The NSW Supreme Court decision to overturn damages awarded to an obese man whose doctor failed to refer him for specialist care to help him lose weight has been widely welcomed by medical and legal experts.
The appeal is a win for patient autonomy and will hopefully avoid a rise in doctors practising defensive medicine: ordering more tests, referrals and follow-ups for fear of litigation.
In December 2012, a trial judge found that Dr Emmanuel Varipatis was negligent in his treatment of Luis Almario because he had failed to refer Almario for obesity treatment.
Varipatis provided Almario with medical care between August 1997 and February 2011. Almario was severely overweight during this time and developed a fatty liver, followed by cirrhosis (liver disease) and then cancer of the liver.
Almario claimed the liver cancer could have been prevented had Varipatis referred him either to an obesity clinic or for bariatric surgery. The trial judge found Varipatis negligent for this failure and awarded Almario $364,372.
The judgement has been overturned on appeal, on grounds including evidence that, in 1998, GPs would not have referred patients such as Almario to a bariatric surgeon, and that referral to an obesity clinic would have been declined by Almario, or would not have altered his clinical course.
A matter of ethics
The decision highlights some of the ethical limits on doctors’ duty of care. How far should GPs go in trying to persuade, cajole, manipulate or coerce patients into exercising more, stopping smoking, drinking less alcohol or losing weight?
Beneficence, or the duty to act in patients’ best interest, is the moral foundation of duty of care. Beneficence requires doctors to protect and promote patients’ health interests – to provide information about diagnoses and treatment options, and to encourage decisions that promote good health.
But it can’t be an open-ended duty. Doctors are not morally obliged to ensure patients follow their advice; they cannot follow patients to the supermarket or bottle shop to monitor their purchases, or insist they go to the gym or walk the dog. To do so would be unacceptably paternalistic and completely impractical.
Treating adults as unable to make or implement decisions implies that doctors have all the right answers and the role of patients is just to follow orders. One of medical ethics’ major contributions to clinical practice is mandating the right of patients to make their own decisions.
It doesn’t matter if a decision is foolish or will harm health. Respect for patient autonomy demands that adequately informed, competent patients be free to make their own health-care decisions.
The Court of Appeal established that Almario had been told on multiple occasions that he needed to lose weight to avoid more serious health problems. It also established that, as he had failed to act on a previous referral to an obesity clinic, there was no reason to think that he would have accepted a new referral from Varipatis.
As a competent adult, Almario was free to accept or decline medical advice, whatever the health consequences.
In the way you say it?
Trying to specify the moral limits of doctors’ duty of care is ethical challenging. Documented information about what a patient was told says nothing about the quality of the doctor-patient interaction. Duty of care may well come down to how well the health risks were communicated – and whether the information was delivered with enthusiasm, boredom or resignation.
Indeed, when it comes to difficult-to-control patient behaviours, such as drinking alcohol, injecting drugs, smoking cigarettes or over-eating, our understanding of when and whether patients are making competent decisions is still unclear. And there are no easy answers for practitioners caring for patients with ongoing health problems related to these so-called “lifestyle choices”.
The effectiveness of medical advice may lie in the quality of communication and the doctor-patient relationship, as much as in the content of advice. These are matters the appeal ruling is silent on, but they are the moral fabric of health care.
While the law may be more black and white than ethics, the case isn’t over yet; Almario’s lawyers have indicated that they are considering fighting the appeal. Whatever the outcome of the challenge, the law will always be a blunt instrument for measuring the quality of the relationship between a doctor and a patient.