AME v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 55 198 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ANNA MARIE ENOKA DCA 332/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of March 1998 APPEARANCES: Mrs A de Jonge advocate for appellant Miss E Long for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation and the Review Officer were correct in their decisions to decline the appellant's claim for cover in respect of personal injury by 2 reason of medical misadventure being benzodiazepine addiction arising from inappropriate prescription of those drugs. A summary of the background facts of this case is best encapsulated in the report by the appellant's GP Dr Bayston to the Medical Misadventure Advisory Committee on 13th March 1996 which stated as follows: "Her psychological problems became evident in 1968 when she was alone with a young baby and experienced house damage during the 'Wahine' storm. She had an acute panic attack which would not settle and was treated with Chlordiazepoxide. Over the next 4 years, she experienced recurrent panic attacks superimposed on a chronic anxiety state and became increasingly agoraphobic. She had episodic use of Diazepam during that time. She did not admit to the agoraphobia until her husband came to see me about it. In 1975 she accepted a referral to Manawaroa Psychological Unit in Palmerston North Hospital where she was seen by Dr M Durie. Subsequently in the next four years she had further panic and phobic attacks which were initially treated episodically with Diazepam as discussed with Dr Drurie. Increasing problems led to the prescription of Lorazepam for her attacks as it was understood to be more effective in phobic anxiety and less prone to habituation. 1978 to 1980 her chronic anxiety state and phobic problems remained at a high level and she was only coping with the situation by increased and then regular use of Lorazepam. She had not accepted referral again, until 1980 when she accepted a referral to Porirua Hospital where she attended regularly for much of 1981 but without being able to reduce the Lorazepam. At this point she was taking 2mgms t.d.f. 3 In 1981 she joined an Agoraphobic group in Porirua but anxiety levels and panic attacks remained frequent, exacerbated by her husband requiring surgery for subarachnoid haemorrhage. During 1982, she attended Dr Perera at Porirua Hospital and during this year I continued to try and reduce her Lorazepam but with little effect. In October 1984 she was able to reduce the Lorazepam use and was being seen by Dr R Simons, psychiatrist at Levin and the same medications were being prescribed. In 1984-1986 there were high stress factors relating to her mother's seriously declining health due to dementia with Mrs Enoka accepting responsibility for her personal care in Mrs Enoka's home. During this time she felt unable to accept clinical referral but was able to half her Lorazepam dosage to Imgm t.d.s. in gradual steps until, 1987-988 further family stresses occurred with her son having behavioural and drug problems. In 1989, Mrs Enoka accepted re-referral and she saw Dr Barbara Simons at the Mental Health Team at Horowhenua Hospital that had been established by then and was followed by them until 1994. During 1990, her prescriptions of Lorazepam and Clomipramine continued with increased Lorazepam usage at 4mgm per day and during a severe panic-anxiety episode she had 2 weeks on Melleril 25moms daily in addition. In 1991, the Mental Health Team were unable to reduce her Lorazepam and so began an exchange to Alprazolam and then to reduce her Diazepam. By December 1993, she was off all benzodiazepines and by June 1994, discontinued Clomipramine. By November 1994 she continued to feel low level anxiety but denied panic attacks and although feeling low in self confidence, had clearly increased in determination and had benefited considerably from counselling and self development courses. Her agoraphobia had receded considerably. In November 1995, she continued to have anxiety symptoms and was offered further referral but this was declined. I enclose photocopies of correspondence received from psychiatric services. Mrs Enoka was certainly informed about the addictive potential of her medications. Her medications were initially intermittent but as her incapacity increased and regular prescriptions became necessary to manager her severe disabilities, this was discussed further and regular attempts were made to get her to try and reduce those dose levels." The Medical Misadventure Advisory Committee considered Dr Bayston's report and the reports which had been compiled over the years of her treatment by various psychiatric services and thereafter issued its first report on the 22nd April 1996 when it stated as follows: "The Committee has noted the reasons for which Mrs Enoka was prescribed initially Lorazepam in 1968 and following this Diazepam and later Lorezapam. This was a serious history of panic disorder and agoraphobia and as such the prescribing of benzodiazepines were appropriate. The Committee is unable to establish that Mrs Enoka has experienced personal injury as a result of being prescribed benzodiazepine, and as a result of any withdrawal from this medication. In the event that a personal injury were established, the Committee is satisfied that the prescribing of benzodiazepines was appropriate given Mrs Enoka's history of panic disorder and agoraphobia and there is nothing to establish medical error in this case. Accordingly the recommendation of the Committee is no personal injury has been established and there is no medical error in this case, that the claim be declined to become final after 15 working days." 5 The appellant and her advisers were given the opportunity of commenting on that interim decision and it made a further decision on the 12th August 1996 stating as follows: "The Committee initially considered this claim on the 22 April 1996, at that time it had a very full discussion on the information before it and considered very carefully the reports from the various health professionals who were responsible for Mrs Enoka's care in the period since 1968. The Committee was unable to establish that Mrs Enoka had experienced a personal injury as a result of being prescribed benzodiazepines and the Committee was also satisfied that there was no medical error had a personal injury been established. A further letter has been received from Mrs Enoka which is dated 15 May 1996, in this, she provides further explanation of the effects of the drug, ie. Valium and Melleril. The Committee has carefully considered the further information supplied by Mrs Enoka. However there is nothing in that letter that would cause the Committee to resile from its previous recommendation that the claim be declined." At the review hearing Mrs de Jonge presented a number of writings concerning the prescription of benzodiazepines and the effect of long term use and she submitted those same articles at the hearing of this appeal. The Review Officer came to the decision that there was no medical evidence of a personal injury as that is defined by the 1992 Act. He further stated that even if it were to be established that the appellant had suffered a personal injury he found that the prescription of benzodiazepines was appropriate because of the appellant's history of panic disorder and agoraphobia. He followed the finding of the Medical Misadventure Advisory Committee that there was no evidence to establish any medical error in this case. For the purposes of this appeal the appellant obtained leave to introduce a medical report from Dr M E Vijayasenan, a consultant psychiatrist. Dr Vijayasenan saw the appellant in November 1997. Relevant parts of his report are as follows: "She complains of having fear of open spaces with panicky attacks for the last 25 years. The onset seemed to have occurred suddenly during the 'Wahine Storm' in 1968 and has increased so in the subsequent years. She saw her GP for the above and he started her on benzodiazepine drugs which helped her initially. These were Diazepam and Chlordiazepoxide. She started getting panicky attacks with attacks of depression which made her condition worse and the dosage of benzodiazepines was increased. At times she was feeling hopeless with ideas of despair, but not felt suicidal. In the last six years she has been helped by various health agencies including the hospital services and she is proud to state that she stopped all benzodiazepines for the last 31/2 years and all other psychotropic medications such as Clomipramine (Anafranil) for three years. She is not on any medication at present neither under the care of any specialist dealing with addiction. She stopped working altogether following the birth of her first child and at the same time the Wahine storm occurred giving rise to her panicky state with phobic features mainly agoraphobia to start with, then progressed to general pan-anxiety state. The storm, she elaborates, was a big one causing a lot of damage to her home in Otaki. She no longer at present has any panicky attacks as these stopped four years ago. . .. In my view, this is a person who suffered from phobic anxiety state together with general pan-anxiety state, together with benzodiazepine addiction. From what she stated and from going through some of the medical reports together with hospital reports it seems to me that she has stopped taking benzodiazepine all together and has no clinical evidence of benzodiazepine withdrawal during this assessment. She has a mild anxiety state which is not pathological under the circumstances and in my view she seems to be coping reasonably well with life in general and also proud that she has been able to kick the habit with benzodiazepines." For the appellant to have cover under the Act she must show (a) she has suffered personal injury and (b) that her personal injury is the result of medical misadventure. Medical misadventure is defined in the Act as meaning personal injury resulting from medical error or medical mishap. In this case there is no suggestion of medical mishap. Medical error is defined as meaning "The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because the desired result is not achieved or because events show that different decisions might have produced better results." Mrs de Jonge submitted that the medical error in this case was the continued prescription of benzodiazepines for the appellant for no good reason, that there was a lack of informed consent and that it was the long term prescription of benzodiazepines which caused the symptoms of agoraphobia. In support of that submission she referred the Court to various articles which have been written about the taking of benzodiazepines, their effects, and the withdrawal syndrome that can arise. In these various articles, all of which I assess as being from respected publications, it is first of all stated that there is little evidence to support the idea of benzodiazepines being effective in long term use. According to the New Zealand Department of Health in a paper published in March 1989 the anxiolytic effect does not seem to last beyond four months use and the hypnotic effect is of much less duration being no more than 14 days of continuous use. It is on the strength of that opinion that the appellant now contends that the long term prescription was in fact an act of negligence by the appellant's GP. She contends that there was a continued prescription of these benzodiazepines for no good reason. Mrs de Jonge refers to other papers where the continued taking of benzodiazepines can themselves induce symptoms of disturbed sleep, anxiety with panic attacks and agoraphobia. She also refers to literature where the side effects of the drugs are documented and contends that the clinical evidence pertaining to the appellant confirms that she has suffered over the years the side effects which those articles relate. She also refers to a report of Dr Richard Brooks, a medical officer with the Manawatu Wanganui Area Health Board - Mental Health Centre who in a report to the appellant's GP on 15 August 1991 stated: "On interview it was quite clear that Mrs Enoka suffers from overwhelming anxiety. She also suffers from agoraphobia and more often than not gets others in the family to do her shopping and general duties for her, She also suffers from disabling panic attacks currently around one to two every day lasting 15 to 20 minutes. She also from time to time is experiencing choking and swallowing problems associated with her anxiety which could correctly be called 'globus hystericus'. This woman is clearly profoundly disabled by her difficulties which are very longstanding in nature. Despite the unusually large doses of benzodiazepines there seems little evidence that they are conferring her any benefit." Miss Long for the respondent submits that there is insufficient evidence to show that the appellant suffered personal injury either through the prescription or withdrawal from benzodiazepines and in particular there is no medical evidence to contradict the finding of the Medical Misadventure Advisory Committee that the appellant did not suffer a personal injury as a result of being prescribed benzodiazepines. It is further submitted that even if it were to be established that the appellant did suffer personal injury there is no evidence to establish that this was as a consequence of medical error. There is no evidence to show that there has been a failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. In particular she refers to the fact of the Medical Misadventure Advisory Committee finding that the prescribing of benzodiazepines was appropriate given the appellant's history of panic disorder and agoraphobia. As I have stated in a previous decision of Higgins (Decision5 4/98) in the absence of cogent expert evidence which directly addresses the issues which the Medical Misadventure Advisory Committee were required to address, this Court will not interfere with findings by that committee after its due deliberation. In this particular case the only further evidence from that which the committee had is that of Dr Vijayasenan. I find that his opinion does not in any way conflict with that of the committee and indeed in a further letter of 9 January 1998 he stated that he was not in a position to comment on the issue of lack of informed consent, long term prescribing of harmful drugs and the effects of withdrawal as his earlier report was based on information the appellant herself had given him and he had not had the opportunity of looking at the case file from the hospital and other doctors who had been involved in her treatment previously. The committee was quite clear in its finding that the continued prescription of benzodiazepines for this appellant were necessary for the treatment of her anxiety and agoraphobia. Indeed even Dr Brooks, who may have questioned the continued prescription himself, prescribed her diazepam and introduced her to a diazepam substitution programme. I find that there is simply no evidence whatsoever upon which this Court could come to a finding that medical error has occurred in the prescribing of benzodiazepines for this appellant. Furthermore there is no evidence which would contradict the findings of the committee Medical Misadventure Advisory Committee. 10 Accordingly this appeal is dismissed. DATED at WELLINGTON this 25 day of March 1998 M J Beattie District Court Judge Enoka.doc KD