable practitioner would have referred a patient in the circumstances of the plaintiff to a bariatric surgeon in 1998. The finding also obtained no support from the evidence of the expert endocrinologists. Based on that evidence, it would have been reasonable for an endocrinologist in 1998 not to refer a morbidly obese person to a bariatric surgeon. There is no basis to impose a greater duty on a general practitioner. Absent such a duty, the conclusion of the trial judge in this respect cannot stand: [54], [55], [59] and [63] (Basten JA, Ward JA agreeing); [110] (Meagher JA).

5. Accepting that the plaintiff believed that his ill health was at least partly due to exposure to toxic chemicals, and accepting that the appellant should have disabused him of this notion, there was nevertheless no causal link between the plaintiff’s belief and his failure to lose weight. To the contrary, the evidence was overwhelming that he had been given advice, not merely by the appellant but by numerous doctors, that he needed to lose weight to save his health: [70] and [72] (Basten JA, Meagher and Ward JJA agreeing).

6. The plaintiff did not establish that he would have accepted a referral to an obesity clinic, or obtained the resulting benefits, having failed to act on a previous referral. Nor did the plaintiff establish that weight loss would have followed from a timely referral to a hepatologist. The link between obesity and liver disease not being well understood until 2002, the hepatologists did not suggest that they would themselves take particular steps to deal with weight loss. Therefore, it was not likely that in 1997-2001, a hepatologist would have emphasised the importance of weight loss to avoid a fatal liver condition: ([74], [75], [77] and [88] (Basten JA, Meagher and Ward JJA agreeing).

7. The primary judge erred in the way he formulated and answered the question of factual causation. The finding was that the appellant was negligent in failing to either refer the plaintiff to a bariatric surgeon or re-refer him to an obesity clinic. He upheld causation only in respect of the former. Because the duty could have been satisfied by the latter step, the first omission was not a necessary condition of the occurrence of the plaintiff’s injuries: [98], [106] (Meagher JA, Ward JA agreeing).

A later application for special leave to appeal to the High Court was refused.

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