Accident Compensation Corporation v McCarron

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 236/2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ACCIDENT COMPENSATION CORPORATION Appellant AND JANINE MCCARRON (Al 65/08) Respondent HEARD at AUCKLAND on 3 September 2008 APPEARANCES Mr D Tui, Counsel for Appellant. No appearance of respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] This appeal was scheduled for hearing before me on Wednesday, 3 September 2008, at 10.00 a.m. and the parties were notified of the time, date and place of hearing accordingly. [2] The respondent, Janine Mccarron, did not appear at the appointed time or at any time subsequent. Neither the Court nor the Registry had been notified of any problems associated with the respondent's attendance at the appointed time. [3] In those circumstances, and in view of the fact that it was the Corporation which was the appellant, I proceeded to hear Counsel for the Appellant's submissions and took the view that the respondent was entitled to the benefit of the Review decision 65.08 (pg) 2 which was in her favour, and that it was for the appellant to establish that the Review decision was wrong. The hearing proceeded on that basis. [4] The issue in this appeal concerns the respondent's entitlement to cover for a treatment injury, namely the failure of a gastric band and for which she would require surgical replacement. [5] The background facts relevant to the issue in this appeal may be stated as follows: On 15 May 2007 the appellant, then having a body weight of 137 kg, underwent gastric band surgery carried out by Mr Robert Fris, General Laparoscopic and Endoscopic Surgeon. . The purpose of the surgery, as stated by the respondent at Review, was that her family had a history of heart disease and she sought this treatment to assist her to lose weight and maintain it. She stated that her sister had undergone the same procedure with success In or about August 2007, the gastric band was identified as not working properly, there being indications that it was leaking. On 15 August 2007 the appellant, through Mr Fris, lodged a claim for cover, the advice of Mr Fris in support of the claim stated as follows: "This patient has a leak in her gastric banding, which may have occurred at the time of surgery. During the surgery blood or fat drips out of the liver obscuring the camera, and this can sometimes occur just when a suture is being placed very close to the band. Because the pressure is a low pressure system, this may not be recognised for several months later. The most common cause, however, is in trying to inflate the band, the needle inadvertently punctures the adjacent catheter, even when attempted under ultrasound guidance Because of the low pressure system, contrast radiology is not helpful, and just adds to the cost. Therefore, the usual routine is to prepare the surgery for all eventualities, and start by checking the inflation port and catheter first. If this has a leak, then this is replaced and the patient is sent home the same day. However, if no leak is found in this section, then the band is removed and replaced by a new system." . After obtaining further particulars from Mr Fris, the appellant issued its primary decision on 3 October 2007, that decision stating as follows: 3 "You underwent a gas at a gastric banding procedure on 15 May 2007. Initially it appeared that the banding was working well, but in June 07 you presented back to your surgeon Mr Fris as it appeared that the banding was deflating. Mr Fris has proposed that there is possibly a small e band from suturing, causing it to deflate and thus become ineffective Advice has been sought on failed gastric banding claims to clarify th clarity the issue of whether they are a prosthesis, and can therefore be covered by ACC. The outcome of this is that they do not replace a physical part of the body, damage or failure of this cannot be regarded as a personal injury. This means that you have not suffered a physical injury, and this claim is therefore declined." The respondent sought a review of that decision and for the purposes of that review, Mr Fris provided a further letter of explanation and support. A Review Hearing took place on 22 January 2008 at which the appellant made submissions but did not introduce any further evidence. In a decision dated 11 February 2008, the Reviewer, Mr M I Hill, ruled that the damage to the gastric band constituted personal injury, that it amounted to a treatment injury and for which the respondent was entitled to cover. Further particulars of the Review decision will be noted later. . The Reviewer quashed the appellant's primary decision and granted cover to the respondent for the treatment injury she had claimed. . For the purposes of the appeal to this Court, Counsel for the Appellant has obtained leave to introduce a report and explanation from Mr David Innes, General Surgeon. [6] Mr Robert Fris provided a report for the Review hearing, his letter stating inter alia, as follows: "Janine has a metabolic abnormality of fat metabolism, resulting in morbid obesity. When I first saw her at 137 kgs (BMI OF 53.4), she was not a well person, with pathology attributable to this syndrome, I.e. sleep disorder, night-eating syndrome, hypertension, gastro-oesophageal reflux, dyslipidemia, Hyperfibrinogenaemia iron deficiency and non-alcoholic fatty liver disease. She did well initially, but due o her size and therefore the technical difficulties of accessing the inflation port, an inadvertent puncture of the system occurred, causing leak of the system, and return of the abnormal chemistry. She got down to 120 kgs. This is dreadfully disappointing for patients, particularly as they have paid for this themselves, and the only way of correcting this is to reoperate. The procedure is usually very straightforward. As this was an accident, and not her fault, we have applied to ACC as personal injury had occurred and that she requires further surgery. . . . 4 I gather that the problem is that a band is not defined as prosthesis by ACC. The entire medical world and community considers it to be a prosthesis, and hence the reason given was that it is not covered by ACC as it is not legally a prosthesis It seems to me that it's a matter of definition, and that poor Janine is suffering purely because somebody designed the definition. Janine is suffering as a result of semantics, and I have been trying to find out whether there is some clause which would cover unusual events, which I am sure must exist." [7] The other specialist report is from Mr David Innes, General Surgeon. Several questions were posed to Mr Innes and those questions and his answers are as follows: The Reviewer determined that Mrs Mccarron has suffered a personal injury was was described as "the stomach reverting back to its abnormal chemistry - when she reverts to eating normally the band will cause more problems because of the restriction. As the stomach inflates it will push against the restriction of the band - causing further damage to the stomach." Do you agree with the above? Has th been a reversion of Mrs Mccarron's metabolic chemistry and how, if at all, is this physical damage/harm caused by the gastric band failure? A The medical facts are as follows: - 1. The band and/or the tube and/or the inflation port have a leak and the band cannot be inflated to cause restriction in the upper stomach. 2. The non-functional band is causing no damage and is posing no risks greater than if the band had been inflated and was functional. [A small proportion of inflated bands, around 1%, can work through the wall of the stomach, cause a leak, and serious complications.] 3. There is a theoretical risk that if the patient gains a lot of weight the tube could pull on the port in the abdominal wall and cause irritation. This could be simply corrected by removing the port. 4. There is no ongoing leak of fluid from the band. 5. Any foreign material placed in the body can cause complications but the risks associated with this inert band are minimal, and the risk would be the same if the band was replaced. 6. In the presence of the failed band the stomach has not "reverted to its abnormal chemistry" - it has reverted to its normal function. The metabolic and chemical abnormalities in the patient are not in the stomach but in the whole chemical functioning of the body as a consequence of excessive food intake and obesity." Mr Innes was asked his opinion as to the nature of a gastric band, which he stated as follows: "In my opinion the gastric band is not a prosthesis replacing part of the human body. It could be compared to silicon or saline filled breast prostheses used for cosmetic breast augmentation, and is dissimilar to an artificial limb or true prosthesis. I believe the District Court should carefully scrutinise the Reviewer's contrary opinion on this matter." 5 He then gave his opinion as to whether or not a personal injury had been suffered when he stated as follows: "In my opinion there has been no personal injury because the failed band has not caused an injury to the body, but has just resulted in the operation e desire [8] Whilst the Reviewer did not have the benefit of Mr Innes' advice, he did have the report of Mr Fris and he also referred to an entry on a website giving a description of what was entailed in gastric banding surgery. 9] The main points in the Reviewer's reasoning, which I now bring forward as being the respondent's argument in support of the correctness of the Review decision, is as follows: . This is not a situation where the damage is an ordinary consequence. There was inadvertent damage to the device. The damage to the device has caused a personal injury in that the stomach has reverted back to its normal chemistry. In relation to Section 26(1)(e), the gastric band is a prosthesis as it does replace part of the human body. It is replacing a section of the stomach which triggers the brain to indicate that the stomach is full. It is carrying out the function of a bodily part to reduce the impact of food. The respondent's situation meets Sections 26,32 and 33. Therefore she has suffered a treatment injury. [10] Mr Tui, Counsel for the Appellant, submitted that the primary issue to be determined is whether the failure of the gastric band has caused a personal injury. It is a requirement of Section 32 that the claimant suffers a personal injury in order to be entitled to cover. [11] He further submitted that it is also a statutory requirement that the accident and/or treatment caused the personal injury. He submitted that a gastric band was not a prosthesis which could be the subject of injury under the Act as it did not replace part of the human body. 6 [12] Counsel referred to the report of Dr Innes and submitted that the respondent had not suffered any personal injury arising from the failed gastric band. In further support of that submission Counsel referred to the decision of this Court in ACC v Deverick, (Decision 67/08) which he said was on all fours with the present appeal and where the Court's determination in that matter should be adopted in the present appeal. DECISION [13] The respondent's claim for cover was a claim for a treatment injury stated as being "return of metabolic syndrome and consequences". In practical parlance the respondent was claiming for the failed gastric band causing her stomach to revert to its former manner of function. [14] In the Review decision now appealed, it was the primary ruling by the Reviewer that the damage to the gastric band had caused personal injury by causing the stomach to revert back to its abnormal chemistry. [15] In an additional finding, the Reviewer determined that the gastric band, which was damaged, had replaced a part of the body normally supposed to carry out the function of restricting the intake of food. [16] The respondent's claim is a claim for cover for personal injury, that is, treatment injury. In that context the meaning of "personal injury" and "treatment injury" need to be considered. In terms of Section 26, "personal injury" means physical injury suffered by a person and is said, by Section 26(1) (e), to include damage to prostheses that replace a part of the human body. By a further subsection in the definition section "prostheses" is stated specifically not to include hearing aids, spectacles or contact lenses. [17] Treatment injury is defined in Section 32 as meaning a personal injury that is suffered by a person receiving treatment from a registered health professional and is caused by that treatment. Section 32(3) states: 'The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury." [18] In the case of this respondent, there is no evidence that she has suffered personal injury, that is, physical injury, as a consequence of treatment. The most that 7 can be said that as a consequence of the gastric band failing, her stomach has reverted to its normal pre-surgery condition. 19] Whilst it is the case that the failure of the gastric band must be regarded as being a failure caused by treatment, nevertheless it is not a treatment injury, as I rule as a matter of law that the gastric band is not a prosthesis which can be the subject of personal injury within the meaning of Section 26(1) (e) as it does not constitute damage to a replacement part of the human body. (20] In that regard, I accept the expert opinion of Mr Innes, and that finding is in line with my earlier decision in Deverick (supra). [21] Whilst it may be the case that Mr Fris says that the entire medical world considers it to be a prosthesis, that does not necessarily equate with the medical world considering it to be a prosthesis within the restricted definition give to prosthesis under the Injury Prevention, Rehabilitation and Compensation Act 2001. [22] In summary, then, I find that the Reviewer was wrong both in fact and in law to find that the consequence of a malfunction of the gastric band and/or the reversion of the respondent's stomach to its pre-operational state constituted a treatment injury. Neither in fact nor in law has there been a personal injury suffered by the respondent which could be considered a treatment injury and thereby being amenable to cover under Section 32 of the Act. [23] As a consequence of my findings above, the Review decision is hereby quashed and the appellant's primary decision declining cover is reinstated. DATED this 22 day of September 2008 M J Beattie District Court Judge