The New South Wales Supreme Court recently awarded a morbidly obese man $364,372 in damages for developing terminal liver cancer as a consequence of his doctor’s failure to refer him for bariatric (gastric banding) surgery.
The decision has reignited the war of words between courts and medical practitioners, including claims of defensive medical practice and spiralling medical costs.
It also raises the question of whether doctors can expect their patients to take responsibility for their own health. Or does every doctor or health-care worker need to repeat general health warnings, even if the risks are obvious?
In the early 2000s, medical lobbyists successfully campaigned for negligence law reform, claiming courts were “pro-plaintiff”, with “exorbitant” damages awards increasing insurance premiums and forcing doctors out of practice. The Ipp Review into the “insurance crisis” led to widespread legislative reform.
Medical negligence requires that defendant doctors failed to respond to risks they should have foreseen, in the way a reasonable person in their position would. It also requires that, on the balance of probabilities, their conduct caused the harm suffered by the plaintiffs. Proving causation requires both that the defendant’s conduct was a “necessary condition” of the harm, and that it is appropriate for the defendant’s liability to include the harm.
Almario v Varipatis
In the recent Supreme Court case, plaintiff Luis Almario had a long history of health complaints including abnormal liver function at the time he started consulting doctor Emmanuel Varipatis. Some of his problems were aggravated by his obesity.
Other doctors had counselled Almario about his weight and referred him to specialist weight management programs – with mixed success – prior to his first visit to Dr Varipatis.
Almario’s abnormal liver function increased his risk of developing cirrhosis, in turn increasing the risk of liver failure and liver cancer, all of which he subsequently developed.
Almario sued, claiming his liver cancer resulted from the doctor’s failure to address his weight problem. Although the evidence showed Varipatis discussed the plaintiff’s weight with him during their relationship, the court found the discussion had not directly associated failure to lose weight with progression of the liver disease to cancer. And advising Almario to lose weight, without providing further support, was insufficient.
The doctor’s conduct fell short of “a reasonable person’s” in three ways: failure to refer Almario for assessment for gastric banding surgery; failure to refer him to specialist weight loss support services; and failure to refer to a specialist hepatologist as the patient’s liver condition deteriorated but before he developed cancer.
Almario’s initial claim for damages - $569,332 - was reduced by 20% for his contributory negligence in failing to lose weight, but overall the claim succeeded.
Varipatis was only found liable for his negligent failure to refer Almario for bariatric surgery assessment, which was a “necessary condition” of Almario’s progression from liver disease to cancer, in spite of the possibility that Almario may not have been suitable for surgery, may not have complied with the post-operative requirements, or may not have been able to afford the procedure.
Expert witnesses were divided as to whether bariatric surgery, then a relatively new and untested procedure, was sufficiently recognised as a treatment option for the plaintiff’s type of liver disease that a “reasonable person” in Varipatis’s position would have considered it .
What does it mean for other doctors?
The decision imposes on doctors the burden of exploring every possible treatment option which might have benefits to their patient, regardless of its likelihood of success. It also requires that they do more than just counsel patients about lifestyle modifications – how much more, or what would be sufficient in the case of an obstinate patient, is not clear.
Obvious risk areas include counselling about smoking, alcohol use, and other drugs. Presumably it would also require doctors to follow up when patients are provided with referrals to specialists, other clinics, or for tests such as imaging or pathology, to ensure they keep their appointments. The resourcing burden of practising this type of defensive medicine is enormous, and it will substantially reduce the affordability of health care.
Patients have the right to make their own decisions, with those decisions being respected by health-care providers and the law. Likewise, patients cannot abdicate responsibility for the consequences of their decisions. Doctors should not be forced into policing the choices of their patients. To do so denies patient autonomy, and forces doctors into the role of nannies or health police.
For a GP researchers perspective on this issue, read Are GPs doing enough to help patients lose weight? by Nicholas Zwar and Mark Harris