Andrew Blandford: Who sets standards?

DOCTORS were concerned recently by a court decision suggesting that obese patients at risk of liver disease should be referred for bariatric surgery.

The NSW Court of Appeal decision provides an opportunity to set the record straight on “medical precedents”.

A GP may be obliged to advise a patient that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) referrals to appropriate specialists or clinics.

If the patient refuses to take the firm advice of the GP, and of specialists to whom they are referred, there is no breach of duty on the part of a GP in failing to write a further referral. The duty of care stops short of requiring an exercise in futility.

This was the Court of Appeal finding in the case of Varipatis v Almario, which overturned an earlier court decision.

Mr Luis Almario had longstanding problems with obesity, liver disease and diabetes. He had been referred for care to a diabetic clinic and later to a weight control clinic. He was advised to lose weight but had declined further follow-up at the obesity clinic.

He first consulted Dr Emmanuel Varipatis in 1997, when he was morbidly obese and suffered from a constellation of interrelated conditions, including liver disease. In 2011, at age 67 years, he was diagnosed with liver cancer.

Mr Almario claimed that Dr Varipatis ought to have referred him for specialist advice that would have resulted in his receiving bariatric surgery to address his obesity.

The Varipatis decision is important for recognising the role of patient autonomy in clinical care. The medical practitioner can inform and advise the patient and may, in some circumstances, be expected to repeat this advice when the clinical relationship is ongoing.

However, the decision to follow through with the recommended treatment or investigation ultimately rests with the patient.

If a patient has received the necessary information and has made an informed choice not to pursue recommended treatment, then the court will not require additional referrals that are futile.

Medical practitioners are often confused by what they perceive to be the courts dictating the standard of medical care. Hence, a judgment — such as the initial judgment in this case — that liability flows from a failure to refer a patient for bariatric surgery — raises concerns about whether this decision should prevail over the clinical judgement of treating doctors. The temptation is for defensive medicine to prevail over good clinical care.

The Varipatis decision demonstrates that legal judgments about the standard of medical care are based upon the expert medical opinions in the case. The quality of the legal decision is dependent upon the expert opinions and the interpretation of that evidence by the court.

The clinical standard of care is assessed according to the standards of the time and the specific circumstances of the individual patient.

So while legal judgments are based on an extensive hearing process involving medical experts, there are good reasons why an assessment of clinical care in an individual case should not be used as a precedent to bind the clinical standards of the medical profession in other cases.

The duty of care of medical professionals is defined in broad terms as “reasonable care and skill in the provision of professional advice and treatment”. Tort reform introduced in all states (but not in the two territories) provides a defence to a civil claim where the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

While the courts can define the boundaries of the clinical duty, the standard of care in an individual case is largely determined by medical experts, not by the lawyers.

Care should be taken by the legal profession to avoid the setting of “medical precedents” that may have damaging effects upon clinical care. However, the medical profession should also be mindful that clinical standards are ultimately defined by their professional colleagues.

Mr Andrew Blandford is special counsel — civil with Avant Law.
 

Posted 29 April 2013