The GP was initially found negligent in the Supreme Court of New South Wales before the NSW Court of Appeal ultimately overturned that decision — concluding that a doctor’s duty of care does not extend to repeatedly pursuing treatment when the patient has already declined or failed to follow earlier advice.
What lessons does this case hold for GPs managing chronic conditions where patient engagement is limited?
A man in his 40s attended his GP over several years for a range of health issues. One of the most significant clinical concerns was his weight. The patient had severe obesity, weighing over 150 kilograms.
Routine investigations also revealed abnormal liver function tests. These results raised concerns about the possibility of liver disease associated with obesity, including fatty liver disease that could progress to cirrhosis if left untreated.
The GP discussed the risks associated with the patient’s weight and the potential consequences for his long-term health.
As part of managing these concerns, the GP referred the patient to a specialist obesity clinic at a major hospital. The clinic provided multidisciplinary weight loss management to assist patients with significant obesity through medical, dietary and lifestyle interventions.
However, the patient did not attend the appointment.
The patient continued to attend the GP practice over the following years for various medical issues. During this period, his weight remained significantly elevated and subsequent blood tests showed persistently abnormal liver function tests, indicating ongoing risk of progressive liver disease.
Over time, the patient’s underlying liver disease progressed to cirrhosis. His condition further deteriorated into liver failure.
Despite treatment, the patient later developed liver cancer, which required chemotherapy. While he initially achieved remission, the cancer returned and became terminal.
The patient subsequently brought a medical negligence claim against the GP.
The patient alleged that the GP had failed to adequately manage his obesity and liver disease.
In particular, the claim focused on the period between the late 1990s and early 2000s.
The patient argued that the GP should have taken additional steps during this time, including:
According to the patient, if these steps had been taken, his obesity may have been treated earlier and the progression of his liver disease might have been prevented.
The GP denied negligence and maintained that reasonable steps had been taken to manage the patient’s condition, including referral to a specialist service.
The case was initially heard in the Supreme Court of NSW.
The trial judge concluded that the GP had breached their duty of care.
The judge considered that the GP should have taken additional steps to ensure that the patient received specialist treatment for obesity.
In particular, the court suggested that further referrals or more proactive management may have been appropriate during the relevant period.
On this basis, the GP was found negligent.
The GP appealed the decision.
The matter was later considered by the NSW Court of Appeal.
The Court of Appeal carefully reviewed the evidence about the GP’s management of the patient and the steps that had been taken to address the patient’s obesity and abnormal liver tests.
A key issue was the earlier referral to the obesity clinic. The patient had been referred to the clinic but did not attend the appointment.
The Court of Appeal considered whether the GP was legally required to continue making further referrals or taking additional steps to ensure the patient pursued specialist treatment.
Ultimately, the court rejected that argument.
The judges emphasised that while doctors have a duty to take reasonable steps in the care of their patients, that duty does not require them to repeatedly pursue interventions that the patient is unlikely to accept.
The court described the expectation that the GP should repeatedly make the same referral despite the patient’s failure to attend as “an exercise in futility.”
Because the GP had already taken reasonable steps by advising the patient and arranging the referral, the appeal court concluded that the duty of care had not been breached.
The appeal was allowed and the finding of negligence was overturned.
Managing chronic conditions such as obesity often involves long-term engagement between doctors and patients.
Doctors may recommend investigations, lifestyle changes, referrals or specialist treatment, but the effectiveness of these interventions frequently depends on whether the patient chooses to follow the advice provided.
This case highlights the limits of a doctor’s legal responsibility in situations where a patient does not engage with recommended care.
The law requires doctors to take reasonable steps in managing a patient’s condition, but it does not require them to compel a patient to follow medical advice or repeatedly pursue interventions that the patient has already declined or ignored.
At the same time, the case serves as a reminder of the importance of clearly communicating clinical concerns and documenting advice given to patients about the risks associated with ongoing health issues.
Where patients do not attend referrals or follow recommended management plans, careful documentation can help demonstrate the steps taken and the discussions that occurred.
The NSW Court of Appeal decided that there may be an obligation for a GP to advise a patient that weight loss is necessary for the patient’s health, to discuss how that may be achieved, and offer and encourage the patient to accept referrals to appropriate specialists or clinics. However, if the patient refuses to follow the advice of their GP and the specialists to whom they are referred, the court found there was no breach of duty by the GP in failing to write a further referral. The duty of care did not extend to require an exercise in futility. It is imperative that these discussions and recommendations are carefully documented.
As doctors, our duty is to take reasonable steps to offer management for a patient’s condition based on information we have available at each consultation. This includes recommending appropriate investigations and referrals, and documenting those discussions. Patient engagement is critical in chronic disease management, and outcomes often depend on whether patients choose to act on medical advice that we reasonably give. The judgment in this case confirmed that the doctor’s duty did not extend to a requirement to repeatedly pursue the same intervention when a patient had declined or had not followed earlier advice.
Key takeaways
Factsheet – Patient follow-up and recalls
Varipatis v Almario [2013] NSWCA 76 (18 April 2013)
Dr Patrick Clancy is Senior Medical Adviser at Avant, and Mr Andrew Blandford is Special Counsel – Civil at Avant.
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