Luis Almario v. Dr Emmanuel Varipatis

The NSW Supreme Court medical negligence case of Almario v Varipatis, a case about how one general practitioner treated a patient’s serious liver problem caused by obesity, created a broad media forum about the issue of weight and growing obesity within our society generally. The various value judgments and opinions touted played a considerable role in the judicial process. The case therefore illustrates both salient issues confronting general practitioners and the interaction of such issues with the judicial process.

Luis Almario was 53 years old when he first consulted Dr Emmanuel Varipatis in August 1997. At that Time Mr Almario weight 140 kilograms. By the time he was diagnosed with micronodular cirrhosis if the liver and liver failure on 23 June 2003, his condition was untreatable and irreversible. He subsequently developed terminal liver cancer, in the form of hepatocellular carcinoma. The progression of Mr Almario’s condition had its origins in non-alcoholic fatty liver disease (NAFLD), which is more likely to develop in people who are morbidly obese.

At trial, it was held that Dr Varipatis had an obligation to act in these circumstances to try and combat the risks associated with Mr Almario’s obesity. On appeal to the Supreme Court, that judgment was set aside with the Court essential holding that Dr Varipatis did all that was required of him in the circumstances.

Over the fourteen years of their doctor-patient relationship, Dr Varipatis referred Mr Almario to specialists, ordered investigations, and provided advice and treatment for a range of conditions. Dr Varipatis, who had a special interest in environmental and nutritional medicine, treated Mr Almario with the view that his health problems were a consequence of his workplace exposure to toxic chemicals. In legal proceedings against Mr Almario’s employer, that was held to not be the case.

It is well established that the duty of a medical practitioner is to apply the standard of care of the hypothetical ordinary skilled person exercising and professing to have the special skill in question. So Dr Varipatis’ duty was to exercise the standard of care of an ordinary skilled general practitioner. That duty applied regardless of Dr Varipatis’ special interest in environmental and nutritional medicine. His conduct needed to be judged not by reference to what was customary or usual practice for GPs with that special interest, but by reference to the functions of a regular GP. Furthermore, Dr Varipatis’ duty was an ongoing one because Mr Almario had a persistent health problem and regarded Dr Varipatis as his GP. To discharge the duty, Dr Varipatis needed to tale steps to treat and manage his patient’s condition, a deteriorating liver, and advise him in relation to differential diagnoses and treatment and management plans until that health problem was resolved.

Dr Varipatis gave evidence that he advised Mr Almario to lose weight throughout their 14-year clinical relationship. The question was whether this advice, if indeed rendered, was enough to discharge the duty that Dr Varipatis owed to Mr Almario. It was held that in the circumstances of the case that Dr Varipatis did not have the obligation or the power to do any more than proffer the advice that he did. This was particularly so in circumstances where Mr Almario had historically refused to take the firm advice of his treating practitioners. A further referral, it was held, would have been of no consequence. This overturned the trial judge’s finding that Dr Varipatis failed to discharge an obligation to refer Mr Almario to a heptologist and other specialists much earlier than he did.

For the trial judge, the additional question of causation arose. Would, as required by Section 5D(1) of the Civil Liability Act 2002 (NSW), the referrals have prevented the continued deterioration of Mr Almario’s condition and ought Dr Varipatis be held liable? These questions were answered in the affirmative by the trial judge, who found that a referral to a heptologist but moreover to a bariatric surgeon would have, on the balance of probabilities, prevented the continued deterioration.

The trial judge ordered Dr Varipatis to pay Mr Almario $364,372.48 in compensation. This award, as indicated, was overturned by the Supreme Court of NSW in the Court of Appeal. The Court of Appeal did not agree that Dr Varipatis had breached his duty of care to Mr Almario, and as a consequence did not agree that he was negligent. The Court of Appeal’s judgment was perhaps inspired by a common view that obesity is a condition of disrepute, responsibility for which rests on the victim. In essence, the Court of Appeal held that Dr Varipatis needed to do no more than tell Mr Almario to lose weight. Yet the judgment of the trial judge proceeded on the basis that Mr Almario’s obesity was a complex medical condition, which could not necessarily be treated as a simple matter of “losing weight”. The intervention of specialists in medical investigations and surgeries could well have been required and may have been essential in saving Mr Almario from a fatal disease. The differing approaches of the trial court and the Court of Appeal illustrate divisive opinions within society towards obesity. The difference of opinion demonstrated within the judgments, while denying Mr Almario compensation, may have the benefit of contributing to society’s evolving attitude to obesity as a disease. It is an area in which medical negligence law is likely to develop further as the disease becomes increasingly prolific.