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Duty of care and doctors


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#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 Mitis angelam

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 Fenrir

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.





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