I recently read Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650. This case may be of interest to students in my Torts Law class. The plaintiff was 15 weeks pregnant when she started to show signs of losing her baby. At the time she was enjoying a...
Medical Negligence, Causation and Bariatric Surgery!!!
Recent Blog Posts
Duty of Care and Climate Change…
Nothing gets people more excited than talking about owing duties of care. For the uninitiated, duty of care in a negligence action relates to whether or not a defendant owes a legal duty to another. Within a negligence action, finding a duty of care is often easily...
Social Media and Criminal Law- Revenge Porn, Cyberbullying and Harassment!!!
This week we investigated the intersection between social media and criminal law in my Social Media Law course. I will be honest and tell you I was both appalled and confused by many of the cases and incidents which are cited relating to criminal activities which take...
Social Media and Litigation- Using Social Media Content as Evidence and Other Notable Issues!!!
Many of us post about our lives on social media regularly. In fact, some may argue- ‘if it wasn’t posted on social media, did it really happen!!!’ If you are a party to litigation, this habit may create some hassles… Let’s consider a case where a party to...
Woohooo…I am teaching causation in negligence actions again!! Causation is kinda cool but can also be super tricky…
Essentially causation in a negligence action, relates to whether or not the defendant (alleged wrongdoer) caused the harm to the plaintiff (person who has suffered the harm). This can be really straight forward- ie when there is only one event and set of parties. But in some instances, it can be really tricky- think multiple defendants (wrong doers) and lots of events happening at once.
Causation is often an issue in medical negligence cases. For example, it can be difficult to determine if a medical practitioner’s negligence actually caused the harm to his or her patient.
There is one medical negligence case which recently attracted my attention. Why is this so- well I would like to say that it is because it clarifies an academically rigorous area of law…but no that isn’t it!! It is because of the identity of the medical practitioner who was sued by the plaintiff in the case- Dr Emanuel Varipatis!!
I actually went to see the defendant doctor many years ago. The reason I was attracted to his medical practice was due to his philosophies in relation to integrating naturopathic principles with traditional medicine.
Anyway, I thought he was excellent and went back for ‘tune-ups’ over a series of years!!
I recently looked up Dr Varipatis, as I thought the next time I’m in Sydney I might book in for a check-up. When I googled his name, I was greeted with a host of news articles relating to his being sued for not advising a patient to have weight loss surgery. I decided to investigate…
Like me, Luis Almario (the plaintiff) was attracted to Dr Varipatis’ health philosophies. Almario chose to consult Dr Varipatis as he reasoned his health issues were largely caused from toxic exposure. Dr Varipatis has a special interest in this area. Alamario, who was morbidly obese, was a patient between August 1997 and February 2011. Almario had numerous health complaints which eventually led to a diagnosis of liver cancer.
Almario brought a medical negligence action against Varipatis.
Varipatis was unsuccessful at first instance- so was found negligent for failing to advise Almario to have weight loss surgery. Other breaches were identified, but this was the only one where causation was established.
The appeal by Dr Varipatis was upheld -essentially due to Alamario not being able to establish causation. There was little evidence to suggest that Alamario would have had the surgery, or acted on a referral to lose weight, even if this was the advice given by Dr Varipatis. In addition, the standard of medical knowledge at the time was looked at. In the late 1990s-early 2000s bariatric surgery was not as well established as it is today.
All in all this is a fascinating case from both a personal and professional point of view!!