Carruthers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 93 195 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BIRRELL VICTOR 19 94/0091. CARRUTHERS of Whangamata Appellant (Appeal No. DCA 33/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of August 1995 APPEARANCES A de Jonge as Advocate for appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has suffered medical misadventure following a left eye cataract extraction. The facts which give rise to the appeal are that the appellant underwent a left eye cataract extraction at Waikato Hospital on 11 November 1992. His surgeon, Mr Gross, took over from his registrar when difficulties were experienced. A posterior capsular tear resulted in a vitreous prolapse. The appellant suffered optic atrophy which causes blurring and vision loss. On 14 June 1994 the appellant lodged a claim for medical misadventure with the respondent, the claim stating: 2 "Medical misadventure - during left eye surgery to remove cataract, posterior capsule tear caused vitreous prolapse and dislodgement of lens." As required by s.5 of the Accident Rehabilitation and Compensation Insurance Act, the respondent referred the claim to its Medical Misadventure Advisory Committee. The Committee requested a report from Dr Gross, which he issued on 11 July 1994. He stated: " Thank you for your letter of 27.6.94. Please find enclosed my report based on a copy of the Waikato Public Hospital notes kindly provided by the Ophthalmology Department. I have not seen the patient since 1992 and he is currently under the care of Dr Clive Straker, MOSS, Waikato Public Hospital. Any current report would need to come from him as I do not believe the patient would wish to travel to Rotorua for my assessment. Please find enclosed a copy of my letter 1.12.92 on the above patient to Dr Lopert, the patient's GP (copy to patient). Please find enclosed a copy of Dr Clive Straker's letter of August 1993 which is clearly relevant to the cause of the poor visual outcome in the left eye. I believe that the patient was listed from Thames Hospital and I do not have a copy of those notes. None the less, my letter indicates that 21.11.91 he saw 6/18 right and 6/9 with no ocular pathology save for focal mild posterior cataracts causing glare and dazzle. The patient was placed on the waiting list and presented for surgery 29.9.92. At this time he saw 6/12 in each eye, improving to no more than 6/9 with pinhole in the left eye. Again, we found focal posterior cataracts in both eyes and I noted that although they were small, the patient was complaining of significant glare and dazzle. He felt that the left eye was worst and wished to undergo surgery. It is noteworthy, that at this stage, the fundus is recorded as totally normal and the nerve head cup/disc ratio is 0.3. As indicated in my letter, surgery was complicated. The initial manoeuvres were performed by an Ophthalmic Registrar under training and when difficulties were experienced, I took over and completed the surgery. Surgery was relatively uneventful until aspiration of the visco-elastic material. At this stage, there was felt to be an extension of an anterior capsular tear onto the posterior capsule. The lens was checked and found to be securely in situ although minimally decentred. The following day, the patient saw 6/9 without glasses and had an entirely secure quiet, pseudo phakic eye. At his return 23.11.92, his vision had fallen to 5/60 without glasses although it improved with pinhole to 5/6. He informed me that the vision had fallen for the first time, that day and I identified fluid vitreous in the anterior chamber. The lens remained entirely stable and well centred. I could find no retinal pathology to explain the fall in vision and felt that this reflected posterior movement of the intraocular lens inducing a refractive change. 3 This is not the first case of vitreous prolapse occurring some days after surgery in cases complicated by posterior capsular tear. It is very uncommon but presumably reflects a change in the pressure gradient within the eye, expressing vitreous forward. I reviewed him again 1.12.92 at which time he saw 6/24 right improving to 6/9 with pinhole. The pressure remained entirely normal as it had been at all times since surgery. The haptics of the intraocular lenses were securely in the bag, although the optic was displaced behind the nasal capsule. It remained beautifully centred and was felt to be an entirely stable situation. Refraction 9.2.93 showed - 1.25 - 0.50 x 130 left 6/5 vision at this time with the right -1.00 sphere no better than 6/9. New glasses were ordered and all medication was stopped. The next recorded assessment is 3.8.93 with Mr Clive Straker, by which time the right visual acuity had fallen somewhat (6/18 without and 6/12 with pinhole). The left eye was 6/12 with glasses and 6/9 with pinhole. Mr Straker's findings were essentially unchanged from the previous findings save for almost total cupping of the optic nerve head with pallor. I quote his report to the GP (enclosed) "I think the optic atrophy in the left eye is related to his carotid disease. To a certain extent, this would account for some of the blurring of vision in that eye, although the improvement of his visual acuity with a pinhole does indicate some residual refractive error" I have no further record available to me although I note from a discharge slip that he underwent right cataract extraction with intraocular lens implantation 4.3.94. Subsequent notes, I suspect reside within the Eye Department in specialty notes and are not contained in the bulk of his WPH notes. With regard to your Report Request 5 At the time that this patient's surgery was undertaken, phaco emulsification was a fairly new technique to New Zealand surgeons. There was (and still is) a significant incidence of anterior capsular tears (1 - 2%). At that time, extension of the tears on to the posterior capsule was more frequent (1%). A successful, well centred intraocular lens implantation in the circumstances is a very good outcome. The vitreous prolapse occurring late is an unusual sequelae of posterior capsular tears but is not unheard of. The refractive outcome (9.2.93: -1.25 -0.50 x 130) is an excellent outcome for surgery with a very good visual function. The fall in the six months until seen by Mr Straker is unexpected and unexplained, save for the presumptive diagnosis of vascular optic nerve head pathology. The surgical difficulties do not fall within the medical misadventure as they are too frequent. It may be well that the vitreous prolapse is rare enough to fall within that criteria. In that situation the excellent visual outcome with fairly minor glasses would appear to preclude acceptance as medical misadventure. The subsequent loss of function is difficult to associate with the outcome and problems of surgery. The patient has clearly had a more difficult and worrying post-operative recovery than optimum. I am sympathetic to his claim but am not in a position to judge whether or not it should be successful." The report refers to a letter from Dr Straker dated 3 August 1993 in which he stated: "I think the optic atrophy in the left eye is related to his carotid artery disease. To a certain extent this would account for some of the blurring of his vision in that eye, although the improvement of his visual acuity with a pinhole does indicate some residual refractive error." The Committee's findings and conclusions were: "Medical Error : Section 5(1) The posterior capsule tear and vitreous prolapse following a left cataract extraction 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 : Section 5(1) Rarity : Section 5(2) The adverse consequence of the treatment is not rare, as the probability that it would occur is more than 1% where that treatment is given. Severity : Section 5(4) The adverse consequence of the treatment is not severe, as hospitalisation as an inpatient was for less than 14 days; there was no significant disability lasting more than 28 days in total; the claimant would not qualify for an independence allowance under Section 54 of the Act. The Committee considered that the claimant's current visual problems relate to his optic atrophy. The optic atrophy is not causally connected to the left cataract extraction on 11 November 1992, notwithstanding the vitreous loss that occurred following that surgery. Conclusion : It is the consensus opinion of the Committee that Mr Carruthers does not have cover under Section 8(2)(c) of the Act, as medical misadventure resulting from medical error or medical mishap has not occurred." On 9 November 1994 the respondent advised the appellant through his advocate, Mrs de Jonge, that his claim was declined. The appellant then applied for a review 5 of that decision on the grounds that there had not been a proper informed consent and on the grounds that he did not consider that his carotid vascular problems were the result of his sight blurring. The matter was again referred to the Medical Misadventure Advisory Committee which again recommended that the claim should be declined and found: " 1 . Lack of informed consent. As stated above, the Chairperson commented that it is not unusual, within the public health system, for registrars to assist surgeons in the performance of an operation. She therefore did not think that the claimant's argument regarding lack of informed consent was a valid one. It is further noted that although the registrar started the operation, Dr Gross then took over and completed the surgery. 2. The cause of Mr Carruther's current visual problems. The Committee was in agreement with Dr Straker's opinion that the claimant's visual blurring is attributable to his carotid artery disease, rather than to the left cataract extraction. This was their view notwithstanding the fact that Mr Carruther's cataract surgery had been complicated by a posterior capsular tear, and vitreous loss. The Committee was guided in this opinion by the ophtalmologist present at the meeting.' A further report was received from Mr Straker, a Specialist Ophthalmologist with Health Waikato who stated on 7 December 1994: "Following our telephone conversation concerning Mr Carruther's medical misadventure claim, I wish to confirm that I saw Mr Carruthers in the eye clinic on 6 December 1994 and he showed me the review of his claim which was compiled by Trish Jennings. Mr Carruthers had a query about the reference to his left eye and the presence of optic atrophy related to carotid artery disease. On reviewing Mr Carruthers' eye records and my letter to Trish Jennings dated 30 June 1994, I note that no reference to optic atrophy or carotid artery disease was made. In view of this apparent discrepancy between the review report and my letter of 30 June, I re-referenced Mr Carruthers' other hospital records, as he has more than one file at Waikato Hospital. I was able to find several pages of eye clinic records which had not been transferred to the definitive eye file and confirm that I saw Mr Carruthers on 29 July 1993 and found that he had 6/12 vision in the left eye, improving to 6/9 with a pinhole, and a pale optic disc indicative of optic atrophy on that side. It was my impression from that examination that the optic atrophy was most likely related to his carotid artery disease. In spite of these findings, Mr Carruthers has maintained very good central visual acuity in the left eye and I can confirm that, as indicated in my letter of 30 June 6 1994, this has been maintained to the present time. His visual acuity in the left eye with spectacles on 6 December was 6/6. I trust that this additional information helps to confirm the findings concerning Mr Carruthers' left eye during the period that I have been associated with his care. Again, on reviewing his records prior to my involvement, I note that before the 29 July 1993 he had been seen in February 1993 and at that time the good central visual acuity was again confirmed and with appropriate spectacle correction he achieved 6/5 vision. I should be grateful if I could receive copies of any review reports or correspondence related to Mr Carruthers' case in the future." Mrs de Jonge submitted to the Review Officer that the appellant disagreed with Dr Straker's report and submitted that the Committee had been misinformed. In support of those submissions she provided a report from Mr G L Allen, a Thoracic & Vascular Surgeon, which is dated 10 January 1995. That report states: " This is to certify that I have looked at the records of this patient at the Waikato Public Hospital and he has had extensive vascular surgery done by me on his abdominal aorta and also on the peripheral arteries of his legs. In addition he has had the following operations: 1. Right internal carotid endarterectomy - 18.1.90 and after this the patient had a bypass graft to his coronary arteries. 2. He had a left internal carotid endarterectomy on 16.2.93. Regarding his left eye, which is the one under consideration regarding his present problem, it was noted that this vessel was severely narrowed but the patient had no symptoms related to his eyes from this lesion. In these patients clots go off to the retinal artery from the lesion but there was no evidence of this before the operation and in fact he was asymptomatic. He underwent a left internal carotid endarterectomy with no post operative problems and was discharged in a good condition. Regarding the right internal carotid artery, he also had no visual symptoms related to this problem. His only symptoms were weakness of the left upper limb and this operation was carried out in 1990. I can emphatically state that this patient's optic atrophy was in no way related to his carotid surgery and neither had he developed this problem before his carotid operation. On perusing his notes I see that he had extensive complications resulting from his cataract surgery including vitreous prolapse when his vision deteriorated and I 7 would feel almost certain that his optic atrophy and his eye problems are related to his cataract complications." The Review Officer reviewed the medical history and the requirements of s.5 which set out the matters to be considered in claims for medical misadventure. The Review Officer noted Mr Allen's opinion that the optic atrophy was not related to the carotid surgery and that he considered the atrophy and eye problems were related to cataract complications and that the atrophy developed after the carotid operation. The Review Officer felt obliged to be guided by the specialist ophthalmic opinion and declined the application. Mrs de Jonge made submissions to me similar to those she had made to the Review Officer. Mr Cleary submitted that I should also be guided by the specialist reports and the conclusion of the Medical Misadventure Advisory Committee. He submitted that it was clear from the reports of Dr Gross and Dr Straker that the optic atrophy was related to his carotid artery disease and not to anything which occurred in the course of the cataract operation. Mr Cleary submitted that there was no evidence of medical error on the part of any health professional and this was supported by the findings of the Committee. He submitted that the injury sustained by the appellant does not amount to medical mishap as it is defined in s.5 of the Act and that the adverse consequence of a posterior capsule tear is not rare as was stated by Dr Gross. In addition, the posterior capsule tear or atrophy did not satisfy the test of severity because the appellant was hospitalised for less than 14 days and there was no significant disability lasting more than 28 days in total. Mr Cleary further submitted that the finding of the Committee was that the optic atrophy which developed was not caused by the vitreous loss or any other complication following the left cataract extraction operation, but was caused by the appellant's carotid artery disease. As to the issue of informed consent, the appellant had failed to establish negligence on the part of a registered health professional and the only allegation made was the fact that Dr Gross had not commenced the operation, but he in fact had taken over prior to the alleged misadventure taking place. Mr Cleary submitted that the appellant had agreed to Dr Gross performing the cataract removal. I have considered the medical reports and the findings of the Committee and I agree with Mr Cleary's submission that there has been no proof that a medical error occurred, nor has there been a medical mishap which meets the tests of rarity or severity as set out in s.5. The onus is on the appellant to satisfy me on the balance of probabilities that the decision of the Review Officer was wrong. The appellant has produced no new evidence which in any way contradicts the findings of the Committee which I consider were appropriate findings on the basis of the evidence produced. 8 The appeal is dismissed. DATED at WELLINGTON this 22nd day of August 1995 bunddubin A W Middleton District Court Judge dc33-95.doc(mh)