Morbidly Obese Man Denied High Court Special Leave

The High Court has refused special leave appeal to Mr Luis Almario, a morbidly obese man who sought to hold his GP responsible in negligence for failing to refer him to a weight-loss clinic or send him for lap-band surgery. Mr Almario was initially awarded in excess of $350 000 in the Supreme Court of New South Wales; however, the Court of Appeal  unanimously allowed the respondent’s appeal and set aside the judgement and orders of the primary judge (Varipatis v Almario [2013] NSWCA 76]).

The Facts

Mr Almario, a Colombian-born revolutionary who once stood for state parliament, was in the care of Dr Varipatis, a Manly GP from 1997 to 2011. It was first held that Dr Varipatis was negligent in failing to refer Mr Almario, 68, to an obesity clinic or organising for a surgeon to evaluate his suitability for gastric-band surgery. Mr Almario weighed 140 kilograms and was 154 centimetres tall. Justice Campbell held that Mr Almario’s terminal liver cancer was a direct result of liver disease linked to his obesity.

The Court of Appeal Decision

A three-judge panel of the NSW Court of Appeal allowed the appeal against judgment on grounds which included an assessment of the GP’s relevant obligations. Their Honours accepted the GP’s evidence that he advised the patient to lose weight and held the advice was sufficient to meet the standard of care required which consisted of taking no more than “reasonable care.”

Avant, a medical insurer, led the appeal. They reported that the original decision had caused substantial concern in the industry because of the potential to require GPs to ''practise defensively''.

The High Court Appeal

Justice Crennen and Justice Keane heard the special leave application. Their Honours were of the view that there were “insufficient reasons to doubt the correctness of the Court of Appeal’s decision.” Special leave to appeal was refused with costs.

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