A Sydney bariatric surgeon has been vindicated after a patient claimed a biliopancreatic diversion procedure completed more than two decades ago left him with serious physical and psychiatric injuries.

Supreme Court of NSW Justice Richard Weinstein found the patient had made many false assertions about the impact of the procedure on his health, noting it was not possible to outline “each overwhelming and distinct illustration” of his “unbelievability”.

The negligence case centred on a bariatric procedure completed in March 1999. The patient claimed the surgeon did not take reasonable care in performing the procedure or warn about the risks of BPD surgery.

He also claimed the specialist’s post-operative care was negligent and resulted in untreated nutritional deficiencies that led to major depression, impaired language skills and an inability to work.

The case took place over 24 days of hearings, including 14 days of cross examination of the patient. During this time, the surgeon’s barrister outlined 27 key facts the patient had omitted from his evidence, and described much of what he did disclose as “bald faced lies”.

The patient argued that he was once a capable and hardworking man, but had been reduced “to a state of profound physical and cognitive dysfunction” after surgery.

However, the defence successfully spotlighted inaccuracies in his evidence, establishing he was not was in full time employment for the full decade leading up to the surgery, nor was he rendered incapable of work afterwards.

While the patient said his capacity to work had been diminished after the procedure, the court heard he was working up to 16 hour days in the period between April 2001 and November 2004.

Justice Weinstein agreed with the surgeon’s defence team that the patient was a dishonest witness, and he’d failed to mention a previous back injury and history of poor health.

“The thrust of the plaintiff’s evidence in chief was that he had no significant mental or physical health issues prior to the BPD surgery in 1999,” he wrote.

“His evidence in chief omitted the significant back injury which he had suffered in 1995, and which had resulted in him receiving workers’ compensation payments between 1996 and 1999. It also omitted a history of chest pain, breathlessness and fatigue.”

The surgeon’s defence 

The specialist retired from surgical practice in 2013, and by the time the patient took legal action there were only six pages of clinical notes remaining relating to his care.

While the surgeon was unable to recall the specifics of his treatment of the patient, he was able to use the records that did exist, along with information about his usual approach to practice, to demonstrate he had not been negligent in his care.

The surgeon’s barrister was also able to highlight falsities in a range of evidence provided by the patient, which the court accepted.

“While I am generally reluctant to find that a witness has been deliberately dishonest, no other conclusion is open to me in this case given the wealth of contemporaneous documents which demonstrate the falsity of much of the plaintiff’s evidence,” Justice Weinstein found.

Through the course of lengthy cross-examination about his symptoms and work habits, the patient “was evasive, argumentative and disingenuous, particularly when asked questions that he apparently perceived were adverse to his case”, the justice wrote.

The patient had argued his total economic losses after surgery amounted to $1.6 million. While Justice Weinstein found he was not entitled to any compensation, he still modelled what the patient would be owed had his claim been successful. He outlined this would have been only $308,500.

The court ruled in favour of the surgeon, ordering the patient to pay the specialist’s costs [link here].