Referrals and the extent of a doctor’s duty: Court of Appeal overturns Supreme Court decision

In brief - Medical practitioners do not need to undertake futile steps in the exercise of their duty

On 18 April 2013, in the case Varipatis v Almario [2013] NSWCA 76, the NSW Court of Appeal overturned a controversial decision of the Supreme Court which found that a general practitioner who failed to re-refer a morbidly obese patient to an obesity clinic had breached his duty of care.

Morbidly obese patient ignores advice to lose weight

The plaintiff, Mr Almario, attended Dr Varipatis, general practitioner, from August 1997 to February 2011, during which time he suffered from various illnesses including morbid obesity, elevated liver function test results and liver disease. The plaintiff was told that he needed to lose weight to prevent the liver disease progressing to cirrhosis of the liver.

Dr Varipatis referred the plaintiff to Dr Yates, physician, who in turn referred the plaintiff to an obesity clinic. Both doctors counselled the plaintiff of the importance of losing weight. The plaintiff decided not to act on the referral as he had previously lost thirty kilograms attending the clinic which, in his opinion, had not improved his health. The plaintiff developed cirrhosis in June 2001 and liver cancer in 2011.

Plaintiff argues that doctor should have taken steps to treat his obesity

At trial, the plaintiff successfully argued that Dr Varipatis failed to take steps that, at the time, a reasonable general practitioner would have taken to treat his morbid obesity and thus prevent his liver cancer. He was awarded over $350,000 in damages.

Did the doctor breach his duty of care? Would the patient have lost weight?

The primary issues on appeal were:

• Whether Dr Varipatis breached his duty of care in failing to refer the plaintiff directly to an obesity clinic
• Whether referral to a bariatric surgeon (with a view to gastric banding) was a necessary exercise of a general practitioner's duty of care in 1997-1998
• Whether the plaintiff would have lost the necessary weight had Dr Varipatis advised him about the potential for this to cause his liver disease to progress to cirrhosis
• Whether the plaintiff would have lost the necessary weight had Dr Varipatis referred him to an obesity clinic

Plaintiff had demonstrated he was unwilling to lose weight

In respect of the first issue, the Court observed that although Dr Varipatis had not referred the plaintiff to the clinic, he had advised and encouraged the plaintiff to act on the referral of Dr Yates. Based on the expert evidence, there was no further obligation or power for Dr Varipatis to take additional steps. Specifically, he was not in breach in failing to write a further referral when the plaintiff had demonstrated he was unwilling to attend the clinic or manage his obesity.

In respect of the second issue, the expert evidence did not establish that a general practitioner in the position of Dr Varipatis would have referred the plaintiff to a bariatric surgeon in 1998. At the time, it was a high risk, uncommon procedure.

The contention inherent to the third issue was not supported by the evidence. There was overwhelming evidence by numerous doctors that the plaintiff had been advised of the need to lose weight in order to prevent further liver damage.

Finally, the plaintiff could not establish that had Dr Varipatis referred him to an obesity clinic, he would have attended and lost weight. The same had not occurred upon his referral by Dr Yates. Accordingly, causation was not established.

Patients who refuse to act on specialist referrals cannot then blame their doctor

Given the original decision caused significant concern for the insurance industry and essentially promoted "defensive" medicine, the Court of Appeal’s ruling is a positive one.

As Basten JA observed in his conclusion, the decision in the Court below attracted the proposition that it was necessary in the exercise of their duty for medical practitioners to undertake futile steps. It placed an impractical burden on the medical profession by suggesting that patients who refuse to accept specialist referrals may later take action against their general practitioners for breach of their duty of care.