How Far Does a Doctor’s Duty Extend?

We all know that our doctors and other medical treatment providers owe a duty of care as their patients.  Generally speaking, in variable terms their duty is to treat us at a standard one would expect from a competent medical practitioner practicing in their field.

Doctors are obliged to exercise competent professional skill in diagnosing and treating the problem for which we have consulted them but how far did that duty extend?  This difficult issue was considered recently in the case of Varipatis v Almario [2013] NSW CA76.

Essentially, Mr Varipatis alleged that the duty of care owed to him by his general practitioner included a duty to refer him for gastric bypass surgery in an attempt to control his obesity which was in turn affecting the function of his liver.

A summary of the case follows, however, essentially whilst Mr Varipatis succeeded in his claim in the Supreme Court the medical insurer appealed to the Court of Appeal who were ultimately uncomfortable with the heavy burden of the duty of care imposed on the general practitioner by the decision of the Supreme Court.

There was never any dispute that the general practitioner had discussed Mr Varipatis’ obesity on many occasions, provided him advice in relation to controlling his weight and suggested referral to obesity clinics.

The Court of Appeal ultimately found that the duty of the general practitioner had been discharged by him providing advice in very clear terms that Mr Varipatis was required to lose weight to facilitate his general good health.  The Court of Appeal did not impose such an onerous duty of care on the general practitioner as would ultimately be considered an exercise in futility.

 

Doctor’s Duty to Refer Obese Patients into Treatment – Varipatis v Almario [2013] NSWCA 76

In August of 2013, the NSW Court of Appeal considered a case that looked to broaden the duty of general practitioners (gp) in referring obese patients into further treatment. Briefly, the facts of this case are that Mr Almario had a long history of obesity related illnesses. Mr Almario had previously been referred to an obesity clinic by another doctor, however, he was unable or unwilling to complete the program. After this, the respondent had continually declined to be re-referred to an obesity clinic and the appellant was aware of this. At the time of the hearing, Mr ALmario was suffering from a liver condition that he claimed could have been avoided had the appellant referred him into the appropriate treatment.

At trial it was found that Dr Varipatis had breached his duties in 1) not referring the respondent (Mr Almario) to a bariatric surgeon; 2) not referring the respondent to an obesity clinic; and 3) not referring the respondent to a liver specialist to treat his condition.

 

Was a referral for surgery necessary in the exercise of a general practitioner’s duty of care?

A key aspect of the appeal was what a general practitioner would have done in the circumstances in 1998, as there have been significant developments in bariatric surgery since then. On the basis of the expert evidence the appeal judges concluded that it was not reasonable to expect a general practitioner in 1998 to refer a patient for bariatric surgery due to the evidence that bariatric surgery was, at the time, dangerous, not well understood and essentially a last resort procedure (at [51], [54], [59] and [109]).

Should Dr Varipatis have referred the respondent to an obesity clinic?

In examining the previous conduct of the respondent, the court found that merely a week prior to seeing Dr Varipatis, he had been referred to an obesity clinic by another doctor but declined to go. Further, he had been to an obesity clinic in the past but dropped out of the program. In discussing causation, the court found at [33] that on the evidence there was “no plausible ground for concluding that, had the appellant sought to refer the plaintiff to an obesity clinic…that the plaintiff would have acted on the referral or, if he did, would have lost any weight.

The court did discuss what comprised the practitioner’s duty in this situation, saying at [38] that general practitioners should discuss in unequivocal terms that weight loss is necessary to the maintenance of their health, to discuss ways in which this may be achieved and to offer and encourage acceptance of referrals into treatment. However, Basten JA clearly stated that this duty falls short of an exercise in futility.