Jump to content

Duty of care and doctors


  • Please log in to reply
21 replies to this topic

#1 Erma Gerd

Posted 07 February 2013 - 03:14 PM

I've just been reading some articles about this case, and I can't get my head around it at all.

The article in Australian Doctor on the case also says:
QUOTE
The court heard evidence that Mr Almario, who also suffered diabetes and had a history of alcohol problems, had repeatedly failed to follow health and management advice from his previous doctors. He had previously been referred to a specialist weight control clinic but success in managing his weight was only short term.

The key aspect of the court's judgement was that although Dr Varipatis had raised the possibility of bariatric surgery with Mr Almario, the GP was insufficiently "proactive" in managing the patient.

The judge said: “...I am satisfied that given Mr. Almario's previous failed attempts to lose weight by conservative means, a more dramatic or robust intervention was required, especially because of the knowledge of Dr Varipatis about bariatric surgery. And I find that it was negligent for Dr Varipatis not to have made this referral by about the middle of 1998.”

Justice Campbell added: “[It] was not sufficient simply to make the option known to Mr Almario, for what it’s worth, and then leave him to take it or leave it, which I find Dr Varipatis did. More pro-active involvement was required.”


Granted there probably is more to this than reported, but how pro-active do you expect your GP to be? Is it enough that they run through options, or should they be firmly prodding you towards what they recommend?

#2 Ally'smum

Posted 07 February 2013 - 03:28 PM

I would hope there is more to that story, otherwise I would expect the doctor to win on appeal.

My FIL is obese and no one, not his wife, children, doctor, anyone has been able to do anything about it, because he doesn't want to do anything about it.

I think all the doctor should do is outline the risks, provide further information and recommend a course of action. If the patient doesn't follow up that is no one's fault but their own.



#3 Fyn Angelot

Posted 07 February 2013 - 03:30 PM

Isn't that sort of "firm prodding" exactly what has women up in arms about obstetric care?  Why is this any different?

FWIW, I have no problem with a doctor saying, "These are your options, this is the one I strongly recommend," but it's a very fine line to walk.

#4 purplekitty

Posted 07 February 2013 - 03:39 PM

If you look into the GP's background you can see there is probably a lot more to this story.
He was reprimanded in 2009 for treating a patient with renal disease with high dose IV Vit C.
Conditions were put on his practice.

The decision will still possibly have unfortunate repercussions for medical care.

#5 FeralZombieMum

Posted 07 February 2013 - 03:41 PM

I think people have a duty of care to themselves and should not expect to be exempt from taking responsibility about their own health.

If his wife did all the shopping and cooked all his food - is he going to sue her too?


#6 Floki

Posted 07 February 2013 - 04:09 PM

QUOTE
I think people have a duty of care to themselves and should not expect to be exempt from taking responsibility about their own health.

And a Dr should be able to refuse to help a patient if they refuse to be active in the their treatment.

#7 Feral-as-Meggs

Posted 07 February 2013 - 07:12 PM

Interesting case.  The quote says that the doctor suggested weight loss surgery but the Court did not accept that occurred.   The Court found that the doctor did not offer referral to a bariatric surgeon, multidisciplinary obesity clinic or a liver specialist.  It's not a question of forcing him to go.

http://www.austlii.edu.au/cgi-bin/sinodisp...p;query=Almario

The Court found that Mr Almario also contributed to his condition by failing to manage his weight and deduced 20% from his award.  




#8 Elemental

Posted 07 February 2013 - 07:55 PM

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=162435

I think that the appeal will at the very least decrease the payout. The assumption that a gastric band in 2003 would have arrested the plaintiffs liver disease and diabetes presumes both that he would have had no complications from the band and also achieved sustained weight loss - a claim that would be difficult to substantiate given the high rates of band failure in those without the insight to enact behavioural change. The startling claim that had surgery progressed that the diabetes would have been cured I felt most spurious of all, let alone the assumption that obesity is solely a medical condition, for which a patient bears only 20% responsibility, and that the only reasonable solution is WLS. The consequences of this action will be far reaching - if you are obese expect this to be brought up and documented at every visit.

#9 Feral Grey Mare

Posted 07 February 2013 - 07:58 PM

If the patient was not satisfied with the treatment he was receiving could he not have just changed doctors?

#10 Elemental

Posted 07 February 2013 - 08:14 PM

He had had multiple previous doctors who had all referred him for multiple weight loss strategies. I think a great deal of the appeal of the doctor he is suing is that the defendant didn't actually stress that his obesity was at the root of all evil.

#11 sueb31

Posted 07 February 2013 - 08:16 PM

"After the abandonment of the claim in deceit, Mr.  Almario  maintained as part of his negligence case that Dr. Varipatis (erroneously) represented to him that his health problems, including his liver problems, were caused (at least in substantial part) by exposure to toxic substances in the workplace and that the appropriate treatment was to undergo a series of detoxifications. The representations are said to be negligent in that a reasonable general practitioner in Dr. Varipatis' position ought to have known that the plaintiff's health problems, including his liver problems, were not caused by toxic exposure in the workplace, but were due to the combined effects of his morbid obesity and related conditions. Mr.  Almario  says that he relied upon Dr. Varipatis' negligent representations to his detriment by forming the belief that conventional modalities of treating obesity, like dieting and exercise, would not assist him."

This seems the key fact that is not well covered in the articles. That the doctor (allegedly) insisted that his problems were due to toxic chemical exposure, not obesity.

That puts a different slant on it all.

Sue

#12 bakesgirls

Posted 07 February 2013 - 08:34 PM

I think the whole case is ridiclous and hopefully the doctor can appeal successfully.

What ever happened to personal responsibility and accountability? The patient failed to manage his weight. Not the doctor. He needed to be proactive in regards to his own health and body, not expect somebody else to do it all for him.

#13 Freddie'sMum

Posted 07 February 2013 - 09:02 PM

I think the Judge is completely wrong in this case.

Just reading thru the article in the SMH - "it says that Mr Almario was convinced that his health problems were the result of a toxic work environment" (me - paraphrasing).

So even if the Doctor did say to him - you need to look at WLS - or something similar - I don't believe Mr Almario would have believed him anyway.

I really hope the Doctor wins on appeal - otherwise - I fully expect to be weighed and lectured - plus sign some sort of legal waiver form every time I go and visit my suburban GP.



#14 ednaboo

Posted 07 February 2013 - 09:06 PM

QUOTE (sueb31 @ 07/02/2013, 09:16 PM) <{POST_SNAPBACK}>
"After the abandonment of the claim in deceit, Mr.  Almario  maintained as part of his negligence case that Dr. Varipatis (erroneously) represented to him that his health problems, including his liver problems, were caused (at least in substantial part) by exposure to toxic substances in the workplace and that the appropriate treatment was to undergo a series of detoxifications. The representations are said to be negligent in that a reasonable general practitioner in Dr. Varipatis' position ought to have known that the plaintiff's health problems, including his liver problems, were not caused by toxic exposure in the workplace, but were due to the combined effects of his morbid obesity and related conditions. Mr.  Almario  says that he relied upon Dr. Varipatis' negligent representations to his detriment by forming the belief that conventional modalities of treating obesity, like dieting and exercise, would not assist him."

This seems the key fact that is not well covered in the articles. That the doctor (allegedly) insisted that his problems were due to toxic chemical exposure, not obesity.

That puts a different slant on it all.

Sue

Yes it does.  Sounds like this Dr is a quack.

#15 Erma Gerd

Posted 07 February 2013 - 09:59 PM

QUOTE (ednaboo @ 07/02/2013, 10:06 PM) <{POST_SNAPBACK}>
Yes it does.  Sounds like this Dr is a quack.

I don't think it's just that- as a PP said, the plaintiff had been through a number of other doctors who had advised him to lose weight and referred him to dietary programs and even specialist obesity clinics. It sounds like he didn't want that advice- he gave quite conflicting evidence about whether he'd ever been advised to lose weight previously.

Yes, it appears that he did consult the defendant doctor specifically because the patient already believed chemical exposure was the root of his trouble and he wanted the sort of alternative treatment that this doctor provided. But even so, there is evidence that the doctor referred him to specialists that advised weight loss, and on more than one occasion discussed the need for weight loss and the implications of longstanding morbid obesity for the plaintiff's health.

QUOTE
The consequences of this action will be far reaching - if you are obese expect this to be brought up and documented at every visit.

Yes. I think lots of obese patients, smokers, non-vaccinators, poorly compliant diabetics etc are going to be having some difficult discussions with their GPs and probably leaving with reams of unwanted paperwork...  


#16 epl0822

Posted 07 February 2013 - 10:08 PM

The patient is a nutter. You would have to be pretty stupid to not understand the major health risks of obesity. The GP might have a duty of care to patients but individuals themselves have a greater responsibility to take care of their own health. It's not as though the guy had a brain tumour and the GP said, "Oh, just go take some vitamin pills and you'll be alright."

#17 FeralFemboside

Posted 07 February 2013 - 11:10 PM

I think you really need to read the judgement in full from the link on the first page of the thread to get a clear picture. The articles are not good summaries of the complexity of the situation.

It's clear the judge felt the GP failed to actually diagnose that the patient was actually suffering from liver disease and not just theoretically at risk from complications of being obese. The GP had ample evidence to conclude that this was the case and acknowledged that he knew that liver disease progressed to cirrhosis and potentially liver failure or cancer and was irreversible - yet he did not make such a diagnosis or communicate to the patient that weight loss was urgently required. It's really not the media headline of "Doctor did not refer patient for surgery!"

The doctor's defense about these issues (ie he had in fact discussed this with the patient) were not accepted by the judge because there was nothing at all about it in his notes. He also did not monitor the patient's liver function despite knowing that there had been abnormal results for over five years. So fundamentally the adverse judgement was because he failed the test of what a reasonably competent professional would do under those circumstances.

There was no shortage of evidence in front of the doctor that this patient was developing a potentially fatal illness as a result of his obesity, but he didn't diagnose, address or treat it, instead treating other co-morbid conditions. He didn't refer the patient to a liver specialist, instead assuming that a gastro-enterologist was taking care of that aspect, despite also knowing that the patient was no longer seeing that specialist. There was then another two year delay before referring the patient to a specialist who might deal with the liver issues, by which time it can be demonstrated that cirrhosis had started to occur.

So yes, I think he was negligent. Certainly a doctor cannot be required to enforce patient behavior, but they are required to apply their knowledge competently and make diagnoses. If I returned an abnormal pap smear result and my GP didn't tell me, failed to send me on for further testing and follow-up and I then developed cervical cancer I'd feel it was negligent. I don't doubt that this patient was complex because of his multiple conditions, but I agree with the judge that the ball was dropped. The patient might not have been able to prevent his cancer, he may have been refused surgery, he might not have complied with treatment, etc etc but the burden on his GP of writing a referral was tiny and there was a long window of opportunity in which it could have happened.

#18 Guest_~Coffee~_*

Posted 08 February 2013 - 03:36 AM

,

Edited by *SnowFlower*, 20 February 2013 - 04:55 PM.


#19 Erma Gerd

Posted 08 February 2013 - 08:43 AM

I've read the judgement in full, and a major part of the finding of negligence is not about the liver condition, but about failure to sort out the morbid obesity:
QUOTE
Summary of findings about negligence

    I find Dr Varipatis negligent in the following respects:

Failing to refer Mr  Almario  to a bariatric surgeon for consideration of his suitability for surgery of that type by 30 July, 1998;

In the alternative to (a), failing to take the appropriate steps I have described to re-refer Mr  Almario  to an obesity clinic;

Failing to refer Mr  Almario  to a hepatologist, or similarly qualified physician, by the end of September 2000 for the specific investigation and treatment of his liver condition.

It doesn't seem that the GP completely ignored the abnormal liver function- he did refer to a gastroenterologist, and yes, that was apparently an error because the gastro wasn't a hepatologist and didn't deal with that issue, but it was hardly this:
QUOTE
The doctor told him the wrong thing when the truth was staring him in the face. The doctor should have run proper tests, referals etc. Just like saying to someone, you don't have cancer you are fatigued due to xyz, without properly looking at the situation. It's negligence and the judge is correct.


There was a lot of evidence from representatives of the "reasonable doctor" that bariatric surgery was much less accepted as an intervention for this sort of patient at that time. The patient had been referred to obesity services repeatedly in the past (by other doctors) and he told this GP that when they discussed managing his obesity (with relevance to his other health issues, although not specifically his liver condition) and the judge accepted this.

The issue I have is with this:
QUOTE
The question is whether a reasonable doctor in Dr. Varipatis' position would have taken either of those precautions. Before answering that question, I should record that I accept the argument put on behalf of Mr.  Almario  that it is incumbent upon a medical practitioner to do more than merely point out the risks and counsel weight loss. I accept that Dr. Varipatis had the conversation, or one like it, that he says he had with Mr.  Almario  in October 1997. I accept he had the conversation with Mr.  Almario  on 30th July 1998 following the receipt of Dr. Yates' report, but I accept the submission that more was required.


I wonder how much more is required?

When a GP discusses something like weight loss, smoking cessation, reduction of alcohol intake etc with a patient, and offers what they consider some options, and the patient appears disinterested and dismisses them as having been tried previously without improvement, it's a difficult situation.

But I think what this finding means is that GPs can't let a happy smoker go on with it- they have to impress on them the importance of quitting and keep referring them to different solutions, even if the patient is utterly uninterested. Ditto weight loss for people with any weight related complication. Personally I think this is unreasonable.

#20 purplekitty

Posted 08 February 2013 - 10:04 AM

QUOTE (Erma Gerd @ 08/02/2013, 09:43 AM) <{POST_SNAPBACK}>
I wonder how much more is required?

When a GP discusses something like weight loss, smoking cessation, reduction of alcohol intake etc with a patient, and offers what they consider some options, and the patient appears disinterested and dismisses them as having been tried previously without improvement, it's a difficult situation.

But I think what this finding means is that GPs can't let a happy smoker go on with it- they have to impress on them the importance of quitting and keep referring them to different solutions, even if the patient is utterly uninterested. Ditto weight loss for people with any weight related complication. Personally I think this is unreasonable.
And document it every very clearly in the patient's records,again and again. Maybe the patient should sign a document acknowledging what they have been told.
The ultimate endpoint is to refuse to treat those who will not act on the doctor's advice and recommendations, to protect from litigation. Great.

I think from all indications this GP's standard of practice would not pass scrutiny in a general sense but the implications for everybody(including other than doctors) is concerning.

#21 FeralFemboside

Posted 08 February 2013 - 10:08 AM

QUOTE (Erma Gerd @ 08/02/2013, 09:43 AM) <{POST_SNAPBACK}>
I wonder how much more is required?


I thought the judgement was quite clear that the action required from the GP was referral to appropriate specialists / services. Which as the judge said, was a very slight burden to place on the GP.

I do agree that it will be interesting to see if the bariatric surgery findings hold up on appeal given the differing expert opinion.

#22 GenWhy

Posted 08 February 2013 - 11:48 AM

Personally I think it's a very interesting case and hopefully allows a precedent to be set. I was called to give evidence on a Dr who had referred a patient to a surgeon for needing her gallbladder removed. No hospital notes were checked at any stage during the referral process, her admission or during consultation with the surgeon. Surgery began and no gallbladder was found - this was due to it being removed at the same hospital 10 yrs earlier. The patient being of a certain age and unsure of medical terminology did not understand that gallbladder removal was the same as a cholecystectomy. She died 2 days after the operation from the surgeon perforating her bowel in several places whilst "searching" for a gallbladder.

More Drs need to be held accountable for not being thorough or following due process in my opinion. I also agree that the articles on this don't really reflect the issue at hand. The patient was told something different was causing his problem and no doubt saw no reason to believe there was another cause.

Edited due to bad wording

Edited by GenWhy, 08 February 2013 - 11:50 AM.





1 user(s) are reading this topic

0 members, 1 guests, 0 anonymous users

 

Heartwarming prank gives single mum the house she was hired to clean

Cara Simmons arrived at work to clean a large and beautiful house in time for a party planned for that evening. It was soon hers.

Why we should stop telling new parents to 'enjoy every moment'

A few weeks ago, some dear friends of mine had their first baby. As the proud dad texted me a picture I had to fight the natural instinct to say “Enjoy every moment!”

Transgender dad breastfeeds his babies

A transgender man who breastfed his first baby - despite having his breasts removed as part of his transformation from female to male - has now had a second child.

Couple face $1 million medical bill and bankruptcy after babymoon birth

A Canadian couple were slammed with a million dollar medical bill after their daughter was prematurely during their babymoon.

Win one of 5 Little Tikes Cozy Coupe Sport

Australia?s No 1 selling car is now available in a Sports model and we have 5 to give away to some lucky Essential Baby families.

Cigarettes, junk food dominate supermarket sales growth

One in every five dollars spent at supermarkets goes on cigarettes or junk food, according to industry data.

Teacher under fire for breastfeeding in class

There is no doubt mums have a right to continue breastfeeding after they have returned to work, but one teacher in the US has taken it to the extreme.

Video: Baby sniffs beardless dad to make sure it's him

She looks him up and down and then touches his chin, but baby Lindsey still isn't sure this clean-shaven man is her dad.

The tragedy of losing a favourite teddy bear

We were green and uninitiated, perhaps a little naïve when it came to the favourite toy responsibility.

It's possible to workout while pregnant

Medical experts say intense fitness routines can be done safely during pregnancy - if the mums-to-be follow some guidelines.

Baby for Asher Keddie and Vincent Fantauzzo

Fans followed every step of her on-screen pregnancy in Offspring, now Asher Keddie is going to be a mum in real life too.

What parents really want for their kids

Are our hopes, dreams and expectations for our children what they really need?

'I had a feeling something was seriously wrong': the fight for Kaden's diagnosis

Before even giving birth, Katie Myers' maternal instincts warned her something was wrong with her baby.

When your pregnancy causes a relationship rift

Some dads-to-be don't miss a beat when their partner is pregnant; others struggle with a range of issues and can become withdrawn, right when their support is needed most.

Couple uses group photo trick to announce pregnancy to loved ones

Katharine and Kris Camilli devised a clever trick to immortalise their family and friends' reaction to their exciting pregnancy news.

Why Tracey Spicer has given up make-up

"After 30 years on television, I had become what I despised: a painted doll who spent an hour a day and close to $200 a week putting on a mask."

Empowering bikini photo of 46-year-old mum goes viral

When a group of teenagers made rude remarks about her body as she walked past them in a bikini at the local beach, Julie Cross refused to cover up.

Devastated widow discovers she's pregnant the day before husband's funeral

They had been trying to conceive a baby for seven years. Tragically Kristy Kirchner found out she was pregnant the day before her husband Royce's funeral.

Win a family pass to Disney Live!

We have 4 family passes to give away to see Disney Live! presents Three Classic Fairy Tales, touring Australia this December/January.

Gabriella Goat sues Peppa Pig

Every toddler's favourite television pig is being sued by an Italian woman who shares a name with a Peppa Pig character.

Meet the Mpregs, the male pregnancy enthusiasts

"Men can't have babies - that's something only women can do! But our community is full of like-minded people who wish otherwise."

Your new motherhood survival kit

Forget about the bright, pretty baby things - while you're in survival mode, all you'll need are the essentials.

More than 100,000 cars recalled globally after death of pregnant woman

The announcement of a mass recall comes as Malaysian police investigate the death of pregnant woman in July.

I had a 'good baby' but still suffered from postnatal depression

I had a much wanted precious baby girl, a 'good baby' who slept well, self settled and was mostly content. It just seemed implausible to think I could succumb to depression.

Download now: Essential Kids Activity Finder app

Got bored kids? Quickly find the best activities for kids wherever you are in Australia with the Essential Kids app.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Win one of 5 Little Tikes Cozy Coupe Sport

Australia?s No 1 selling car is now available in a Sports model and we have 5 to give away to some lucky Essential Baby families.

Join PADDINGTON on the red carpet!

To celebrate the release of PADDINGTON, we are giving five lucky winners the chance to win a family pass to the exclusive Australian Premiere in Sydney on December 7!

Knowing you are one of the lucky ones

I am secure, confident and strong, but the responsibility of protecting my children can almost bring me undone.

Why I am so emotional now I have kids?

There are so many ways in which parenthood changes us as women, but one of the most noticeable, for me, has been the changing state of my emotions.

Baby survives despite sharing womb with 'foreign body'

Baby Maia was conceived against the odds, only to find she was sharing a womb with an ominous "foreign body".

Video: Baby shows dog how to jump - or vice versa

They say dog is man's best friend, but this playful pooch seems to have chosen a jumping baby as her number one buddy.

10 ways to soothe a crying baby

New paernts can get frustrated when their newborn gets fussy and can't settle down. When you're feeling overwhelmed, try some of these simple tips to help soothe your baby.

20 baby names that are becoming more popular every year

The data-lovers at nameberry.com have been at it again – this time, they’ve discovered the names that are continually rising up the ranks, ready to take out some top spots in the next few years.

10 great meals to make for new parents

Ideally, you want to give food that isn’t expensive to make, isn't too difficult to create, and freezes well; stews, bakes, soups and pasta sauces are perfect.

'It's not you, it's me': Boston bombing survivor mum to have leg amputated

Rebekah DiMartino is going through a break-up. She even wrote a farewell love letter. But it's not to her husband.

What it's like to go through early menopause

In a cruel twist, Carla had been breastfeeding and perimenopausal at the same time. But she's far from the only one to go through menopause early.

Restaurant served alcohol to two-year-old

Busy restaurants can be forgiven for getting food and drink orders mixed up from time to time, but not when the confusion leads to a two-year-old being served an alcoholic cocktail instead of the child-friendly beverage they ordered.

Julia Morris tells of miscarriage on a flight

Julia Morris has spoken about the devastation of suffering a miscarriage while on an international flight.

Woman's survival after birth 'a story of two miracles'

A US mother is home and tending to her new baby less than a month after surviving without a pulse for 45 minutes.

Eating ice may give mental boost to the iron deficient: study

A new study proposes that, like a strong cup of coffee, ice may give those with insufficient iron a much-needed mental boost.

Tiny lives in caring hands: Thank U NICU Day

Each year in Australia, over 40,000 newborns need the help of a special care nursery or neonatal intensive care unit. One day a year, the staff are honoured by the parents they help through those dark days.

I paid $50,000 to have a girl

This time my husband and I hadn't taken any chances. We had paid $50,000 and travelled 13,000 kilometres to make sure the baby growing inside me was female.

Weird pregnancy products

Some pregnancy products come to market and are just awesome. Others just leave you scratching your head.

Dear firstborn, I'm sorry

Being a first-time mum is tough for so many reasons – particularly because you really have no idea what you're doing.

A trace of sesame could kill my son

Helen Richardson son's had two anaphylactic reactions in a month. It's traumatic for everyone.

When you know before the test says yes

It wasn't a pregnancy test or missed period that told me I was pregnant with my second baby; it was too early for those things. A doner kebab told me I was going to be a mum again.

What not to do when your partner is in labour

Robbie Williams stole the show during his wife Ayda's labour, pretty much demonstrating everything on the "what not to do when your partner is in labour" list.

Best maternity swimwear and beach cover-ups

Thinking about a tropical babymoon but have nothing to wear? Here are some great swimwear and beach cover-up options for mums-to-be.

Dad breastfeeds his babies

Trevor Macdonald has now been pregnant twice, and is successfully breastfeeding his newest family member.

 

How many weeks til Christmas?

On your To-Do list

Get the "Santa" shopping done without the kids in tow.

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.