BB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 98 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BARBARA ANN BELL of Auckland Appellant (Appeal No. DCA 98 /96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 13th day of March 1996 APPEARANCE/COUNSEL Appellant in person Mr A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has suffered a medical misadventure. While the hearing took place in March 1996 the issue of this decision has been delayed because the appellant raised the issue that the Medical Misadventure Advisory Committee had not considered the question of whether the surgeon who performed the tubal ligation was negligent in failing to secure the safety of the previously excised right fallopian tube. In order to deal with the appellant's concern 2 memorandum requesting further information from Dr D Court who had been a member of the Medical Misadventure advisory Committee which considered the appellant's claim. Unfortunately, there was some delay in communicating with Dr Court but now his opinion has been received I am able to deal with the appeal. The appellant lodged an application for cover with the respondent on 7 July 1993. Her claim was that she had suffered "pregnancy following (L) tubal ligation & previous (R) ectopic patent (R) fallopian tube" The date of injury was stated to be 31 May 1993. The information was that the appellant had undergone a tubal ligation at some time in the late 1980s. After considering the claim the Medical Misadventure Advisory Committee reported to the respondent: "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 the tubal ligation. 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 - the adverse consequences was rare and there was a significant disability lasting more than 28 days. Final Advice - "... final advice is that cover be accepted as medical mishap has occurred'." In spite of the finding of that report, the respondent notified the appellant on 19 August 1994 that it declined to grant cover. The appellant applied for a review of that decision. The appellant gave evidence to the review officer in which she stated that the surgeon who had performed the ligation had assumed that only the left-hand side fallopian tube needed to be tied as the right side was somewhat withered and this was confirmed in a letter from the surgeon. The appellant stated that she had her first ectopic pregnancy some eight years prior to the 1993 pregnancy and it was at that time that she elected to have a tubal ligation. The appellant submitted that she could not understand why the respondent did not accept the recommendation of the Medical Misadventure Advisory Committee. The review officer took the view that the respondent's policy following the inception of the Accident Rehabilitation and Compensation Insurance Act 1992 was that the occurrence of an ectopic pregnancy following a failed sterilisation did not qualify for cover under the 1992 Act. The reason for that policy was that cover can only be granted where the applicant has, in addition to being the subject of a medical error or 3 medical mishap, suffered a personal injury and that an ectopic pregnancy is not accepted as an injury. This policy has been formulated on the basis that there is not a direct causal link between the pregnancy and the medical treatment provided to the claimant because the pregnancy was not caused by the medical treatment but by the intervening factor of sexual intercourse, or natural recanalisation of the fallopian tubes. The policy further states that by virtue of s.5(5) of the Act an injury can only be considered as a complication of medical treatment if medical error or mishap occurred at the time of the treatment and that even if medical error did occur during a sterilisation operation the necessary causal connection is not established because of the intervening factor of intercourse. The review officer considered she was bound to follow that policy and declined the application for review. It is against that decision which the appellant now appeals. The appellant again submitted to the Court that she could not understand why the advice of the Medical Misadventure Advisory Committee was not sustained. She submitted that she had suffered unnecessary stress and mental worry as a result of the unwanted pregnancy. She submitted that the surgeon who performed the ligation operation was negligent in failing to report that he had tied only one tube and not the other. In the report now received from Dr Court, he considered that: 'For pregnancy to have occurred tubal patency of some kind must have occurred; that is, a physical continuum between ovary, tube and uterus; in order for spermatozoa to 'access' the ovum. In the absence of demonstrated patency (through recanalisation) of the clipped left tube, the most likely explanation is that the right cornual stump was patent. In my opinion a prudent surgeon would have been aware of the possibility of cornual-stump patency, and (assuming that there was approximately 1cm of stump- length allowing clipping to be technically possible) would have clipped the right cornual stump to have minimised this possibility. It is probable that the failure to do so was causative of the ectopic pregnancy." In a further confirmation Dr Court stated: 'I believe it follows from my opinion that as a prudent surgeon would have been aware of the possibility of cornual stump patency that failure to occlude by clipping or other technique the cornual stump in question, constitutes medical error." Mr Barnett submitted that before the appellant is entitled to cover it must be demonstrated that she has suffered a physical injury as a result of the failed tubal ligation. He submitted that while an ectopic pregnancy is abnormal and an undesired event it can occur naturally and is a physiological function which does not come within the character of a physical injury. In the alternative, Mr Barnett submitted that by reason of the wording of s.5(5) the appellant's claim to have suffered a medical misadventure is excluded. He submitted that in order to qualify for cover for a medical error or medical mishap, it 4 must occur at the time of the procedures otherwise medical misadventure is excluded by the wording of s.5(5). As the claim arose in July 1993, it must be considered under the provisions of the 1992 Act. Section 5 of that Act defines "medical misadventure" as "personal injury resulting from medical error or medical mishap". Under s.4 "personal injury" is defined as: "The death of, or physical injuries to, a person and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by s.8(3) of this Act." Similar issues came before the Court and in DK v ARCIC (1995) NZAR 529 when the Court held that "pregnancy and subsequent abortion from a failed sterilisation operation did not constitute a personal injury". This finding followed a number of previous cases in which the Court held that "pregnancy was not a personal injury." It is interesting to note that in the DK case a similar position arose to the position in this case in that the Medical Misadventure Advisory Committee in that case considered that that appellant had suffered a medical misadventure. That opinion was rejected by the respondent and the Court upheld the respondent's decision that there had to be a personal injury as a result of the medical error or medical mishap and that a pregnancy did not constitute such a personal injury. The Court further rejected that appellant's submission that the mental anguish she suffered as a result of the unwanted pregnancy and abortion did not come within the definition of personal injury. While the Medical Misadventure Advisory Committee considered that there had been a medical mishap that by itself is not a sufficient ground to establish cover because the requirement of the Act is that there must also be personal injury (as defined in s.4). On that basis I do not consider that the additional opinion provided by Dr Court is sufficient to change that position. He suggests that there may have been a medical error in the decision of the surgeon not to occlude the other stump. But Mr Jones' report indicated that there may not have been a sufficient right cornual stump to clip. Dr Court's report is merely based on what he says he assumes to have been the position. Section 5(5) provides: "Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless medical error or medical mishap occurred at the time of the procedure." Unless the medical error or medical mishap occurred at the time of the procedure, then it cannot constitute a medical misadventure. The procedure performed on this appellant was the ligation performed by Mr Jones which the Medical Misadventure Advisory Committee considered did not involve any medical error. Dr Court has raised the issue of possible medical error on the assumption that there was sufficient 5 stump length to permit a clipping. However, that does not appear to be the finding of Mr Jones who performed that operation. As he had stated in his report "although no obvious sinus existed from the stump of the right tube this was religated". If that was the situation then the stump had previously been ligated with a view to occluding it. I do not consider that on that basis the evidence establishes that there was a medical error. Dr Court has only suggested that on the assumption he made a failure to take the step to occlude the cornual stump would amount to a medical error, but he does not extend that opinion to include the fact that a failure of the occlusion demonstrates medical error. Furthermore, Dr Court has given his opinion with the benefit of hindsight while Mr Jones was the operating surgeon who made the decision at the time in which he doubted his ability to clip the stump. I consider that I must therefore give more weight to Dr Jones' report than to the opinion now given some 10 years later by Dr Court. As the appellant's ectopic pregnancy was remedied by surgery in June 1993 that surgery did not amount to a failure of medical treatment. The appellant claims that the failure of medical treatment occurred when she underwent the procedures of tubal ligation and excision of the right fallopian tube which procedure took place before the introduction of the 1992 Act. However, because the adverse consequence did not arise until June 1993 the claim for cover must be considered under the 1992 Act. That being so, the issue of medical misadventure requires that the appellant must suffer a "personal injury" as defined in s.4. As I have already stated the Court has accepted in a number of cases that an ectopic pregnancy is not a "personal injury" within the meaning of those words in s.4. I therefore consider that the decision of the review officer was correct. The respondent had submitted an alternative argument that in addition s.5(5) excluded cover for medical misadventure because at the time the procedure was performed, being the excision of the right fallopian tube and the left tubal ligation there was no medical error in the manner in which that procedure was performed. I have already expressed my views on the evidence relating to that issue. The appeal is dismissed. DATED at WELLINGTON this 22" day of April 1999 vermadub A W Middleton District Court Judge dca25695. doc (rd )