Obese man wins $432,000 payout from GP

Last updated 18:16 07/02/2013
Fairfax Australia

Liver cancer sufferer Luis Almario was awarded more than $350,000 from his doctor because the GP failed to refer him to a weight-loss clinic or send him for lap-band surgery.

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A morbidly obese man dying of liver cancer has been awarded $AU350,000 ($NZ431,700) from his doctor because the GP failed to refer him to a weight-loss clinic or send him for lap-band surgery.

Medical experts say the case of Luis Almario is a legal landmark in New South Wales and will force suburban doctors to ensure overweight patients shed kilos or risk being sued.

Dr Emmanuel Varipatis, a Manly GP, is appealing the Supreme Court ruling that he was negligent in not sending Almario, 68, to an obesity clinic or arranging for a bariatric surgeon to assess his suitability for gastric band surgery.

Almario, a Colombian-born former left-wing revolutionary and one-time candidate for State Parliament, was in the care of Varipatis from 1997 to 2011.

During that time he weighed 140 kilograms despite being just 154 centimetres tall.

The court found Almario has terminal liver cancer as a result of liver disease brought on by his obesity. He has been given 40 weeks to live.

Almario, of North Parramatta in Sydney, had sought out Varipatis, a nutritional and "environmental" medicine specialist, after reading about him in a newspaper for his work in treating disease arising from toxic exposures.

Almario was convinced his medical complaints were linked to his exposure to chemicals while working at the infamous Union Carbide pesticide plant at Rhodes, Sydney in 1988.

In his verdict, Justice Joseph Campbell said when Varipatis first saw his patient in 1997, Almario was "morbidly obese and suffered from a constellation of other inter-related conditions, all affected by his obesity, including the liver disease".

He upheld that the doctor was legally responsible for the disease progressing to cirrhosis, liver failure and eventually liver cancer.

"I am satisfied that but for the negligence of the defendant, the liver disease would not have progressed to cirrhosis and one could have expected a great improvement in his health generally, had bariatric surgery been successful, and a healthful weight been achieved by Mr Almario following surgery," Justice Campbell noted.

He found Varipatis negligent on three counts but the GP has appealed the decision, backed by his insurer Avant.

Allan Tattersall, acting general manager of claims at Avant, told industry publication the Medical Observer that it was in the interest of all GPs to refer the case back to the courts.

Varipatis insisted that in the late 1990s bariatric surgery was not considered effective as a treatment for progressive liver disease associated with morbid obesity.

The Royal Australian College of General Practitioners and Australian Medical Association declined to comment before the appeal has been heard.

Dr Adrian Sheen, a Penrith GP and president of the group Doctor's Action, said the Supreme Court ruling would place an "intolerable burden" on the family doctor.

"This will force doctors to refer patients off for every test under the sun or fear being dragged into the courtroom. The cost to the health service will be astronomical," he said.

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"Health is a relationship between you and your family doctor and it's one that is taken outside the courtroom. Where is this going to stop?

"We have a high standard of care in this country, GPs have a tough task as it is and this will make it impossible."

Almario was awarded $AU569,332 ($NZ702,362) in damages discounted to $AU364,372 ($NZ449,506) on a range of mitigating factors, including that a "reasonable person" would have taken the precaution of dieting.

Campbell based the payment on the assumption that Almario has 40 weeks to live.

"Mr Almario is severely, totally and permanently disabled. He is almost entirely dependent upon others for the ordinary activities of daily life.

"All of his food is pureed, and he is fed via a naso-gastric tube. He can barely walk as far as the kitchen. He is on medications which are administered to him via the tube.

"He is reduced to doing little apart from sitting in the lounge watching television or sitting in his bedroom on the computer," the judge said.

Almario is being cared for at home by his wife Elvira.

- Sydney Morning Herald

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