Love v Accident Compensation Corporation

IN THE DISTRICT COURT HELD ATAUCKLAND Decision No. 24 8 /2001 IN THE MATTER of The Accident Insurance Act 1998 AND IN THE MATTER of an Appeal pursuant to Section 152 of the Act BETWEEN ANA LOVE AI 612/00 Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on the 19th day of June 2001 APPEARANCES: Ms A Love in person Miss J Silcock and Miss F Becroft counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the respondent's decision, dated 30 June 2000, declining cover to the appellant in respect of her claim for personal injury by medical misadventure, was correct. [2] The facts which are relevant to the determination of this issue, as I find them to be, are as follows. [3] On 27 January 2000 the appellant lodged a claim for cover with the respondent claiming that she had contracted Hepatitis C as a consequence of a blood 612 00Love.doc(gm) transfusion which she said she had received at National Women's Hospital in Auckland on 2 July 1982 in the course of surgery for the removal of an inter uterine contraceptive device and its replacement with a new device. [4] The appellant had given birth to her first child in February 1982 and six weeks after the birth she had had the IUCD inserted at St Helen's Hospital and it was as a consequence of subsequent discomfort that she suffered that she sought treatment at National Women's Hospital and at which time the device was found to have been incorrectly placed and was therefore removed and replaced. [5] At the time nothing more was done and the appellant continued on with her life and had three further children. It was not until she underwent a routine blood test in 1995 that it was discovered from those blood tests that she was carrying the Hepatitis C Virus (HCV). [6] The appellant subsequently received treatment for her condition and it was not until January 2000 that the appellant lodged a claim for cover under the Act alleging medical misadventure arising out of a blood transfusion which she said she was given at the time her IUCD was removed and replaced in July 1982. [7] In evidence before me the appellant said that she was under anaesthetic for the purposes of the operation and it was only after she had come out of that anaesthetic and was feeling somewhat dizzy that the matron told her that she had lost a lot of blood and that she had been given a blood transfusion for this reason. [8] This is in general what the appellant had previously advised the respondent in the course of providing details of her claim and for this reason the respondent arranged for Dr M A H Baird, the Medical Advisor to the General Manager at National Women's Hospital to examine the records of the appellant's treatment at National Women's and to report on same. [9] Dr Baird reported to the Medical Misadventure Advisory Unit that he had examined all clinical records and there was no indication of any transfusion of blood products on any occasion that the appellant had been a patient at that Hospital. [10] The same decision was also reached by Dr Ross Henderson, Consultant Haematologist at North Shore Hospital, who had also been requested to review the 612 00Love.doc(gm) 2 case. Dr Henderson advised the Medical Misadventure Advisory Committee as follows: "I have reviewed all correspondence, laboratory data, fluid balance sheets, hospital notes sent to me on this claimant. Ms Love was found to be infected with with Hepatitis C Virus in 1995. She attributed the source of the HCV to a blood transfusion she had while an inpatient at National Women's Hospital in 1982. However, an extensive review of the Hospital notes from the admission to National Women's Hospital in 1982 there is no record of Mrs Love having received the blood transfusion." [11] The note goes on to indicate that correspondence from Dr Ed Gane, Consultant Gastroenterologist, noted that the appellant had used intravenous drugs between 1980 and 1991 which included sharing a needle from syringes. He noted this was almost certainly the source of her infection. [12] The reference to the appellant's use of intravenous drugs was first made in a report by Dr Rafeq Ali, Gastroenterologist, in November 1995 when he reported to the appellant's GP following the discovery of the appellant being positive to HCV. Dr Ali quoted in his report that the appellant had said to him that she had used intravenous recreational drugs between 1980 and 1991 and had shared needles and syringes. [13] In evidence given before the Review Officer the appellant denied that she had ever taken recreational drugs intravenously and said that Dr Ali had misunderstood her. She said that Dr Ali had simply assumed that she had taken drugs intravenously because of the fact that she was HCV positive. [14] In her submissions to the Court, the appellant reaffirmed her belief that she had received a blood transfusion in July 1982 and that this must be the source of her infection. She denied that the source of infection could have been from any intravenous use of recreation drug as she denied any such use. [15] Miss Silcock, counsel for the respondent, submitted that the onus was on the appellant to prove her claim and that the evidence fell short of that. She submitted that there was no evidence that the appellant had received a blood transfusion and therefore there was no evidence which could give rise to a claim for medical misadventure. 612 00Love.doc(gm) DECISION [16] Although this is a claim for medical misadventure, the particular determination of that issue is one which in the present case rests solely on a finding of fact, and that is whether this appellant did or could have received HCV infection as a consequence of a blood transfusion administered to her whilst receiving treatment at National Women's Hospital in July 1982. [17] It can be taken as read that if indeed the appellant had been infused with contaminated blood then that would give rise to a clear case of medical misadventure and there can be no dispute about that as a matter of law. [18] Although the Court was not provided with medical evidence on the point, it is to be noted that the alleged transfusion is said to have occurred in 1982 and yet for the next 13 years the appellant was living normally, it would seem, without the HCV being identified or detected. In the course of those 13 years, the appellant had three further children and she had blood tests and check-ups in relation to those pregnancies and no indications of HCV were found. This in itself must be an indication that the likelihood of HCV having been transmitted by a transfusion in 1982 must be considerably remote. [19] However, I do not find that the matter needs to be decided on that particular type of deduction from known evidence, as I am satisfied that there is clear and hard evidence from the clinical notes made at the time by the treating professionals that no blood transfusion was administered to the appellant. Those notes, have been examined by two independent experts and they independently confirm that no transfusion was provided, nor indeed was it a procedure where a transfusion might be considered likely. [20] The only "evidence" of a transfusion is a purported statement by a person described as matron who mentioned the fact of a transfusion to the appellant at the time she was recovering from the operation. [21] That evidence, I find, falls short of establishing the fact of a blood transfusion on the balance of probabilities and cannot displace the hard evidence of the clinical records. 612 00Love.doc(gm) 4 (22] Accordingly therefore, I find that the appellant cannot establish that she has suffered personal injury by medical misadventure. Although her subsequent diagnosis as being HCV positive is undoubtedly a terrible thing to have befallen her, it is nevertheless something which cannot be compensable under the Accident Insurance Act as there is simply no evidence that her unfortunate condition was as a consequence of medical treatment. [23] For the foregoing reasons therefore, this appeal is dismissed. DATED at WELLINGTON this 6 day of September 2001 M J Beattie District Court Judge 612 00Love.doc(gm)