Shepherd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 25 3 /97 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 BRENDA SHEPHERD DCA 152/97) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1997 APPEARANCES: Miss B Shepherd in person Mr J S McHerron for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has suffered a personal injury resulting from medical misadventure within the meaning of s.5 of the Act. 2 Background Facts The appellant at the material time was aged 73 years. In April 1995 the appellant's GP referred her to Dr P N Morreau at the Department of Surgery, Christchurch Hospital where a villous tumour of the rectum was identified. She underwent examination under anaesthesia for the endorectal resection of same. For this operation her legs needed to be in the lithotomy position - where the legs are in stirrups and the body is raised. Prior to this operation the appellant had written to the surgeon advising that she had a damaged pelvis and back and she requested the doctor to arrange to have her pelvis and back supported by pillows during the operation. The appellant underwent the operation without complication but was required to undergo a second surgical operation to check for any malignant potential of the lesion. This operation was carried out under general anaesthetic on the 12th of June 1995, again in the lithotomy position. It is the appellant's evidence that just prior to being wheeled into the theatre for the operation and being placed in the lithotomy position, a nurse had placed a large pillow under her neck, ostensibly for support. The appellant says that she told the nurse that it was too big and uncomfortable but nothing was done to remove it or change its position prior to the operation being carried out. It was her evidence that when she came out of the anaesthetic she felt mild neck discomfort and stiffness and that this gradually got worse over the following days. Prior to this operation she had been suffering some discomfort from her pelvis and had been receiving treatment for the same from a Mr Botting who practised the treatment of kinesiology and she seemed to place some faith in this person's 3 method of treatment although as I am informed it is not a recognised (for ACC purposes) form of treatment. Her evidence was that when she went to see Mr Botting with her sore neck he was in Australia and her first meeting with him for her complaint was not until the 18th of July 1995. She saw him a second time on the 2nd of August but his treatments were not having any helpful effect. The appellant then consulted her GP who recommended physiotherapy and it was at that time, at or about 10th of August 1995, that she lodged a claim with the Corporation for cover. On receipt of her claim the Corporation considered it a potential medical misadventure claim and referred it to the Medical Misadventure Unit. By letter dated 6th May 1996 the Corporation advised the appellant that as a consequence of the findings of the Medical Misadventure Advisory Committee, her claim had been declined. The relevant portion of the Medical Misadventure Committee's finding was as follows: "The committee is satisfied with the management of this case in that the health professionals have assured us that all care was taken. There was also a considerable delay of about two months between the operation and when the claimant presented to a doctor complaining of neck pain. With this in mind we consider a causal link has not been clearly established between the claimant's problems and the operative procedure." The appellant sought a review of that decision and in her decision dated 30th April 1997 the Review Officer also placed considerable weight on the fact that the appellant did not lodge her claim until August 1995 - almost two months after the 4 date of the surgery and further she did not seek any treatment for her neck pain that she was experiencing until some 35 days after the date of surgery. The Review Officer placed reliance also on the comments of the operating surgeon who in a letter states: "We were well aware that she had some problem with her lower back and on both occasions our anaesthetists have commented on the carefully positioning required with good support of the legs and pelvis on an air mattress during her procedures. The same care was taken on each occasion ... I was unaware that she had an problem with her cervical spine post-operatively after the second procedure and cannot give you any further information." The Review Officer has ruled that as there was some delay in the onset of symptoms following surgery and a considerable delay in the applicant seeking treatment, it is possible there was an intervening cause for the applicant's neck pain and having considered the matter she has reached the conclusion that there is insufficient evidence of any causal link between the pillow and the neck problems experienced subsequently by the applicant. "The delay in her first seeking treatment following the surgery raises too many doubts to satisfy me on the balance of possibilities that there is a causal link between the surgery events and her neck condition." The appellant appeared for herself before this Court in support of her appeal and her evidence was that she saw Mr Botting as soon as she could, that she had been experiencing the pain from the time of leaving the operating theatre and that it did gradually get worse. She stated to the Court that she told the nurse that the high pillow was most uncomfortable but that when she did so they were at the 5 operating theatre door and the nurse did not seem interested in doing anything about it. Her evidence was that she would have been in the "stirrup" position for approximately an hour during which time she said her neck was under pressure because of the excessive size of the pillow. It is noted that when she did see her GP in early August it was he who advised her to make a claim and his evidence in the form of letters to the Corporation support her claim for cover. I note this occasion was the appellant's first and only claim for cover under the Accident Compensation Act or its predecessors. This Court heard from Miss Shepherd herself and is therefore in exactly the same position as the Review Officer to assess the evidence relevant to this appeal. I consider that the Review Officer has placed too much emphasis on supposed delay as militating against a causal connection without giving due weight to the medical evidence from the appellant's GP and the physiotherapists who treated her. To all those whom she consulted she advised that she had developed neck pain as a result of surgery on the 12th of June 1995 and whilst she has had a previous problem with her lower back and pelvis, there is no suggestion that those medical problems were in any way related to or connected with the neck pain of which she complained. Nor indeed has she had any history of neck pain. In the final analysis based on all the evidence, both that given by the appellant to this Court and the medical evidence, I find on the balance of probabilities that the appellant did suffer a neck strain whilst being held in the lithotomy position for the period of time that she was so held during the course of the operation on 12 June 1995. 6 Having said that I find that in terms of s.5 of the Act that the personal injury sustained by the appellant cannot be said to be either medical error or medical mishap as those two terms are defined. I find that the injury was not an adverse consequence of the treatment given to the appellant but simply incidental to that treatment. However I find that the circumstances of the appellant's injury do amount to personal injury by accident in accordance with s.8(2)(a) rather than s.8(2)(c). The Review Officer's decision does not address the question of the ingredients of medical misadventure and both the Medical Misadventure Advisory Committee and the Review Officer have contented themselves with determining this claim on the facts viz a viz a causal connection rather than determining whether it was a claim for cover that ought to be properly considered in the category of medical misadventure or the more general claim for cover for personal injury by accident. For this reason I find that this Court cannot satisfactorily conclude the matter in this decision on appeal and therefore pursuant to Rule 16 of the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992 I remit this matter back to the Review Officer to consider the appellant's claim for cover under section 8(2)(a), being advised of and relying on the findings of fact which this Court has made in this appeal. Leave is reserved to the Review Officer to apply for further directions. DATED at WELLINGTON this 10 day of December 1997 MJ Beattie District Court Judge Shepherd.doc KD