Varipatis v Almario (2013) NSWCA 76 - 18 April
The NSW Supreme Court, Court of Appeal, has overturned a
decision by a trial judge to award damages of more than $360,000 to
Almario, an obese man. The trial judge found that his GP was
negligent in failing to refer him for specialist treatment for his
life-threatening morbid obesity.
Almario had been a patient of the GP from 1997 to 2011 and had
been morbidly obese at all times. He also suffered numerous health
problems and subsequently developed terminal liver cancer.
Almario argued at trial that the GP should have done more to
treat his morbid obesity and to prevent the development of liver
The trial judge found the GP had breached his duty of care to
Almario by failing to refer him to:
A bariatric surgeon by 30 July 1998; or
An obesity clinic or endocrinologist; and
A hepatologist by the end of September 2000.
He was awarded damages in excess of $360,000. The GP appealed to
the NSW Court of Appeal.
The Court of Appeal held upheld the appeal stating, amongst
other things, that:
"...a general practitioner may be obliged in taking
reasonable care for the health of a patient to advise that weight
loss is necessary... (and encourage acceptance of) appropriate
referrals (but) the plaintiff's conduct did not reveal a
willingness to use available services to lose weight. The appellant
had referred the plaintiff to Dr Yates, who had in turn referred
him to an obesity clinic. The plaintiff did not act on Dr
Yates' referral, despite the appellant counselling him to do
".....the evidence was overwhelming that he had been
given advice, not merely by the appellant but by numerous doctors
that he needed to lose weight to save his health."
"The plaintiff did not establish that he would have
accepted a referral to an obesity clinic, or obtained the resulting
benefits, having failed to act on the previous
"The duty of care stopped short of requiring an
exercise in futility."
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