Sally Gleeson, lawyer for obese patient Louis Almario appears on 7:30 Report commenting on doctor’s responsibility to treat obese patients and despite the outcome of the High Court Appeal that the case still has significant implications.

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LEIGH SALES, PRESENTER: Australians are fat and getting fatter at one of the fastest rates in the industrialised world, but can you blame your doctor for failing to treat you for being overweight?

A Sydney man who successfully sued his GP for failing to treat his obesity has lost a bid to be heard in the High Court after the GP had the original judgement overturned.

The case raises intriguing questions about personal responsibility versus medical duty of care, as Matt Peacock reports.

MATT PEACOCK, REPORTER: Luis Almario, former Colombian journalist and political refugee, is a dying man. He has liver cancer and now lives on borrowed time.

LUIS ALMARIO: Me (inaudible). Me waiting for coming finito.

MATT PEACOCK: You’re waiting to die?

LUIS ALMARIO: Exactly, yes.

MATT PEACOCK: His cancer’s a direct result of his obesity, weight that he battled hard to shed. It could’ve been surgically treated, but it wasn’t, for which he blamed his doctor.

SALLY GLEESON, TURNER FREEMAN LAWYERS: Mr Almario had a long history of attempting to lose weight. He had lost 20 kilos at one point. He had lost 40 kilos at one point. He had used various types of dietary supplements and he had failed. He was unable to consistently keep that weight off. And because of that, his liver function test became abnormal, his liver deteriorated and now he’s got liver cancer, which is in effect killing him.

MATT PEACOCK: Last year, Mr Almario hit the headlines after successfully suing his GP for failing to refer him for weight loss treatment. His $360,000 win would provide for his wife, Elvira, and two teenage daughters after he was gone.

ELVIRA ALMARIO: How do you feel when you know that you win in the court? How did you feel?

LUIS ALMARIO: Happy. Happy.

ELVIRA ALMARIO: Relief. It’s like relief.

LUIS ALMARIO: For me, knowing (inaudible) money (inaudible). Or my family, my kids.

ELVIRA ALMARIO: He’s thinking for the children.

LUIS ALMARIO: Children. For my wife.

MATT PEACOCK: At the time, the idea of a fat man suing his doctor was ridiculed.

CHANNEL SEVEN JOURNALIST: A lot of people would look at you, note that you’re obese and say, “Why should it be the doctor’s fault?”

DUNCAN GRAHAM, LAWYER: That’s the way it was portrayed on the media, that this is about a fat guy who’s fed his face and he’s only got himself to blame for his liver cancer, and that’s wrong.

JOHN DIXON, OBESITY RESEARCH, BAKER IDI INSTITUTE: There’s a blame game and it’s the person’s fault and it’s their lack of responsibility. Nothing could be further from the truth. It’s really very much tied up with our current environment.

MATT PEACOCK: Australians generally are fat and getting fatter at a rapidly increasing rate.

JOHN DIXON: We have a massive problem with obesity. Over the last 30 to 40 years, it’s trebled from eight per cent to nearly a quarter of all adults and it’s getting worse.

MATT PEACOCK: There’s still a vigorous debate about why exactly Australians are putting on weight. Sometimes the cause is genetic and fatness for life is often hardwired before or soon after birth because of the mother’s behaviour.

Sugar intake, junk foods and soft drinks have been targeted by this WA Government advertising campaign.

For those with life-threatening obesity, weight loss surgery is a proven and often essential treatment, believes Professor John Dixon.

JOHN DIXON: People are in hospital just for a day or two. It’s done using keyhole surgery. It’s done quite quickly. What they all do is they suppress appetite. People are less hungry. They can have a small meal afterwards, and for a long time, for years and years, eat small meals that satisfy.

MATT PEACOCK: It’s this treatment though that Luis Almario didn’t have. His liver deteriorated and the cancer that’s now killing him developed.

SALLY GLEESON: What in fact the case was about was a man with a life-threatening condition that needed to be treated.

ELVIRA ALMARIO: If they told us that we go to those program, of course I’m going to take my husband there. Who … (pauses) … Who wants to lose their husband?

ERRYN ALMARIO: Why wouldn’t a person follow a doctor’s advice if it would be able to prevent something like A disease like cancer from happening? Because nobody in their family would want someone to have cancer.

SIMON WILLCOCK, DIRECTOR, AVANT INSURANCE: We can’t be responsible for every decision that the patient makes during their life, whether they chose to smoke 40 years ago, whether they haven’t looked after their weight, whether they’ve ignored some protection advice. What we can be responsible for is making sure that they’re informed.

MATT PEACOCK: His GP argued on appeal that Mr Almario had been warned to lose weight and his payout was overturned, a decision the GP’s insurer, Avant, believes was crucial for the profession.

SIMON WILLCOCK: Potentially this could’ve unleashed a floodgate of litigation which would’ve made medical indemnity insurance probably non-viable in Australia. It was also very important for the GP community because many GPs felt that they would’ve had to revert to practising very defensive medicine which at the community level becomes very expensive medicine.

MATT PEACOCK: Last week, the High Court declined leave to reverse the appeal, leaving Luis and his family penniless awaiting his death.

So where does that leave you?

LUIS ALMARIO: Nothing. No money for my children. No money for me. Me finito.

ERRYN ALMARIO: We’re practically brought back to the start, basically. There’s nothing else we can do about it.

MATT PEACOCK: And you’ve watched this as you’ve been growing up. It must’ve been hard.

ERRYN ALMARIO: Yeah, it has. But there’s nothing we can do about it, so, the only thing we can do is live with it.

MATT PEACOCK: While it’s too late now for Luis Almario, his lawyer warns that his legacy should last.

DUNCAN GRAHAM: It’s a wake-up call to society and also the medical profession. I mean, the case is really about changing people’s perceptions about obesity. It’s a disease. You need to take it seriously and do something pro-active about it.

LEIGH SALES: Matt Peacock reporting.