Obese man wins $350,000 from doctor

Tuesday 19 February 2013 5:45PM (view full episode)

A morbidly obese man dying from liver cancer has successfully sued his GP for failing to send him to a weight loss clinic or recommend him for lap band surgery.

The Supreme Court of New South Wales awarded 68-year-old Luis Almario $350,000 after finding that his doctor had been negligent in his treatment.

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Damien Carrick: Damien Carrick here and this is the Law Report on ABC Radio National, Radio Australia and ABC News Radio.

Now to another court case which raises questions around how we promote best health outcomes.

Journalist: In a landmark legal case, a morbidly obese man has successfully sued his GP for failing to refer him to a weight loss clinic or lap-band surgeon…

Damien Carrick: Next month the New South Wales Supreme Court will hear an appeal in the case of Almario and Varipatis. In December, Mr Luis Almario was awarded $350,000. The judge found that Mr Almario's GP, Dr Emmanuel Varipatis, was negligent for failing to refer his patient to an obesity specialist or lap-band surgeon. And the judge found that this failure allowed Mr Almario's liver disease to progress to terminal liver cancer.

Associate Professor Barbara McDonald is a specialist in torts law based at the University of Sydney Law School. She says Luis Almario, who emigrated to Australia from Colombia back in the '80s, has for many years lived with obesity.

Barbara McDonald: Mr Almario came to Australia from Colombia. When he first consulted the defendant, Dr Varipatis, he was 53 years old and at that time he was already very seriously obese…

Damien Carrick: I think he was about 126 kilos in 1997.

Barbara McDonald: Yes, that's right, something like that, and he actually had been up and down from 119 to 137 to 140 kilograms at different times over the previous 10 years or so. So he was already very seriously obese when he came to see Dr Varipatis. And at that time he had liver disease, this was pre-existing when he first consulted Dr Varipatis. Eventually it progressed to cirrhosis and liver failure in 2003, and liver cancer in 2011. The critical time here is the time between 1997 and 2003, and that's the time period which is the subject of these proceedings.

Damien Carrick: That's the time period in which the liver disease developed into liver cancer, and it coincides with the time period in which Dr Varipatis was, if you like, the GP responsible for his general health.

Barbara McDonald: Yes, it was in that period of time that if Dr Varipatis had referred him for bariatric surgery and if he'd had it and if it had worked, it may well have prevented or it least slowed down the developed of cirrhosis. Once cirrhosis develops apparently it's irreversible, but the early liver disease can be reversible, and a key factor in that is the reduction of weight. The morbid obesity is the real problem there.

Damien Carrick: So the New South Wales Supreme Court recently found that Dr Varipatis is in fact liable in negligence, and it awarded Luis Almario $364,000 in damages. What was the negligence that Dr Varipatis was found to have committed?

Barbara McDonald: He found that he was negligent in not referring him to a specialist for bariatric surgery…

Damien Carrick: That's a lap-band surgery.

Barbara McDonald: Lap-band surgery, at the time.

Damien Carrick: What's your view of this decision?

Barbara McDonald: I think it's a very difficult decision for GPs because this is a patient clearly who had a lot of problems, it wasn't just obesity problems at the time, Dr Varipatis was also looking at other problems that he had and referring him to various specialists for those. So there were a lot of things happening every time he saw him. I think it puts an enormous burden on GPs to actually be seen to be looking after their patients in a very general way. I mean, we know that GPs do have to be proactive in the sense, yes, of course they have to send people to specialists, they have to suggest they go to specialists, but how much they have to do if the person doesn't follow up is another matter. And I think the worry of this case is the degree of active involvement.

I should, however, say that a question of breach of duty of negligence is a decision of fact, it's actually not a precedent as such for other GPs. Every decision is a decision of fact, so you can't say that just because the doctor was liable in this case that a doctor would always be liable for not referring a patient. But clearly now bariatric surgery is much better known and much more common. We hear of people having it all the time, and it may be more available, it may be less expensive than it used to be when it was rare, and it may be something that now we have more awareness of how effective it can be.

But we have to be terribly careful about judging Dr Varipatis with 2013 eyes and knowledge, we have to go back to what was happening between 1998 and 2003, and the evidence wasn't overwhelming on that. I mean, the judge had to decide on the balance of probabilities had he been negligent, and in the end he decided, having heard the witnesses, that he should have referred him for bariatric surgery. But it certainly wasn't overwhelming that that was the case and that other GPs would have done so or that a careful GP would do so.

Damien Carrick: What was the court's findings when it came to the sorts of conversations which took place between the doctor and patient around obesity and the risks attached to remaining obese?

Barbara McDonald: Well, again, the court hast to come to a conclusion on the evidence before it, and that evidence includes records of the consultations at the time, the evidence of the plaintiff and the evidence of the defendant. I gather that the plaintiff's evidence wasn't particularly reliable. The judge was not alleging any fraud on his part at all or anything like that or truthfulness…

Damien Carrick: No, but he's a very sick man now, isn't he.

Barbara McDonald: He's a very sick man, and his ability to recall precisely what was said at precisely what consultations was impaired by that. Dr Varipatis had made some notes but not complete notes, and there was some issue as to whether annotations were made at the time or later. There had been a discussion about referring him to an obesity clinic, and Mr Almario said he'd tried that before and it hadn't worked so he wasn't interested in that. Again, it was an inference that the judge had to draw on the balance of probabilities of what had been said and what had not been said and whether that was sufficient.

Damien Carrick: He's a man who had a long history of being morbidly obese from a relatively young age. To what extent…when there is an obvious health risk like this, which has presumably been canvassed over the years, to what extent is it a requirement on doctors to constantly reiterate warnings which could well be considered completely obvious and self-evident?

Barbara McDonald: Look, it's a very delicate balance and, again, I don't think we can say as a matter of law that there's a particular way that doctors should go about how they deal with their patients. They have to take reasonable care but they also have to take into account a whole range of factors in the care of that particular patient. For example, I would have thought their mental state as well would be a very important factor. Yes, of course it should be quite clear that…they make it quite clear that if they don't lose weight then there will be a number of very serious fatal consequences for a whole range of areas, and yes, if there is an indication of liver disease then clearly they have to treat that liver disease. But I think we have to be very careful about thinking that the law can prescribe what doctors should do in particular situations because there are just so many different factors.

Damien Carrick: Associate Professor Barbara McDonald from the University of Sydney Law School.

Dr Adrian Sheen is head of Doctors Action, an organisation that supports the role of family doctors out in the community. He says the Almario decision puts added pressure on general practitioners.

Adrian Sheen: The role of the general practitioner in the community is already extraordinarily difficult, and then to find that there is just another element that we have to be responsible for makes our job virtually impossible.

Damien Carrick: Why do you say it makes the job of AGP virtually impossible?

Adrian Sheen: I think that general practitioners do have a duty of care for their patients, but then one has to wonder whether patients have a duty of care to themselves, and where does this all end when patients really have to take some responsibility for their own health. I mean, this is broader than just this specific case because it has ramifications in all types of care that the family doctor has to deal with, and anybody who has not been looking after their health, doesn't try to look after their health, may have a wide range of diseases, and doctors can only do so much. We can advise, we can help, but there has to be a limit to what we can do.

Damien Carrick: You've been quoted as saying that 'this will force doctors to refer patients off for every test under the sun or fear being dragged into the courtroom'. Is that your fear?

Adrian Sheen: Yes, I think defensive medicine is an enormous cost to the health service, it already is an enormous cost to the health service, and this just will make it all the more difficult.

Damien Carrick: And what's the obligation on the doctor when they see somebody who is a heavy smoker or who is obese or a heavy drinker?

Adrian Sheen: The doctors have to provide advice to tell patients what the issues are relating to their health or whether there is any negativity to their style of life, but not all patients will take this on board. Or they might suddenly realise too late that they really should have lost weight an awful long time ago, they'd be much happier, and it has an impact on them which they wish to have, maybe from osteoarthritis, their walking, their hypertension and diabetes and all the other things that occur with obesity. This is the same with smoking. Sometimes they don't want to give up, basically they don't want to give up and eventually they want to place blame on somebody in the community they've been seeing. And this is why it becomes so difficult because it's much easier then to say, 'Well, if you're going to smoke you must go and see somebody else.'

Damien Carrick: Dr Adrian Sheen from Doctors Action.

But not all medicos are appalled by the Almario decision. Associate Professor John Dixon is head of clinical obesity research at the Baker IDI Heart and Diabetes Institute in Melbourne. He thinks the decision is a wake-up call for doctors.

John Dixon: The medical profession have tended to have a pejorative view of obesity and its complications and tend to categorise it as, well, this person brought it on themselves. And clearly that's something the judgement is challenging.

Damien Carrick: Is that your view, that doctors tend to be critical and pejorative towards their patients who are living with obesity?

John Dixon: Yes, we've found that in a number of surveys done. We have reviewed the literature and found that to be the case. And their views don't differ all that much from the general community. There is a pejorative view about those who are severely obese, and even those who have the obesity problem, the more severe forms of it, have the same view. In other words, they sometimes feel not worthy of having appropriate consideration and therapy for a disease that they believe themselves that they must have brought on themselves.

Damien Carrick: But do you think that situation or that observation that you're just making applied in this case? I mean, we don't really know, do we?

John Dixon: No, we don't know. I'm talking in generalisations. We don't know that it happened in this case at all, but I would say broadly that while medical practitioners and other health professionals have obligations to identify and treat things such as heart disease and diabetes and high blood pressure, there is no similar emphasis on properly assessing and managing people with severe obesity, particularly today when we have options available that can really make a difference.

Damien Carrick: So what do you see as the take-home message from this decision?

John Dixon: I think it's a wake-up call to medical practitioners to understand better the complexity and problems of severe obesity, recognise that it can cause damage, organ damage and cancer and shorten life, and recognise that we do have the availability of therapy that can change this, and in the future we'll have more therapies that can do something about it. And I think we haven't developed that feeling that, well, we understand when to refer. I don't think the average general practitioner or specialist in Australia knows when to refer a severely obese person for further assessment and for more intensive therapy.

Damien Carrick: Associate Professor John Dixon from the Baker IDI Heart and Diabetes Institute in Melbourne.

That's the Law Report for this week. Thanks to producer James Pattison and audio engineer this week Matthew Crawford.

And do go to our website at abc.net.au/radionational/lawreport, and do add to those comments, there have been quite a lot of them about our stories this week. I'm Damien Carrick, talk to you next week with more law.


Barbara McDonald,
Associate Professor, University of Sydney School of Law
Dr Adrian Sheen
Penrith GP and president of Doctors Action
Associate Professor John Dixon
Head of clinical obesity research at Baker IDI Heart & Diabetes Institute in Melbourne


Damien Carrick
James Pattison

Comments (10)

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  • ateday :

    18 Feb 2013 8:04:07pm

    Are people that stupid?

  • mbono :

    19 Feb 2013 8:51:10pm

    Preventative health measures begin with the individual, not with health professionals or the 'health system'. My sympathies lie with the GP. - Twitter: @mbono

  • Stuart :

    20 Feb 2013 2:25:03am

    The headline should read:

    "Totally irresponsible morbidely overweight man, who suffers health problems from years of gross neglect to his own body, continues selfish over-indulging trend by blaming doctor for his problems... and WINS"

    Bless our great land. We can eat infinitely and blame endlessly.

  • crank :

    20 Feb 2013 9:05:12am

    The reign of idiocy in the Anglosphere resulting from the proliferation of lawyers looking for marks to turn over adds a tragi-comic note to the end-stage insanities of neo-liberal capitalism. When everybody is out to extract wealth from others, by any means at hand, the bankster, the rentier, the parasite, the predatory legal foot-pad, the shonky businessman, the 'entrepreneur' in human organ trafficking -all the panoply of human greed and indifference to the fate of others, runs amuk. 'The war of all against all'.

  • appalled :

    20 Feb 2013 10:46:20am

    This is not a logical decision. Bariatric surgery reduces people's weight, on average, by half their excess weight. On other words, for a morbidly obese man, even if the surgery had worked (which is a further assumption - if people continue to eat sweets, soft drinks, milk shakes, icecream and alcohol [consumption of which is not impaired by a lapband procedure] they will not lose weight) he would still have been obese with its health consequences. It's not some sort of magic procedure that automatically confers thinness and reverses all the existing damage from years of obesity.
    The man's lifestyle choices were his alone to make, and therefore the consequences were his own responsibility. Apart from geese being fattened up for fois gras, no one forces you to eat......

  • Ever hopeful :

    20 Feb 2013 12:47:32pm

    Pathetic decision by the law.

    And A/Prof Dixon must have developed his opinion in some parallel universe, certainly not from a realistic appraisal of a) the responsibilities of GPs, b) psychology between doctor and patient.

    Additionally, bariatric surgery carries a very great responsibility on the patient's part to monitor their diet for the rest of their lives, because our uptake of nutrients is affected by surgery. This patient had insufficient self-control over his intake already.

    Yep, less lawyers and the world would be a better place.

  • helen :

    20 Feb 2013 5:37:01pm

    I noted that the fat man was offered solutions to his problem. He said, no thanks, tried them, they don't work.

    So his doctor left it there. I imagine he was not too concerned about a patient whom he had labelled (pejoratively) as lazy and a glutton. As well, he probably labelled him uncooperative and left him to stew in his own juice. Doctors like their patients to be obedient, and grateful with it.

    In my case, after nine years of increasing energy output and decreasing food intake,I eventually attained the OBESE category and still the doctor was uninterested: "Is it really that important helen?"

    Yes. It obsesses me. And it puts my health at risk. And he did nothing to help me. I am very persistent and went to a specialist. He suggested I do a sleep apnoea test(!)

    I listen with disgust to rosemary stanton et al doling out the old verities about eating healthy food in healthy amounts and having a regular exercise regime. I do. But I think john dixon is right - doctors don't really engage for a number of reasons. However, I also have the hope from his comment:"We do have the abailability of therapy that can change this".

    I have always had the message from my doctors that there is nothing that can be done for metabolic syndrome/pathological obesity. There was, and I am with huge difficulty losing some of the weight I have watched obliterating my frame over the years.

    But I also recognize the fat man was quite genuine when he declined the doctor's suggested remedy. I too have had to go through the hoops of a doctor's preferred medication and testing. Like the fat man, I do know what I am talking about when I decline suggested treatments and testing. It would be nice if doctors accepted that their patients opinions are worthy of consideration. It's that word: respect.

    Sleep Apnoea! I ask you.

    fat lady moi.

      • JL :

        03 Apr 2013 3:53:19pm

        I don't understand why you are so upset about a sleep study being requested.

        Sleep apnoea is made much worse by obesity, and sleep apnoea is associated with insulin resistance and type 2 diabetes (and I believe weight gain). It perpetuates and exacerbates obesity.

        Treating the sleep apnoea can improve metabolic parameters, and it definitely improves daytime fatigue, both could help along your weight loss.

        I am not an expert on this particular legal case but it sounds like the doctor was applying non-proven therapies to de-toxify, as the patient blamed his problems on toxin exposure. Folie a deux!

        My personal viewpoint is that patient autonomy rules, and the doctor's job is to assess and advise. Days of paternal medicine are over. Bad decision by the court.

        just a GP

  • Nathan :

    25 Feb 2013 5:38:18pm

    Would like to echo "Ever Hopeful"s comments - note today's news about woman who died after bariatric surgery.

  • tom hardy :

    26 Feb 2013 5:55:35pm

    What an appalling decision and penalty against the doctor , who basically has to take all the responsibility for his patients lack of effort at his prior directions . I was unaware that judges had more medical knowledge than a full doctor, who is an expert in his own medical field. So it appears all the morbidly obese people in the country that have some threatening disease can now possibly sue their doctors if some complete possible remedies were not followed.On the other hand it's great for everyone who doesn't take responsibility for themselves. As of now they could be in for a big cash windfall after they find a scapegoat to pay for it.