VIC Is This a Case of Negligence?

[half semester law student]

Intro:

I'm not sure how I am supposed to ask these questions, but I'll give an overview of my situation and thoughts I had that may or may not be applicable.

Question:

This thread is meant to be more of a brainstorm as opposed to a genuine legal matter. I am curious if I have any rights on the matter, detailed below.

Facts:

My psychiatrist prescribed me with medication and noted this 'may reduce appetite'. The time between consultations are generally 3 months; a lot can go wrong in three months.

She said, "contact me if you have any further issues".

I noticed the appetite problem immediately, and I tried to mitigate it by force feeding myself. Unfortunately, this was unsuccessful and resulted in me buying, preparing food and just having it sit there since I could not bring myself to eat it.

I let the problem sit for two weeks, thinking maybe I'll get used to it.

I called my psychiatrist office, two weeks after my initial appointment; no answer. I left a message, expressing my concerns of reduced appetite and subsequent weight loss. I never received a response. Am I expected to leave messages periodically?

At the time of the call, I had lost 4-5 kgs, and some strength (I'm going off performance at the gym, one reason that questions the viability of my complaint).

It has now been over a month since that call and I've lost I've lost 10 kgs and a substantial amount of strength. This is upsetting to me, I was proud of my body and gym progress. Further, 10kgs weight loss (67-57) in 1 and a half months is surely not healthy.

I am considering hiring doctors and trainers to help me get back to where I was in terms of gym progress since my old program is no longer possible, and I don't want to put on unnecessary body weight. I just want to note that this would not be necessary if the weight loss and resulting reduced strength had never occurred.

Why this may or may not be ridiculous:

Does mentioning the medication may cause appetite, exclude liability? Or, is she expected to act if I express concern that this is indeed happening.

Is it possible to hold someone liable for progress lost, in the form of compensation for services sought to revert my body back to prior status? i.e. personal trainers, dieticians.

I'm unsure if this has negatively impacted my actual health; I am not a doctor (or a lawyer). I would imagine that losing 10kgs cannot be a good thing.

Was the psychiatrist misleading when she told me I could contact her by phone for any concerns?


Some arguments that may or may hold merit:

Is this negligence?
The duty of care owed?
She owed me a duty of care as a patient.

She didn't fulfil the duty of care by failing to concerns I noted in the phone message.

Foreseeability:
In my opinion, she foresaw the risk by saying the medication may cause weight loss.

Causation:
I am unsure if I can link weight loss to medication. However, put it this way, my weight was consistently fluctuating between 67-70 kgs prior using the medication and none of my clothes fit.

Action required:
Answer my concerns by phone, and either prescribe new medication or advise to cease taking the medication, that caused the reduced appetite.

Was she misleading?
She represented that I may call her with any concerns/issues, am I entitled to expect a call in response to these concerns.

Defences.
Contributory negligence:
I attempted to eat, I made/bought food that I couldn't bring myself to consume.

Voluntary assumption:
the same as above, I tried to mitigate the risk by forcing myself to eat and I couldn't; it just resulted in wasted food. I suppose I could have ceased consumption, but am I responsible for that decision?


Concluding thoughts

Sorry about the length of the thread; I figured asking on here cannot hurt.

I acknowledge that any information provided is merely an opinion and not professional advice.

Please let me know if you have any questions.

Thanks in advance for any feedback.

 

[Rob Legat - SBPL]

I think you're looking at it too deeply. As well as general information of a legal nature, I too have had to go on a long term medication that affected appetite and I have some vocational training in anatomy and physiology (basic).

For a start, gauging what side effects you'll endure for any medication can be nigh on impossible - that's why they generally say 'may'. There are so many variables that come into play.

Secondly, 10kgs in a month and a half is on the upper end of what is considered a 'good' rate of weight loss in people seeking to lose weight. It's not extreme, especially if you've been working to build muscle. You'll know it can be hard work to maintain size, especially if you have a small frame to begin with. Sorry if I've got that wrong, just going off what information you've put.

Also bear in mind that your body can take some time to adjust to the medication. When I started mine (which I'm still on), the thought of food in the mornings made me almost physically ill. It took around 6 months to abate. I lost some weight to begin with, but put it back on when my body adjusted back - now I don't notice any difference to the way I was before.

The psychologist is going to be less concerned with your loss of appetite than other side effects. You're obviously not completely unable to eat. You were 'warned' that that was a potential side effect. And loss of appetite is probably not going to be considered a critical side effect unless you are in danger of being malnourished.

Also, if you are that concerned about it the reasonable expectation would be that you would go and see your GP for assistance. With the way specialised medical care works in Australia, most contact is funelled through the GP system anyway.

So, in answer to your questions:
1. Unsatisfactory service? Probably (but you wouldn't be alone there). Negligence? Unlikely in at least the practical sense.
2. Health care professionals do owe a duty of care, but there are limits. You're not in any danger, and would be expected to mitigate that in any case by seeking care from your primary GP. In any event, she's not required to cater to your every concern and in the scheme of things the weight loss you've suffered may not be sufficient to require intervention.
3. Foreseeability is technically a consideration, but you were warned and it could be argued that you accepted the consequences that this may happen.
4. Good luck with the causation - too many factors involved. Who's to say that the stress caused by the fear that you may lose weight, caused you to lose weight? It might have been a metabolic reaction to the medication, either alone or in concert with other body chemistry. Way too hard to consider without extensive testing. It's even possible that it was the particular food that you were sensitive to. Trying to force-feed yourself may have only made things worse.
5. Action required - again too hard. It may not be safe to stop/change the medication. The side effects from doing that may make the weight loss look insignificant. It's also possible that in cases where the patient does suffer a lack of appetite, yours may be in the low to moderate end; hypothetically thinking.
6. Misleading? Probably not. You were warned of the potential side effect and told to call. You did. Who's to say why she hasn't called you back? It may not be considered sufficient to warrant a speedy reply, or one at all. Again, probably unsatisfactory, but it's not misleading.
7. Defences and voluntary assumption have been sufficiently covered, I think.

 

[Rod]

I like Rob's reply.

I'm assuming no mental harm as your post focuses on weight loss.

You haven't fully covered if there is a breach of duty. Look up calculus of negligence and professional services, they are both listed in the Wrongs Act 1958 (Vic).

 

[half semester law student]

Yeah, most likely too remote and not likely to achieve anything - I was just a little upset, and find enjoyment in applying law to hypothetical situations - not the most normal hobby, I know haha.

 

[half semester law student]

At the time of writing, I most likely did want to sue on them. However, after sleeping on it, I was like, "Did I actually post that on a forum?"

Nonetheless, I appreciate the feedback.