Bariatric surgery case clarifies standard of care

Amidst the surging popularity of weight loss surgery, the recent decision of Polsen v Harrison (No. 8) [2023] NSWSC 764 outlines the approach the Court will take when determining whether the standard of care has been breached by a surgeon performing weight loss surgery.

The facts

On 22 July 2013, Ms Polsen, underwent a gastric sleeve procedure performed by Mr Richard Harrison, Bariatric Surgeon, to manage her morbid obesity. Postoperatively, Ms Polsen developed haematoma, but leak tests were negative and she was discharged once her condition stabilised. Ms Polsen subsequently developed a small post-operative leak, which required a laparoscopic washout and the insertion of peritoneal drain. She also developed an infection, which Mr Harrison planned to control with drains, IV antibiotics and comprehensive nutrition. When Ms Polsen was discharged on 23 September 2013, she was considered to be “clinically well with no signs of sepsis”. Subsequently, Ms Polsen had a difficult and complex post-operative course, including an ongoing gastric fistula, abdominal pain, jaundice, dehydration, suspected pancreatitis, liver failure, intraabdominal fluid collection, anaemia, malnutrition and infection. Her extensive post-operative treatment involved many admissions to hospital and multiple surgical procedures over the following years.

Ms Polsen brought proceedings against Mr Harrison in the Supreme Court of NSW. Among 26 allegations of negligence, Ms Polsen alleged that:

• Given her long-term alcohol abuse, Mr Harrison should have counselled her against surgery, or delayed the surgery;
• Mr Harrison did not properly warn her of the inherent risks of the procedure;
• Mr Harrison’s technical performance of the operation and initial management was negligent;
• Mr Harrison failed to diagnose and treat her post-operative complications in a timely manner.

The Court’s findings

After numerous judgments in relation to this matter,[1] Ms Polsen was ultimately unsuccessful in her claim of negligence against Mr Harrison.

The Supreme Court found that Ms Polsen’s evidence in relation to her alcohol consumption and advice she was provided, was inconsistent with other evidence in the case. Ms Polsen conceded at trial that her memory was bad. The Court found that Ms Polsen’s evidence was unreliable and favoured the evidence contained in the contemporaneous and detailed clinical records, supported by the ‘usual practice’ evidence given by Mr Harrison and his multi-disciplinary team.

The Court noted that the plaintiff’s experts were critical of Mr Harrison’s pre-surgical advice based on a number of assumptions put to them, including the assumption that Ms Polsen told Mr Harrison that she consumed a bottle of wine each night. The Court found these assumptions were not consistent with the clinical records and Ms Polsen’s evidence on this issue was unreliable. Consequently, the Court found that the plaintiff’s expert opinions on this issue were to be disregarded. 

The Court found that Ms Polsen was comprehensively warned of the inherent risks of the procedure, including the risk of a staple line leakage. In particular, the Court was complimentary of the amount of information given to the patient, including the detailed RACS information sheet, which was annexed to the judgment.[2] The Court also noted the written and witness evidence that Ms Polsen had a ‘single-minded determination’ to have the procedure despite the risks because she saw how well it had worked out for her friend.[3]

In relation to the performance of the procedure and treatment after the procedure, the court did not consider it fatal to the plaintiff’s case the fact that none of the plaintiff’s experts were practising bariatric surgeons in Australia. The court noted that the plaintiff’s experts had relevant expertise and each expert had formed opinions within their speciality.[4] Nevertheless, noting the defendant experts were treating bariatric surgeons and considered Mr Harrison acted in a manner accepted in Australia as competent professional practice (section 5O of the Civil Liability Act 2002 (NSW)), this was sufficient to establish that no negligence had occurred. The Court rejected the argument that section 5O was to be used as a defence to negligence rather than the standard of care of professionals.

Ultimately, the Court held that Mr Harrison acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, and that all the complications which arose were well-known risks and sequelae of the gastric sleeve procedure.

Key takeaways

This case clarifies that section 5O is not a defence in New South Wales. Rather, a medical professional need only successfully establish that they acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice at the time.

For practitioners, this case is also a timely reminder of the importance of maintaining detailed notes. In the context of weight loss surgeries, doctors are encouraged to record a detailed history that includes relevant co-morbidities and the patient’s motivation for undergoing the procedure, details and results of examinations performed and details of all advice provided.

In relation to the risks associated with undergoing weight loss procedures, this case indicates such advice should be given in person, but may be assisted by pamphlets or information sheets. Advice provided by the surgeon and multi-disciplinary team members and details of all written information provided to the patient should be clearly recorded in the clinical notes. 

This article was co-authored by Pavi Paramasivam, Paralegal, and originally published in AMA Victoria's blog, Stethoscope.

Read other items in the Australian Healthcare Brief - September 2023