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?
Medical negligence
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
James Kean
logged in via Facebook
In wonder how many people are considering suing their guidance counsellors from school now?!
Ted Black
Retired
There must be more to the reported case with Dr Varipatis than what has been reported in the media. It seems the patient was desperately seeking someone else to solve his own problems, and in many similar cirumstances, people chase new and often unproven (not sure in this case) treaments. There was a recent report on the ABC website saying that there might be many side-effects to this gastric banding procedure and that it's not just the be-all and end-all some believe. For the court to be so sure of the position, as I said, surely we haven't seen the full story.
rory robertson
rory robertson is a Friend of The Conversation.
former fattie
I agree, Wendy, that doctors are not really to blame. The problem is that doctors generally know as much about reversing obesity as their patients: Not much. The reason for that seems to be that nutrition advice took a serious wrong turn in the 1970s: unfortunately, the resulting low-fat, high-carb, pro-sugar diet looks to have been the main driver of ballooning global rates of obesity and diabetes (http://www.nytimes.com/2002/07/07/magazine/what-if-it-s-all-been-a-big-fat-lie.html?pagewanted=all…
Read morerory robertson
rory robertson is a Friend of The Conversation.
former fattie
Opps, sorry: that's "an inverse relationship" and the workig link is http://www.australianparadox.com/pdf/22Slideshowaustraliangoestoparadoxcanberrafinal.pdf
Dr Maria Hill
logged in via LinkedIn
Doctors need to be as accountable for their advice and treatment as other professionals . There is a "duty of care" after all. Unfortunately, not all patients are informed of the full implications of their test results. If, for example people were made aware that even slightly raised GGT - could eventually lead to liver disease/cancer if action isn't taken or that fat cells produce oestrogen that is linked to a host of cancers - they would be in a position to make informed decisions about their health. Seeking medical advice is a sensible course of action when you have a serious health problem and it is the GP's responsibility to refer you to the appropriate specialist, if they can't treat the disease, and be prepared to admit to the limit of their knowledge.
Trevor McGrath
Pharmacist Hobby:climatology
I agree Dr.
I would like to see, but how would you feel if you were given the legal right to sue your Pts. for non-compliance. Say every doctor who advised the patients to stop smoking and drinking could sue and win if patients had not stopped before their next visit to any doctor. After all it would only take 5 minutes to explain that almost every condition known to woman/man is exacerbated by smoking and drinking (drinking not so much)..Very easy money …after all we all know the chance of someone giving up at the request of someone else. Cheers
Sue Ieraci
Public hospital clinician
Here's Mr Robertson again, perpetuating the myth that the nutrition profession promoted a "pro-sugar diet". They never did, and never will.
If individuals misinterpreted "reduce your saturated fats and balance with complex carbohydrates" into "consume as much added sugar as you want", should the nutrition profession be held accountable for their error?
Sue Ieraci
Public hospital clinician
Dr Maria Hill - I guess you are not a medical practitioner, because your assertion that "even slightly raised GGT - could eventually lead to liver disease/cancer" is simply not true.
The most common causes of slightly raised GGT, in the absence of a rise in the other hepatic enzymes, are excess alcohol or occasionally gall bladder disease (the latter more commonly associated with other raised enzymes).
One of the reasons that the Almario vs Varipatis case is anomalous is that progression from…
Read moreSue Ieraci
Public hospital clinician
I don't think Dr Maria Hill could sue any patients, Trevor. She has a doctorate in military history, not medicine.
Tim Traynor
Rocket Surgeon
What do DMARDs do to your liver in this regard (if anything)?
Mark Amey
logged in via Facebook
DMARDS are not a single class of drug, so some may be hepatotoxic, others not. You need to analyse each drug, and look at it's mode of metabolism and detoxification.
Tim Traynor
Rocket Surgeon
Arava and methotrexate then.
rory robertson
rory robertson is a Friend of The Conversation.
former fattie
Myth? Nope. Sue, the pro-sugar nutrition group I have in mind have:
(i) Campaigned to stop any toughening of the NHMRC's nutrition advice against added sugar (see Slide 11 in the goestocanberra link, above).
(ii) Published the notorious "shonky sugar study" that was used as an intellectual spearhead by the sugar and sugary food industries to attack that planned toughening of official nutrition advice against sugar (see earlier smh link, above).
(iii) Combined with the sugar industry itself…
Read moreMark Amey
logged in via Facebook
If you are taking these medicines, then the information insert in the packet should tell you all you need. Otherwise, there are, literally, hundreds of medicines databases, on line, which are easy to navigate.
Tim Traynor
Rocket Surgeon
Can't you do it for me?
Kim Darcy
Analyst
Putting aside the specifics of this case, one can't help but think the medicos are reaping what they themselves have sowed. They have tried to enrich and empower themselves by claiming authority of all human behaviour. They have made themselves rich by "medicalising" everything from alcoholism to depression to shopping, and now obesity. I don't think many tears will be shed for them.
Sue Ieraci
Public hospital clinician
"the medicos" have "tried to enrich and empower themselves by claiming authority of all human behaviour."
"They have made themselves rich by "medicalising" everything from alcoholism to depression to shopping, and now obesity."
So depression is not an illness, Kim Darcy? Let's send depressed people back into dark stigmatisation, shall we?
For a self-described analyst, not much of an analysis.
Kim Darcy
Analyst
No Sue. It is not that "depression" is or is not an "illness"; it is the complete dominance that medicos have over it. Unless an accurate diagnose of a form of "biological" depression (like melancholia) can be diagnosed, a GP is useless, except to the extent this temporarily down person is so down she can't get out bed. Sure, then the GP can bring the guns out - SSRis, etc - and bring the depressed back to life. But beyond that 'depression' is as much a spiritual experience, which medicos have a hopeless reputation for dealing with. Just have a look at the world's top 10 selling blockbuster drugs. In the 1990s, it was the anti-depressant SSRI, Prozac. Now that Prozac has gone off patent, there is not even one SSRI-type anti-depressant blockbuster drug, let alone in the top 10. But in 2012, TWO of the top were drugs to treat Schizophrenia (Zyprexa and Seroquel). Now, the GPs are pushing anti-schizophernia drugs onto the temporarily low and down in the dumps.
Sue Ieraci
Public hospital clinician
No, Kim. "Medicos" do not have a complete dominance over depression. Many GPs are referring people with mild to moderate depression for CBT with clinical psychologists - medicare funded. CBT is similar in efficacy to antidepressants (if the person is amenable) but much slower and operator-dependent.
Your "analysis" leaves a lot to be desired.
Angela Doolan
University trained Naturopath SCU, Law student UNE
I'm with you on this one Sue. Potentially this sets a terrible precedent for health care providers. How can the doctor be reasonably held 80% responsible and the man only 20% for his health? Hopefully it will be overtuned.
Benjamin Koh
Doctoral Researcher, Complementary and Alternate Medicine at University of Technology, Sydney
I know this is a late response to this thread of discussion, but I totally agree with Sue Iseraci's view about the GGT.
There are several evidence-based reviews on the topic in the medical literature which supports the low risk nature of an isolated raised GGT. Actuarial insurance assessment of the condition also support no addition premiums paid to policy applicants based on this sole criterion alone.
In my non-legal opinion, I similarly feel (based on what we know of the case) that the legal system needs to make more appropriate (and more consistent) judgments. This is especially now that the fact that "...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..." has come to light.
Terry Goulden
Retired
If this patient had been referred for gastric band surgery and suffered complications I am quite sure he would have sued for that. Judges make incredibly poor psychologists and one area that they fail in litigation law is sorting out genuine cases from plaintiffs in search of someone to blame.
It is time that the law returned to everyone taking responsibility for their own choices. Litigation law is too often used to blame someone else for your own poor choices.
Sue Ieraci
Public hospital clinician
Sometimes "someone to blame" means getting some financial help via a practitioner with insurance.
Bring on a fault-free disability scheme!
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Comment removed by moderator.
Mark Amey
logged in via Facebook
One would have to assume that Mr Almario would have noticed that he had become grossly obese, and that this is not generally regarded as being as being healthy. Punishing a GP for not advising a patient that they are specifically at risk of hepatic cancer, as a sequella of their obesity, seems harsh. Would this patient have lost weight through gastric banding, or other methods if he had received this advice. I seriously doubt it.
Martin Quirke
Architect, Research Doctoral Candidate
Had this been a case of the patient asking specifically for such a referral, but been refused by the doctor, then penalty for the consequence might be reasonable.
The doctor, with his own 'reasonable man' test probably assumed that the patient would take responsibility for his own health and any actions / inactions associated therewith.
For the doctor to be penalised when the patient doesn't seem to have taken responsibility for their own actions is a worrying precedent. A precedent effectively where laziness is rewarded.
What will we have next? Students not bothering to study, yet suing their teachers when they consequently fail their exams?
Greg Boyles
Lanscaper and former medical scientist
Perhaps doctors should consider refusing to see or treat obstinate patients who wll do little or nothing to control their weight.
Meg Thornton
Dilletante
Greg Boyles - they're trying that approach in the USA, where doctors are telling overweight patients not to come back until they've lost weight. No matter what it is the patients are seeing the doctor for, and no matter how tangentially their weight might be related to the condition in question.
As someone who is fat (I'm not going to use terms like "overweight" or "obese", because they're frankly unscientific - over WHOSE weight, for crying out loud), and who has spent over ten years of her…
Read morerory robertson
rory robertson is a Friend of The Conversation.
former fattie
Meg, I'd be surprised if you did not find Gary Taubes's "Good Calories, Bad Calories" - a.k.a. Good Science, Bad Science - a fascinating read (if you have not read it already).
Sue Ieraci
Public hospital clinician
It seems likely that this anomalous decision will be overturned on appeal.
If not, it would have wide impact as a legal precedent: would health care providers also be held to account for people failing to stop smoking, or excessive drinking? How about counselling for genetic disease?
Benjamin Koh
Doctoral Researcher, Complementary and Alternate Medicine at University of Technology, Sydney
Cynically, perhaps all consult rooms (including in emergency departments) should have a "disclosure/consent form" for patients to fill-in.
The form should include every listed medical/surgical/paediatric/O&G condition known to date plus obesity/smoking/alcohol/mental health issues. Or to be "practical"... only list the top 100 diseases ("medicalised" or otherwise).
The patient needs to then indicate whether they want to have a discussion on that condition and tests done for it on top of their presenting complaint. Facetiously, of course, that is what the current legal judgment of the case has implied: that doctors must police patient's choices, known and unknown.
Trevor Simpson
logged in via Facebook
Stepping further back, this appears to be yet another symptom of our increasingly blameless society, where persons are freed from facing the consequences of their choices by placing the responsibility elsewhere. Culturally we support this in a couple of ways.
Firstly, we do so by transferring large sums of money from the taxpayers' pockets to the lawyers' and their clients' via various insurance and compensation processes ("of course you have been gravely wronged and are not responsible for your…
Read moreGuy Hibbins
Medical Officer
The irony here is that liver cancer (hepatocellular carcinoma) is not even one of the cancers which the WHO's International Agency for Research on Cancer (IARC) lists as being definitely or probably caused by obesity.
The reason for this is that none of the epidemiological studies linking obesity to liver cancer adequately controlled for alcohol consumption.
Given the the patient is stated to have had a history of alcohol problems, it would be hard to show on the balance of probabilities that…
Read moreSue Ieraci
Public hospital clinician
Agreed, Guy. The literature says that the progression of non-alcoholic fatty liver to hepatocellular carcinoma is rare.
Susan Ross
Director, Birth Right Aust. Pty. Ltd.
We seem to live in a society that blindly accepts, without questioning, what their doctor says. Well doctors don't know everything!, like teachers are not the best person to bring up our children. I agree, there surely must be more to this story. We need to accept responsibility for our own health and education and always question and shop around for the best information possible, and then make our own decision.
rory robertson
rory robertson is a Friend of The Conversation.
former fattie
In an effort to reduce obesity, the Australian Government - via the NHMRC - recently started advising doctors and everyone else to eat and drink less added sugar, to "limit" their intake of sugary foods and drinks.
Indeed, the NHMRC's new Australian Nutrition Guidelines feature a toughening of official advice against added sugar, encouraging Australians for the first time to "limit" our consumption of added sugar, in the same way we long have been encouraged to "limit" our consumption of alcohol: http://www.australianparadox.com/pdf/canberradietary.pdf
If not doing so already, all GPs should be instructing their overweight patients to eat less added sugar. Doctors' orders!
Perhaps that was already happening, and so the new guidelines will only reinforce an existing standard practice?
Angela Doolan
University trained Naturopath SCU, Law student UNE
Update on this story. The court at first instance has been overruled and the appeal upheld. http://www.smh.com.au/nsw/court-stops-payout-to-obese-man-20130420-2i6wt.html