Accident Rehabilitation and Compensation Insurance Corporation v Dodd

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 283 /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION, a Body Corporate duly constituted under provisions of the said Act Appellant (Appeal No. Al 331/97) AND CHARLOTTE EMMA DODD of Auckland Respondent JUDGMENT OF JUDGE A A P WILLY ON THE PAPERS Background [1] This is an appeal from a decision of a Reviewer given on 16 September 1997. [2] The Notice of Appeal is dated 10 October 1997 and alleges that the Reviewer made an error of law in making "a finding of fact that was not open to him on the basis of the evidence before him". The grounds of the appeal are said to be: "That the Review Officer was wrong to find under s.5 of the Accident Rehabilitation and Compensation Insurance Act that Charlotte Emma Dodd has suffered a medical misadventure arising out of the circumstances of her birth." [3] This appeal has taken an unconscionable length of time in coming to a hearing. The intervening four years is a catalogue of lengthy delays surrounding the appellant's pursuit of further medical opinions to rebut those obtained by the respondent. That resulted in further delays by the Corporation. 2 The Opinion [4] The medical opinion when obtained from Dr David Knight, dated 23 April 2000, was referred to another of the specialists, Dr Nobbs, for comment. He responded promptly on 13 June 2000. His comments were in turn referred to Dr Knight. It was not until 4 April 2001 he responded to the Corporation with further commentary upon Or Nobbs' report of June 2000. [5] This elicited further submissions from the Corporation dated 12 July 2001, to be added to the already voluminous submissions filed on its behalf dated 3 February 1999 and 30 March 1998. The matter was not ready to be placed before a Judge until July 2001. (6] One can only speculate what has been the effect of these delays upon the lives of the child and her parents, given that since September of 1997 they have held a Reviewer's decision in their favour, overturning the Corporation's refusal to grant cover. [7] The Court can only express its concern at the dilatory way in which this appeal as proceeded. The Review Decision 8] I have read the decision and the evidence upon which it is based. 9] I am satisfied beyond any doubt that there was ample material before the Review Officer upon which he was entitled, as the arbiter of fact, to come to the conclusion which he did. [10] I can discern no error of law in the way in which he approached his task. He has dealt comprehensively with the factual circumstances of the birth of the child and her mother's medical care. He has considered all of the relevant medical evidence. He has resolved the conflicts between the various medical specialists to his satisfaction and in a way in which he is obliged to do as the arbiter of fact. He has considered the relevant legal and statutory matters touching upon the case. There is no suggestion he has committed any error of law in doing so. In addition, he gave attention to the question of the right of a child, in a case such as this, to have a claim of this nature brought on her behalf, and there is no suggestion in the Notice of Appeal that he erred in any way in doing so. [11] If the matter rested there I would have no hesitation in dismissing this appeal on the basis that the Reviewer's decision is one which he was entitled to arrive at, based on the evidence before him and in respect of which there is no discernible error of law. It is a decision I would have reached on the then known facts. [12] However, in the light of events since the lodging of the appeal, it is necessary that I consider the fresh medical evidence contained in the reports of Doctors Knight and Nobbs. [13] As indicated, following the filing of the Notice of Appeal, Dr Knight first reported to the Corporation on 23 April 2000. He sets out his qualifications and experience in detail. He is a registered medical practitioner working as a specialist Neonatal Paediatrician at National Women's Hospital. At the time of writing he was the Clinical 3 Director of Newborn Services at that hospital and had held the position for the equivalent of 12 years. He has a distinguished record which includes full-time work as a Neonatal Paediatrician for the past 16 years. He became a member of the Royal College of Physicians (UK) in 1975 and a fellow of the Royal Australasian College of Physicians in 1982. Dr Knight trained as a Paediatrician in the United Kingdom and has worked in New Zealand and Australia. Clearly, he is an expert in his field [14] For the purposes of his report of 23 April, he had access to correspondence from the Corporation's file, a copy of the maternal clinical record and an opportunity to review Charlotte's paediatric clinical record". Dr Knight contends that this material was not available to Dr Nobbs and Dr Richardson, contending that if it had been, Dr Noble's views would have been different. He begins his report by noting that: 'Charlotte had evidence of peri-natal asphyxia. It is usually not possible to assign a precise cause for this. In the absence of factors such as obvious placental abruption or prolapsed cord, the actual mechanism for in utero asphyxial insults is usually speculative." [15] Included in that "speculation" might be interruption or obstruction of the umbilical cord blood flow, high blood pressure in the mother which "would predispose her baby to having foetal distress in labour". Also a gritty placenta, as occurred in this case, could have rendered Charlotte more susceptible to suffer damage during labour. [16] Having dealt with the speculative possibilities in that way, Dr Knight goes on to say, "the cause of the peri-natal asphyxia cannot have been due to the drugs administered before delivery". In this he disagrees with Dr Nobbs and Dr Richardson who consider that "on the balance of probabilities the drugs were at least, in part, responsible for the asphyxia". [17] Dr Knight's view is that the drugs: "could have had no part in causing her appearance at birth". Her appearance was as the Reviewer found in his decision, "white with a heart rate of 50, floppy, no respiratory effort at birth". In Dr Knight's view this "is not the description of a baby depressed by transplacental Pethidine or hypotonic from a Benzodiazepine". To the contrary he considers that it is a description of a baby who has suffered "significant asphyxia". [18] He then sets out the evidence to support this as follows: Apgar scores of 2 at 1 minute and 7 at 5 minutes. The description of being 'floppy, pale++, looks shocked' in the admission note to the neonatal unit at 10 minutes of age. Convulsions occurring at the expected time of 9 to 10 hours post-delivery. Evidence of other organ involvement supporting the occurrence of an insult to the brain. Some renal impairment and elevated lactate dhydrogenase indicating possible liver dysfunction. No evidence of foetal distress during labour. Cord blood gases were not taken." 4 [19] In Dr Knight's opinion, Charlotte's presentation at birth "and subsequent neonatal course fits best with an ante-natal asphyxial event and post-natal hypoxic ischaemic encephalopathy". In the doctor's view this description of events does not suggest any causal relationship between acute intrapartum events and cerebral palsy, as defined by the International Cerebral Palsy Taskforce. Despite this however, Dr Knight considers that the clinical picture "is that of acute asphyxia/ischaemia producing an acute encephalopathy at birth". In the doctor's view "Charlotte's later development problems stem from these". [20] For these reasons the doctor agrees with the Corporation's view that the asphyxia was due to the birth process itself, rather than any complication of treatment given to the mother, or the action of a registered health professional. [21] Dr Knight criticises Dr Nobbs for having given "his opinion without seeing the paediatric clinical records". These are considered by Dr Knight to be "very good and clear", and he considers that they "reflect the quality of her care" which he then describes in detail. He concludes from those records that "there is absolutely no evidence for Dr Nobbs' suspicion that she deteriorated after an initial recovery in the delivery room". He pointedly disagrees with Dr Nobbs' view that Charlotte was: "Given little chance to reverse (the birth asphyxia) herself because she was unable to establish respiration on her own and that a key possible reason for Charlotte's ultimate poor result is the fact that respiratory depression at birth continued." [22] Dr Knight says this is "totally incorrect. There is no support for it in the clinical record, in fact the opposite is true". [23] Dr Knight then goes on seriatim to consider a number of views expressed by Dr Nobbs which are relied upon by him to support his conclusions. He agrees that "ventilation and oxygen should be given before Naloxone." He further agrees that "if there is pure Pethidine depression then Naloxone should be given within 1 to 2 minutes", but says that in his view "Charlotte clearly had much more severe depression than could have been caused by maternal Pethidine". He goes on to say that "she had no ongoing respiratory depression and therefore no necessity to administer Naloxone". The core of Dr Knight's view appears to be that Charlotte was not suffering from Pethidine-induced depression". He says that "her clinical presentation was quite different ... her respiratory depression was not ongoing". As a consequence of this view he strongly disagrees with Dr Nobbs' view that Charlotte was suffering from the effects of a Pethidine-induced depression. He says that 'Charlotte's clinical condition was typical of severe asphyxia and quite unlike Pethidine depression". Dr Knight strongly disagrees with Dr Nobbs' opinion that "Temazepam and Pethidine can produce the clinical picture seen in Charlotte at birth". In Dr Knight's view the "description of Charlotte is typical of a baby asphyxiated before birth" [24] Dealing with the sequence of events immediately following Charlotte's birth, Dr Knight says that "the correct action is to resuscitate first and administer Naloxone after resuscitation has been initiated or completed" [25] In the particular circumstances Dr Knight is of the view that "it is certainly not medical error not to have administered Naloxone after resuscitation". The clinical 5 records establish that Charlotte had no ongoing respiratory difficulty after the initial resuscitation and therefore there was no need to administer Naloxone. [26] Dr Knight then comments on Dr Burgess' opinion, saying that in his view there is no basis for concluding that the Temazepam and Pethidine would have aggravated the depression and asphyxia because there was no post-natal asphyxia "for the drugs to contribute to". [27] Dr Knight's clear opinion is that "the insult to her brain had already occurred by the time of her delivery" and that: "there is no established way of preventing ongoing damage to the brain from this initial insult, apart from good general care, respiratory support if indicated (it was not) and support of the circulation as was done". [28] Given his clearly expressed views, the doctor somewhat confusingly says: "The maternal Temazepam and Pethidine may have had some effect on Charlotte. Some of her hypotonia may have been due to the Temazepam. Pethidine can alter the behavioural state of a baby and alter the respiratory centres CO2 responsiveness. Some of her depressed state may have been due to the Pethidine, however the major cause of her condition was severe asphyxia present at birth and nothing to do with either drug. Whatever the effects of these two drugs may have been after birth, neither had any effect on her hypoxic ischaemic brain injury.' [29] This view is to some extent contradicted in Dr Knight's final summary in which he says: "I consider that the administration of Temazepam and Pethidine to Mrs Dodd and the absence of administration of Naloxone to Charlotte, could not have had any influence on Charlotte's hypoxic ischaemic encephalopathy and to subsequent development problems. There was no evidence of respiratory depression after the initial resuscitation. The treatment that Charlotte received following delivery was excellent, not administering Naloxone to Charlotte was not an error." [30] That report was referred to Dr Nobbs. He is a Paediatrician, a Fellow of the Royal College of Physicians, and a specialist at the Auckland Paediatric Centre, Ascot Integrated Hospital. [31] In his reply he takes issue immediately with Dr Knight as to what documents he saw before expressing his opinions. He says, "I certainly did review the relevant clinical material covering the initial period after birth". As to any inferences he may have been required to draw in the absence of ascertainable facts, he says: 'The reason for poor inference only being possible was not because I have not seen the relevant notes, but rather because the notes did not provide certainty about the makeup of the Apgar scores." [32] He says: 6 "However, all conclusions Dr Knight has drawn that centre around this conclusion that I did not see the relevant notes are, simply stated, incorrect. I have seen the notes.' [33] Dr Nobbs then examines the basis for Dr Knight's conclusions and challenges the factual basis, in particular for his view that the Apgar score was as high as 7. [34] I do not propose to set out in full the basis of Dr Nobbs' reasoning, but I am satisfied it demonstrates that Dr Knight's conclusion about the Apgar score is factually wrong. The objective evidence supports, on the probabilities, that her post- delivery Apgar score could not have been any higher than 4, and only then by giving a generous score for her heart rate and respiratory effort. From this Dr Nobbs convincingly deduces that Dr Knight's evidence for Charlotte's "good respiratory status can also not be relied upon". [35] In support of this criticism, Dr Nobbs points to a letter written by Charlotte's family doctor, Dr Jones, in which he describes from his own observation that: "The baby came out very flat at delivery and did not respond to initial resuscitation, heart rate picking up with bag mask ventilation, remaining grunty and hypotonic, contributing to low Apgar rather than a low foetal heart. She then went downhill again while being transferred to SCBU. Was organised (sic)." [36] As Dr Nobbs convincingly observes "whatever else this is it is certainly not the description of a baby who has a good respiratory status from 5 minutes of age onwards, contrary to what Dr Knight asserted in his report to the respondent". [37] In Dr Nobb's view the observations of Dr Jones further support the fact that Charlotte did deteriorate after an initial recovery in the delivery room, contrary to what Dr Knight asserts [38] As to the significance of her blood gases and whether they were normal at 3 and 31/ hours after birth or 111/2 hours after birth, Dr Nobbs says that: "Blood gases give a snapshot of a single point in time and from them inferences can be drawn for some short period prior to the gas being taken. They certainly cannot provide any precision at all for a clinical status, 354 hours previously, and it is fanciful in the extreme to think that a gas at 1112 hours later provides any evidence at all of the earlier situation." [39] As to the giving of Naloxone Dr Nobbs says that: "The American Academy of Paediatrics recommends the use of Naloxone for infants whose mothers have received Pethidine or other narcotics in labour and who have respiratory depression after birth." [40] He cites the conclusion to be drawn from standard paediatric textbooks that "it is recommended in standard practice to give Naloxone if there is evidence of compromise of the respiratory system". [41] As to Dr Knight's crucial conclusion that he would not have given Naloxone because Charlotte "had no ongoing respiratory depression and she responded 7 quickly and her respiratory effort was good after the initial resuscitation", Dr Nobbs points out that Dr Knight provides no evidence for these assertions and concludes that they are based on the same false assumption that Dr Knight made in relation to the Apgar scores. If that is so they suffer from the same factual defect and are contradicted by Dr Jones' contemporaneous findings. [42] Dr Nobbs is of the view, based on his experience of attending several hundred deliveries a year, a small number of which involve the use of narcotics and labour, that "Charlotte certainly did meet the standard criteria for giving Narcam". [43] Specifically on the question of the use of Pethidine, Dr Nobbs does not criticise practitioners for administering this analgesic but says "in doing so they must be prepared to reverse the effects of this if there is evidence of failure to respond to resuscitation or lack of respiratory effort". [44] Given the objective facts concerning Charlotte's appearance at birth and low Apgar scores, Dr Nobbs concludes that the failure to give Naloxone in this situation must mean that the attendant medical practitioner was absolutely certain that there was no involvement at all of Pethidine. In his view the facts were that the clinical description was very much that of a baby who did not respond adequately and therefore should have been given Naloxone. [45] Dr Nobbs also makes a number of ancillary criticisms of the facts upon which Dr Knight bases his opinion. In general terms his criticisms are supported by the material contained in Dr Jones' letter which does not appear to have been made available to Dr Knight. [46] Dr Nobbs' conclusion is: "Dr Knight and I have reviewed the same chart and have come to entirely different conclusions. It is my opinion that Dr Knight's case that Charlotte had a good respiratory status from 5 minutes of age onwards, as evidenced by her Apgar scores, is simply not sustainable from a careful review of the notes. Any such careful review would have established that the letter of Dr Jones does provide a good descriptive report on Charlotte's state during the first 10 minutes and this in no way corresponds to a baby who has established good or even adequate respiration. She did therefore meet the criteria in the American Academy of Paediatric Guidelines for the use of Naloxone to reverse the effects of maternally administered Pethidine. The Pethidine had been given to Mrs Dodd 41/2 hours before delivery and this is within the time period when post- natal effects on an infant can be expected." [47] That report was referred to Dr Knight, presumably about the time it was received by ACC. He responded in a letter to the Corporation some ten months later, once again with a detailed rebuttal of the points made by Dr Nobbs. [48] He accepts that he erroneously assumed that Dr Nobbs had not seen Charlotte's clinical record because it was not available to him from the ACC files. He re-analyses the material and says, "the only question outstanding is whether she should have had Naloxone before she was admitted at 10 minutes of age". He concludes: 8 "My opinion is that this was not mandated, the initial resuscitation was well done, Charlotte was treated with bag and mask ventilation to which she responded with her heart rate picking up well." [49] He remains of the view that Naloxone was definitely not indicated and could not "be construed as medical error". As to his opinion that Charlotte "had no post-natal respiratory depression", Dr Knight in his reassessment of June 2001 says he should have said that "she had no post-resuscitation respiratory depression". Submissions of Counsel [50] Unsurprisingly, both counsel draw attention in considerable detail to the parts of the medical evidence which support their respective client's cases, and it is not necessary that I traverse them in detail. [51] The crucial issue in my view is whether or not the administration of Temazepam and Pethidine to Mrs Dodd 41/2 hours prior to her delivery of Charlotte, caused the baby's undoubtedly distressed condition present immediately at her birth. If it did then the evidence is clear and uncontraverted that the medical staff attending the birth should have administered Naloxone as recommended in the American Academy of Paediatric Guidelines and also the relevant written material. [52] If such was required and not provided by the doctors concerned, then I do not understand there to be any debate between counsel that this would amount to a 'medical mishap" in terms of s.5(1)-(4) and s.8(2C) of the Accident Rehabilitation and Compensation Insurance Act. The real dispute in this case is an irreconcilable division of opinion between two highly qualified paediatric specialists. [53] It is always difficult for Courts to resolve such differences of medical opinion involving highly qualified specialists. [54] Judges of course are not medically qualified. Their job in cases such as this, is to analyse the available evidence and decide whether or not the party having the onus of proof has discharged that burden. [55] Traditionally, the Court carries out the task by applying the correct onus and standard of proof to the proven facts. It pays close regard to the opinions of eminent medical specialists based upon those facts, and attempts to test to its own satisfaction the inferences and conclusions drawn by them. [56] The onus lies upon the respondent. It is necessary that Mrs Dodd, on behalf of Charlotte, persuade the Court on the balance of probabilities that Charlotte is entitled to cover because she has suffered the consequences of a medical misadventure arising from a failure by the attendant medical professional to administer the correct and well-understood medical treatment after her birth. In doing that, she must satisfy the statutory tests and rule out the exceptions which might disqualify her. [57] In this case it is "medical mishap" which is in question and that means that the respondent must satisfy the Court that Charlotte suffered an adverse consequence of treatment by or at the direction of a registered health professional, properly given if: "(a) the likelihood of the adverse consequence of the treatment occurring is rare; and 9 (b) the adverse consequence of the treatment is severe". (58] The evidence clearly satisfied the Reviewer that the adverse consequence in this case can properly be described as rare. On the evidence available to me I agree. Clearly, the consequences to Charlotte can fairly be described as severe in the sense that the circumstances of her birth have left her with developmental problems of a significant order. In that context I am satisfied that Charlotte qualifies pursuant to subsection 4(b) in that she has had a significant disability lasting for more then 28 days in total. Indeed, on the evidence, it has now subsisted for some four years with every likelihood that her difficulties will continue into the future. [59] Approaching the matter in that way, and with all due respect to the firmly held views of Dr Knight, it is the careful rebuttal by Dr Nobbs of the crucial assumptions made by Dr Knight that carries the most weight with me. I am satisfied that the conclusions drawn by Dr Nobbs are soundly based on the objective facts existing at the time of birth. [60] Shorn of all of the medical complexity, I am satisfied that on the balance of probabilities, Dr Nobbs' opinion that Charlotte's state at birth was directly attributable to the administering of Pethidine and Temazepam to Mrs Dodds a relatively short time before Charlotte's delivery, and the failure to counter this with Naloxone was a significant cause of the distressed condition at birth. [61] I am further satisfied that the developmental difficulties which have flowed from that distress could have been significantly, if not completely averted by the timely administration of Naloxone, as is mandated in the literature, and required by good medical practice. This was not done and I am therefore satisfied that Charlotte has met all of the tests required to bring her within the definition of "medical mishap" with the consequence that she is entitled to all relevant cover in terms of the legislation. Leave is reserved to either party to apply if any other orders are required. Conclusion and Costs [62] The appeal is therefore dismissed. The respondent is entitled to costs. If the parties cannot agree on the amount then the applicant for costs may submit a memorandum within 10 working days of the date of receipt of this judgment and the other party may file and serve a memorandum in reply within 10 working days of receipt of the applicant's memorandum. DATED at WELLINGTON this 3 rd day of October 2001 A A P Willy District Court Judge ai331-97.doc(sh)