Cook v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 1 15/95. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19/ 94 / 0066 19/ 94/ 0101. BETWEEN ANN THERESE COOK of Tauranga Appellant (Appeal No. DCA 99/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of July 1995 APPEARANCES L R Kaye for appellant P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON This appeal raises two issues being: 1. Whether the appellant's claim should be decided under the terms of the Accident Compensation Act 1982 or under the Accident Rehabilitation and Compensation Insurance Act 1992; and 2. Whether the appellant suffered medical misadventure which entitles her to cover. The appellant lodged a claim for cover with the respondent on 29 March 1993 in which she stated that her injury was "tubal pregnancy after sterilisation in 1986". The certificate supplied with the claim for cover noted that the appellant's first treatment for the injury was on 22 March 1993. The respondent referred the claim to its Medical Misadventure Advisory Committee as referred by section 5(9) of the 1992 2 Act. Dr Brenner, the appellant's specialist reported to the Medical Misadventure Advisory Committee on 14 July 1993 and said: "I performed a tubal ligation on this patient on the 09/09/86 through Mini- laparotomy. Specimens of the tube were obtained and sent for histology. These were histologically confirmed and I enclosed herein a report of the operation notes and the histology showing fallopian tube segments. Ectopic pregnancies are well described complication following tubal ligation." The file discloses that the appellant's General Practitioner Dr Dean considered that on 22 March 1993, the appellant was suffering from appendicitis. This was followed by a report to the appellant's General Practitioner, Mr Thomson, an Obstetrician and Gynaecologist at the Tauranga Hospital but said on 24 March 1993: "I was asked to see this patient who, at your request, was admitted the other night under Mr Kumar's care because of lower abdominal pain and one or two other symptoms such as pain in the buttocks and an otherwise apparently normal period starting a week late and so on. She had been sterilised several years ago but was found to have weakly positive pregnancy tests and a Beta HCG of 724 certainly indicated a pregnancy although this could not be verified on a scan which the surgeons had ordered. She was on my Theatre list today for Laparascopy to exclude an ectopic. I did in fact find a right tubal pregnancy in the ampullary part of her previously interrupted right tube and she had been leaking some clot through the fimbriated end. The pelvic findings were otherwise as expected. Treatment was by bilateral Salpingectomy taking into account the failed sterilisation." The Medical Misadventure Advisory Committee also received a submission from the appellant and in its report of 17 February 1994, the Committee noted: "DISCUSSION: The Committee have considered all the evidence on this case, along with their previous discussions regarding whether or not pregnancy is a personal injury. The Committee believe that this woman has suffered an injury as she has had an ectopic pregnancy, which required further surgery. The Committee are of the opinion that this occurred due to tubal damage sustained at pregnancy is far more likely to occur in a woman who has had a tubal ligation than under normal circumstances. It does, however, still meet the grounds for rarity, as the chance of ectopic pregnancy occurring after tubal ligation is around 1 in 3000 cases. The case also meets the grounds for severity, as a further operation was required and the recovery time from this would constitute 28 days significant disability. 3 MEDICAL ERROR: The complication is not considered to have been due to a failure by the registered health professional to observe a standard of care and skill that was reasonable in the circumstances. MEDICAL MISHAP RARITY: The adverse consequence of the treatment is rare, as the probability that it would occur is less than 1% where that treatment is given. SEVERITY: The adverse consequence of the treatment is severe as there was significant disability lasting more than 28 days in total. FINAL ADVICE: The proposed advice of the Committee is confirmed and the final advice of the Committee is that there is no evidence of medical error and that the grounds for medical mishap have been met. Accept claim for cover." On 11 July 1994, the respondent advised the appellant that her claim for cover was declined on the grounds that "the claim does not satisfy the criteria in the Act for medical misadventure because a causal link can not be established between ectopic pregnancy and a sterilisation because there are other intervening factors and it is also a naturally occurring event." The appellant applied for a review of that decision. Although the 1992 Act provides that the respondent can be represented at the review hearing, it elected not to be represented at this appellant's review which took place on 2 December 1994. The review officer indicated to counsel for the appellant that she and a colleague had queried the Corporation's policy of declining applications involving pregnancy following tubal ligation. She provided appellant's counsel with a copy of the Respondent's Policy Memorandum which followed her query. The review officer elected to follow the respondent's policy and declined cover in respect of the claim for medical misadventure. The review officer also held that pursuant to section 135 (5) of the 1992 Act, the claim feel to be considered under the 1992 Act. Mrs Kay submitted that the review decision gave rise to three issues: 1. Whether there is medical misadventure being either medical error or medical mishap. 2. Whether the appellant is entitled to lump sum compensation under the 1982 Act. 3. Whether the review officer is bound by the respondent's policy. 4 In relation to the question of medical misadventure, Mrs Kaye submitted: 1. That in relation to medical error section 5 of the 1992 Act stated that there must be error at the time of the original treatment or procedure, whereas the definition of medical mishap means an adverse of treatment which can only be ascertained where the applicant has been a hospital in-patient for more than 14 days in order to determine the issue of "severity" 2. That following the decision in ACC v XY (1983) 4 NZAR 219, it had been accepted under the 1982 Act that pregnancy following sterilisation qualifies as a medical misadventure and that following the decision in Easther v ACC [1992] NZAR 49, the completion point for medical misadventure is when all the consequences are known. 3. That the respondent had ruled that there was neither medical error nor medical misadventure in this case based on its policy statement of June 1994, in spite of the fact that Medical Misadventure Advisory Committee was of the opinion that a medical mishap had occurred at the time of the original procedure. 4. That the respondent did not satisfy the obligations on it under section 5(9) of the 1992 Act to have regard to the advice of the Medical Misadventure Advisory committee. 5. That the medical error or medical mishap was the damage to her fallopian tubes at the time of the procedure in 1986 and that a medical error occurred in the failure to diagnose a pregnancy at the time of the procedure in September 1986 which led to an abortion in 1986 and was followed by the ectopic pregnancy in 1993. 6. That the appellant's claim is not for a normal pregnancy and birth following sterilisation, but for the problems which occurred immediately before and at the time of the tubal ligation followed by the ectopic pregnancy. In relation to the question as to which Act applies, Mrs Kay submitted: 1. That pursuant to the provisions of section 135(5) of the 1992 Act, the appellant is entitled to cover under that Act. 2. That pursuant to section 147 of the 1992 Act, the appellant is entitled to make a claim for lump sum awards. 3. That if the appellant satisfies the requirements that she has suffered a medical misadventure under both the 1992 and the 1982 Act then pursuant to section 135(5) of the 1992 Act, she has cover under that Act. 4. That at the time the appellant's claim was lodged, she had entitlement under section 147 because the amendments in subsection (2A) did not come into force until 1 July 1993. 5 5. That the specific provisions of section 147 override the provisions of section 135. 6. That the effect of the 1992 Act created a retrospective of abolition of lump sum awards thus impairing applicants' rights, and to that extent was contrary to legal principle. 7. Both section 63 and 147 of the 1992 Act have been amended by Accident Rehabilitation And Compensation Insurance Amendment Act 1993 in which sections 3, 5, 7, 8(3), 11 and 34 of the Act are retrospectively amended from 1 July 1992 while all the other amendments have effect from 1 July 1993 8. That the respondent is wrong to retrospectively apply policy determined in July 1994 to a claim lodged in March 1993 regarding a misadventure which occurred in 1986. 9. It has been the respondent's policy to accept entitlements for election to a lump sum where treatment has been sought before 1 July 1992. 10. That this appellant sought treatment in 1986 and therefore qualifies for cover. In relation to the issue of whether the review officer was bound by Corporation policy, Mrs Kaye submitted: 1. That it had been accepted under the 1982 Act that the respondent's policy was binding on review officers. 2. That section 90 of the 1992 Act requires the person appointed to hear the review, to act independently. 3. That the review officer was wrong to conclude that she was bound by Corporation policy. Mrs Zumbach submitted: 1. While the respondent appears to have accepted that the appellant suffered personal injury in September 1986, that issue is arguable. However, she noted that the claim for cover was not lodged until March 1993 so that in terms of section 135 of the 1992 Act, the issue falls to be considered under that Act. 2. That by virtue of section 63(3), the personal injury is deemed to have been suffered on the date on which the person first received treatment for that personal injury. 3. That the respondent had in some cases accepted ectopic pregnancies as coming within the definition of personal injury by accident under the 1982 Act as being included in medical misadventure. The expression personal injury was not itself defined under that Act. It followed from that if there was medical misadventure there was personal injury by accident and, therefore, cover. 6 Thus, under the 1982 Act that the injury took its character from the medical misadventure. However, she submitted that to qualify for medical misadventure under section 5 of the 1992 Act, there must be "personal injury resulting from medical error or medical mishap". That in her submission provided a requirement that there must first be personal injury. 4. Accordingly, under the 1992 Act, personal injury is a condition precedent which must result from medical error or medical mishap, in the sense that, one must cause the other. For example, she said that the appellant's personal injury, being an ectopic pregnancy, must be the result of the medical treatment. 5. The 1992 Act provides the detailed definition of medical misadventure which was not defined under the 1982 Act. That medical error is defined as the failure of a registered health professional to observe the appropriate standard of care, while a mishap is the adverse consequence of treatment by a registered health professional by appropriate rarity and severity. The mishap must, therefore, be the consequence of that treatment and it must be an adverse consequence of appropriate rarity and severity 6. That the appellant's personal injury being her ectopic pregnancy, it must have resulted from medical error or medical mishap as defined in section 5. 7. The medical evidence does not substantiate that medical error occurred in the performance of the operation, tubal ligation in September 1986 in that there is no evidence to suggest that the manner in which the operation was performed, demonstrated a failure of the surgeon to observe a standard of care and skill reasonably to be expected in the circumstances. 8. That there was no medical mishap within the meaning of that phrase in section 5. Ms Zumbach submitted that the Medical Misadventure Advisory Panel appeared to have confused the requirement that the medical mishap must arise from "an adverse consequence of treatment" with the appellant's personal injury per se; it is her ectopic pregnancy. That the respondent is not bound to accept the advice of the Medical Misadventure Advisory Committee but does have a duty to ensure that the advice is in compliance with its legal and statutory obligations. 9. That while the respondent concedes that the likelihood of an ectopic pregnancy occurring is rare and the adverse consequences of such a pregnancy are severe, it cannot be said that the appellant's ectopic pregnancy is the adverse consequence of treatment by or at the direction of a health professional. Ms Zumbach submitted that it cannot be said that the personal injury resulted from the medical treatment she received in September 1986. 10. That the medical evidence does not link the operation in 1986 with the ectopic pregnancy in 1993. While Dr Brenner has stated "Ectopic pregnancies are well described complications following tubal ligation", he does not say that this appellant's ectopic pregnancy was as a result of the tubal ligation. Ms Zumbach 7 submitted that the risk of ectopic pregnancy is higher in women who have had tubal ligations and they can also occur naturally and that it cannot now be said that but for the treatment she received in 1986 she would not have suffered an ectopic pregnancy in 1993. 11. That while the Medical Misadventure Advisory Committee recognised that damage was done to the tube at the tubal ligation, the respondent submits that the tubes are intentionally damaged in the course of that operation. The three issues before me appear to be: 1. Whether there is a medical misadventure. 2. Whether the appellant is entitled to lump sum compensation under the Accident Compensation Act 1982. 3. Whether the review officer is bound by the respondent's policy. The Medical Misadventure Advisory Committee was satisfied that the appellant had suffered a medical mishap which in their opinion entitled the appellant to cover under the 1992 Act. In terms of the 1982 Act, the opinion of the Committee was that the appellant had suffered an injury by way of an ectopic pregnancy which required further surgery and that this arose out of the tubal damage sustained at the time of the tubal ligation in September 1986. As the appellant did not lodge her claim with the respondent until 29 March 1993, the transitional provisions of the 1992 Act have to be considered. I agree that Mrs Kaye's submission that s. 135(5) must apply because the appellant is a person who has suffered personal injury by accident under the 1982 Act, that she had not lodged a claim with the respondent before 1 October 1992 and the personal injury by accident is also personal injury which is covered by the 1992 Act. The question of entitlement under the 1992 Act is covered by s.147. The appellant is a person who had entitlement under the 1982 Act for which she had not received compensation for which she has made a written application for that compensation before 1 April 1993. While the respondent has submitted that the appellant's claim is defeated by the provisions of s.147(2A) of the 1992 Act on the grounds that the claim had not been lodged with the respondent before 1 October 1992, I agree with Mrs Kaye's submission that that decision is wrong because s.147 (2A) was an amendment to the original s.147 and did not come into effect until 1 July 1993 after the appellant had lodged her application. While the 1993 amendment to the Act provides that certain provisions in the amendment were to be retrospective, this did not apply to s.147. Consequently, Mrs Kaye's submission is correct and the failure to lodge the claim before 1 October 1992 does not affect this appellant's position. Accordingly, the appellant at the time she lodged her claim had an entitlement in terms of s.147 of the 1992 Act. However, there is a distinction between "cover" and 8 "entitlement" and in the case of the 1982 Act, entitlement does not require the lodging of a claim, but exists from the date of injury. In her decision, the review officer stated that she was obliged to follow the respondent's policy in relation to medical misadventure, in spite of her own doubts that that policy was correct. While it has been accepted that under the 1982 Act review officers were bound to follow Corporation policy s.90 of the 1992 Act requires the review officer to Act "independently". I accept Mrs Kaye's submission that the review officer was wrong to follow her own opinion in favour of Corporation policy. I therefore consider that the appellant has satisfied the test that she is entitled to claim for lump sum awards under the 1982 Act on the basis of the transitional provisions of the 1992 Act in that a medical misadventure occurred before 1 July 1992, that it is personal injury by accident within the meaning of the 1982 Act and that she had entitlement under the 1982 Act. Furthermore, the claim was lodged after 1 October 1992 and in accordance with the findings of the Medical Misadventure Advisory Committee is also personal injury under the 1992 Act. The appeal is therefore allowed and it follows that the appellant will be entitled to make an election for a lump sum award. There will be costs of $800. DATED at WELLINGTON this 5 uh day of October 1995 Howundaula A W Middleton District Court Judge dca99-95.doc (nr)