Haverkort v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 333/2003 UNDER The Accident Rehabilitation & Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 97 of the Act BETWEEN BROOKE JADE HAVERKORT of Sandringham Appellant (Appeal No. AI 325/02) AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARING at AUCKLAND on 8 December 2003 APPEARANCES/COUNSEL K. Reid for appellant F. Becroft for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this appeal is whether the Accident Compensation Corporation decision dated 13 August 1997 declining the appellant’s claim for medical misadventure on the basis that there was no causal link between the treatment given to the appellant’s mother during her pregnancy and delivery of the birth of the appellant, and the appellant’s subsequent condition of cerebral palsy was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/333- 2003.doc AE Narrative of Facts [2] In April 1996, the appellant’s parents made a claim for cover for medical misadventure involving the birth of the appellant with cerebral palsy. The allegation was that the treatment given during the appellant’s mother’s pregnancy and the subsequent delivery resulted in the appellant’s condition of cerebral palsy. [3] On 22 July 1996, the claim was received and forwarded to the Medical Misadventure Unit. The unit then set about investigating the claim and obtaining medical evidence from the various practitioners involved. [4] A file summary by the Corporation describes events leading up to the appellant’s claim as follows: “Ms Murray consulted her doctor during her pregnancy. The first ultrasound scan at 15 weeks pregnancy showed no abnormalities and gave an estimated date of delivery of 1 March 1994. A second ultrasound scan was carried out on 20 December 1993. This showed normal foetal movements and normal liquor. The foetal size was normal for 30 weeks. Ms Murray was 11 days overdue when she had a spontaneous rupture of her membranes and appropriate CTG monitoring was performed. Ms Murray presented to Rotorua Hospital at 0550 hours. She became fully dilated at 0800 hours on the morning of 12 March 1994. Ms Murray commenced pushing. Dr Menjamin arrived at 0805 the head dispended well but then no further progress occurred due to perineum tightness. There was a degree of delay on the perineum lasting about 4 contractions and episiotomy was indicated and this was performed by Ms Price. Following the lapisiotomy the baby was rapidly expelled at about 0820 hours. The cord was around the neck but not cut as the shoulders were born before it could be unwrapped. The cord was then cut and Brooke was taken to the resuscitation trolley by Dr Menjamin. Dr Malcolm, Pediatrician was called. Brooke was resuscitated by a bag and mask and was then incubated. Apgar scores were 3 at 1 minute and 2 at 5 minutes. Dr Malcolm and a Senior House Officer took over the resuscitation. At 9 months of age Brooke was clearly neurologically abnormal and Dr Malcolm made a diagnosis of cerebral palsy.” [5] A helpful chronology at the time of birth has been set out between paragraphs 2.1 and 2.2 of the appellant’s submissions, and these are set out as follows: “2.1 Brooke’s mother, Linda Murray, came into Rotorua Hospital on 12 March 1994 for delivery and birth of Brooke. Ms Murray was seen the day before and sent home but early on the morning of 12 March 1994 contractions began and she was asked to come into the hospital. There is some divergence of opinion as to the estimated date of delivery of the child but 333-2003 2 despite that discrepancy it is quite clear from the evidence that Ms Murray was beyond term. 2.2 The timing of that day’s events is as follows: 0500hrs Ms Murray phoned. Contractions since 0330hrs. Short sharp contractions every 7 minutes, now every 4 minutes. Asked to come into hospital immediately. 0550hrs Admission. Coping well with contractions which were strong. 0700hrs Examination. Labour appeared to be progressing quickly. 0714hrs GP was phoned to let him know that mother was in established labour. Findings communicated indicated progressing well. Baby’s fetal heart rate consistent. 0800hrs Commenced pushing. GP arrived. Head descended well. Soon on view. Fetal heart constant. After few pushes no progress. Perineum tightening adhered to baby’s head. Decision made to do episiotomy. Baby born immediately. Cord wrapped round the neck. Not cut first as shoulders were born before cord could be unwrapped. Child pale with no obvious respiratory effort. Cord cut, quickly taken to resuscitation trolley. Emergency call to paediatrician – Dr Malcolm.” The Respondent’s Submissions [6] The respondent submitted that the issues here revolved around a consideration of the causation arising from: [i] The asphyxia and the ensuing cerebral palsy. [ii] The treatment alleged and the ensuing asphyxia, and [7] In particular, the respondent has the need to show, on a probability basis, a causative link between the alleged treatment and the asphyxia leading to the condition of cerebral palsy. [8] The respondent very properly did not contest if a causal link was established in this case, there was an issue on the requirements for medical mishap, namely, “rarity” and “severity”. [9] The crux of the respondent’s submission was that the appellant had been born with the cord around her neck, and that the subsequent treatment consequent upon her delivery was not causative of the asphyxia, or probably caused cerebral palsy. In 333-2003 3 particular, the respondent relied upon the decision of Penney v ACC (AI 301/00), Judge Beattie dated 6 March 2001. The Medical Reports [10] An analysis of the medical reports is critical to this decision. [11] On 6 April 1994, Dr Bryce Curran for Dr Malcolm reported. The history of the delivery was set out. Labour was of spontaneous onset with rupture of membranes 28 hours prior to delivery. Delivery had been complicated by a ten minute hold up at the perineum complicated by cord around the neck. Resuscitation included cardiac massage from six to twelve minutes, intubation at two minutes of age with subsequent intermittent positive pressure ventilation. [12] Problems were noted as severe birth asphyxia with grade 2 hypoxic ischaemic encephalopathy. A subsequent CT scan showed some slight reduction in cerebral attenuation posteriorly in the right parietal region. This change was of dubious significance but could be compatible with early hypoxic damage. No other abnormality, however, was seen on CT scan. [13] Dr McMenamin, the general practitioner, on the 18th September 1996 reported that it had been decided that both he and the midwife would be present at the delivery. At 4 a.m. on 11 March 1994 the mother experienced spontaneous rupture of her membranes, without labour. She had reached 41 weeks and two days of gestation, her due date by early scan being 2 March 1994. [14] At about 4 a.m. on 12 March 1994 the mother went into spontaneous labour. Her midwife attended and the following details are from the record: at 5.50 a.m. the labour was uncomfortable and the foetal heart recorded at 122. The sanitary pad of the mother was dry. At 6:30 a.m. a CTG was recorded and no trace of abnormality was found. At 7 a.m. a vaginal examination was made to assess progress and she was found to be four centimetres dilated and at about 7.15 a.m. the doctor was notified that the mother was in labour. At 7:45 a.m. the contractions were stronger and the mother had an involuntary urge to push and had only a small rim of cervix. At 8 a.m. there were external signs of dilation and the mother was pushing. The midwife was present. There was no suggestion of foetal distress at that time. 333-2003 4 [15] The doctor said that he understood the mother had previously indicated a desire to avoid an episiotomy if possible. There was steady progress as evidenced by the external visible descent of the head and the dilation of the introitus. This process of perineal stretching and descent continued satisfactorily until reaching a stage where no further progress was being achieved because of perineal tightness. At this stage there was a degree of delay on the perineum. This delay lasted about four contraction pushes. Once it was clear that no further progress was going to be made the doctor and the midwife agreed that an episiotomy should be performed. [16] The baby then was rapidly expelled by maternal effort without further delay about 8:20 a.m. The umbilical cord was noted to be tightly around the neck, but the baby delivered rapidly and rotated while delivering, and the cord was able to be unwrapped from the neck without it being necessary to divide it. [17] An immediate examination by the doctor noted the baby to be cyanosed, braycardic with a heart rate of approximately 60 per minute, hypotonic and with no respiratory effort. There were no resuscitating facilities in the delivery room so it was necessary to take the baby to another delivery room and initiate resuscitation with the appropriate equipment along with another colleague. Initial resuscitation involved possible pressure ventilation with oxygen via bag and mask, but as there was no air entry, the baby was intubated. [18] Dr Malcolm, Paediatrician, reported on 7 June 1994. This report was mainly descriptive, and was carried out when the appellant was aged ten weeks. [19] On 21 May 1996, Dr Malcom reported that he felt the cerebral palsy from which the appellant suffered, was related to birth asphyxia, although he acknowledged that some children with cerebral palsy arise from deliveries where there is no such identified asphyxial elements. The measure of severity was the need for cardiopulmonary resuscitation, endotracheal Adrenaline and first pH of 6.87 as a measure of severe asphyxia. [20] In a report dated 30 September 1996, Dr Malcolm reviewed his earlier reports. He said that while he could comment on significant events around the time of her birth, especially from his own involvement from his notes from 6 minutes of age, he did give advice at the time of birth or shortly thereafter commenting in terms of her having a Grade 1 hypoxic encephalopathy and also knowing that the severity of her asphyxia was of concern. 333-2003 5 [21] Dr Rosemary Marks, Paediatrician, reported on 24 March 1997. She said that the appellant was born following her mother’s second pregnancy. The pregnancy was uncomplicated. She understood that the estimated time of the delivery was sometime mid-February. [22] The descriptive history was a spontaneous rupture of membranes in the early morning of 11 March 1994. The mother did not immediately go into spontaneous labour. She consulted her general practitioner, who reassured her no intervention was required. However, the midwife requested a review at the hospital and fetal heart monitoring was carried out. At that point, the mother was aware of some concerns about the fetal heart rate, but the fetal heart rate was then thought to have stabilised and the mother was sent home. [23] Review of the notes reveals that the concern was in relation to lack of beat and beat variability, a significant indicator that the fetus is compromised. Several hours later the mother had spontaneous onsent of labour and was admitted to Rotorua Hospital. There was one episode of monitoring during labour. [24] There was a hold up once the head had crowned, and the head was crowned for ten minutes prior to delivery. The notes describe an elective episiotomy being carried out because of previous scar. [25] The appellant was flat at birth and required resuscitation. The Apgar scores were given as 3 at one minute, 2 at five minutes, 4 at eight minutes and 6 at ten minutes. [26] The appellant was admitted to the Special Care Baby Unit at Rotorua and required ventilation for two days. Her early neonatal course was complicated by seizures on day two and three. [27] Dr Marks said that the appellant had had a CT scan carried out in the neonatal period in Rotorua. This was reported as showing some reduction in attenuation in the right parietal region, and the change was interpreted as being of dubious significance. A further CT scan was carried out at Auckland Hospital on 15 October 1996. A review of these scans has now been interpreted as being normal. The presence of normal findings on CT scanning however did not exclude the appellant’s disability from being secondary to perinatal asphyxia. 333-2003 6 [28] The length of pregnancy was estimated by the dates given by the mother was 44 weeks. Scan dates were interpreted as showing the pregnancy to have completed 41½ weeks. The appellant’s weight and birth length were on the mean for 41½ completed weeks gestation. There did not appear to be any evidence for the recent weight loss. The head circumference was 33cms at birth less than 10th centile, but there is a comment about a marked degree of moulding of the skull. There was a well recognised association between prolonged pregnancy, i.e. pregnancy of duration longer than 42 weeks, and perinatal morbidity. [29] Dr Linda Batcheler reported on 15 April 1997. Dr Batcheler in a report dated 15 April 1997 noted that spontaneous labour was rapid at the first and early second stage. There was limited intrapartum electronic foetal monitoring performed, and only auscultation during second stage labour. Because the foetus could be regarded as high risk, this was a situation, in which continuous intrapartum electronic foetal monitoring should have been done. [30] Dr Batcheler noted that it was agreed that the delivery of the head was held up by a tight perineum for four contractions. The father had estimated the delay has up to 15 minutes, while the midwife and the general practitioner had estimated that time as less. There is a dispute whether the foetal heart was heard between the contractions. When a compromised foetus is delayed on the perineum there can be rapid fall in oxygenation and rapid increase in acideamia. [31] The need to transfer the baby to another theatre delayed initial resuscitating by a short time. The success of the initial resuscitation was uncertain as it was six minutes before the baby was intubated successfully. In this case it may have been that the foetus was compromised, as a result of secondary post maturity and reduced liquor volume. This baby with chronic high hypoxia may well have been unable to compensate for the stress inparted by labour, and particularly at the late second stage when it was held up on the perineum. [32] Dr Batcheler was of the view that the pregnancy was at higher risk because of: [i] Post maturity [ii] Recent weight loss 333-2003 7 [iii] Probable reduced liquor volume [iv] Ruptured membranes [v] Non reassuring CTG [33] She felt it would have been appropriate to obtain an opinion from an on call obstetrician regarding further management. It would also have been appropriate to have had induced labour at the time. [34] She said under the heading of Late Second Stage Delay: “Kate Price and Dr McMenamin agree that delivery of the head was held up by a tight perineum for 4 contractions. Mr Haverkort estimates the delay as 15 minutes, the midwife and GP estimate it as less. There is a dispute whether the fetal heart was heard between contractions. When a compromised fetus is delayed on the perineum there can be rapid fall in oxygenation and rapid increase in acideamia.” [35] Resuscitation Delay: “The need to transfer baby Haverkort from prep. room to theatre delayed initial resuscitation by a short while. The success of initial resuscitation is uncertain as it was 6 minutes before the baby was intubated successfully.” [36] Then under the heading Summary: “As documented in the Concensus Article on Cerebral Palsy enclosed in Kate Price’s report, it can be very difficult teasing out determinants of cerebral palsy. A compromised fetus however, as this baby may well have been (secondary postmaturity, and reduced liquor volume) with chronic hypoxia may well have been unable to compensate for the stress inparted by labour, and particularly late 2nd stage when it was held up on the perineum, and hence been born in such poor condition.” The Report of Dr Jamison - Neurologist [37] I set out the relevant extracts appearing in the report of Dr Jamison dated 13 March 2000: “On brief examination today she is a vocal child, alert and interested in her surroundings, and appears to have good understanding of spoken language. At home and at school she is able to read, but her articulation is impaired so as that even family members find it difficult to understand what she is saying unless they know the text. She has marked athetoid movements of her arms, particularly when she does anything and when stood upright has a tendency to scissor her legs with 333-2003 8 increased adductor tone. When given a raisin to try and grasp she does it with a very clumsy whole hand grasp tending to drop the raisin, and then has considerable problems because of her athetosis actually getting it near let alone into her mouth with either hand. In other words she remains very dependant on adult help for most of her cares even though she presents as a normally intelligent child. She is seriously physically disabled with her athetoid cerebral palsy which involves the whole of her body, and is going to be a life long condition. Her head circumference of 51cms. on the 50th centile indicating continuing normal brain growth. In considering whether or not her cerebral palsy state is due to medical misadventure, there does not appear to have been any medical error in her management from her delivery onwards in the neonatal period. I am not competent to make any comment about her obstetric management. In regard to medical mishap there is clear evidence of an acute intrapartum potentially impairing hypoxic event having occurred in that she had a metabolic acidosis with a pH of less than 7 and a base deficit of greater than 16mmol, and evidence of moderate to severe encephalopathy as indicated by her seizure activity on days two and three, and the need for nasogastric feeding. There is no CT evidence of acute cerebral abnormality, but this is not always found when there has been significant intrapartum asphyxia. She has a quadriplegic (spastic) choreoathetoid form of cerebral palsy which is consistent with there having been an intrapartum hypoxic event. Her Apgar scores not exceeding 6 for longer than 5 minutes is also consistent with this. In discussing dyskenetic cerebral palsy Professor Louis Rosenbloom of Liverpool (Archives of Disease in Childhood 1995, 72:350-354) writes "In current paediatric practice, dyskinetic cerebral palsy occurs most often in term infants and has a close association with obvious perinatal adversities. Most frequently this is unforeseen acute circulatory failure with severe but short lived birth asphyxia, although often only a mild or moderate hypoxic ischaemic encephalopathy." There are no exclusion criteria to suggest that there may have been a preceding cause of cerebral palsy other than the acute intrapartum hypoxia in Brooke's case in that her CT brain scan has demonstrated normal brain morphology, and no major or multiple congenital dysmorphic or metabolic abnormalities have been demonstrated. The Rotorua notes indicate there was no central nervous system or systemic infection, and the initial CT and a CT brain scan done in October 1996 show no longstanding prior neurologic abnormalities. Current examination reveals no evidence of anterior horn cell, neuropathy or myopathy that would have compromised breathing. There was no intrauterine growth restriction, and it would seem from the measurements in the first two weeks of life that there was no abnormality of head circumference reflecting brain growth. There has never been any evidence to suggest a coagulopathy in the perinatal period or subsequently. I am of the opinion that Brooke's (spastic) athetoid cerebral palsy state is due to an intrapartum asphyxial event. The delivery of Brooke was attended by registered health professionals (a midwife and a general practitioner), and Brooke has suffered an adverse consequence of this event which has resulted in significant disability which 333-2003 9 is permanent and so qualifies under ACC criteria as severe. Cerebral palsy in this circumstance occurs in less than 1% of situations and so the ACC criteria for rarity for medical mishap are fulfilled. In my opinion the ACC criteria for medical mishap as a result of an adverse consequence of treatment if the likelihood of the adverse consequence is rare (less than 1%) and severe have been fulfilled, so I am surprised that their claim was rejected as in most situations such as this a cause other than the events associated with delivery may not be identified. From experience with other patients I am aware that there are other children with cerebral palsy in which there has been evidence of intrapartum asphyxia, but no definite cause identified who have had their claim for medical mishap accepted by the Accident Compensation Rehabilitation Corporation. No doubt ACC will have in their records details of some of these precedents.” The Report of Dr Malcolm Dated 9 August 2000 [38] I similarly set out the relevant extracts of the report given by Dr Malcolm on 9 August 2000: “As the paediatrician involved with Brooke and her initial resuscitation and subsequent diagnosis of cerebral palsy I have been asked to make some comments. My initial notes written at 12.15 on 12.3.94 document my comment that I was called to baby and saw at 6 minutes of age, Brooke was endotracheal intubated to facilitate ventilation. I commented in my handwriting that the prognosis would be guided by (the evolution of her) hypoxic ischaemic encephalopathy, and that my senior house office Dr. Bryce Curran had been in attendance from delivery suite. I have now read Dr. David Jamison's report of the 13th of March 2000. It is important to note Dr. Jamison's comment at the bottom of page 3, last paragraph that a normal CT scan is often present despite significant intrapartum asphyxia and that her spastic quadriplegic choreo athetoid form of cerebral palsy is consistent with there having been an intrapartum hypoxic event. Subsequent paragraphs on page 4 of his report follows quoting that "a severe but short lived birth asphyxia may be seen in infants who subsequently develop cerebal palsy". Consideration of medical mishap is addressed by Dr. Jamison's report documenting significant disability, permanent, severe and occurring in less than 1 % of situations of this sort. The summary from Linda Murray Brooke's mother's obstetrician, comments on the determinants of cerebral palsy of post maturity, reduced liquor volume and possible limited response to compensate for intrapartum stress. I interpret the severe respiritory and metabolic acidosis with quick resolution as implying it having been of short duration and she had a relatively quick response to vigorous resuscitation. Sue Davis's report of 12 May 1997 page 2 has I think a typographical error where she mentions some involvement of her vulva ie perineum but from context I believe means bulbar muscles, which I think would be the correct meaning rather than the word vulva given her associated discussion of swallowing (controlled by bulbar / brainstem nerves). 333-2003 10 I have noted both Dr. Davis and Dr. Jamison paediatric neurologists' opinion Dr Davis clearly states "I would conclude that the origin of Brooke's neurological problems began prior to the onset of labour in the preceding weeks". I am not sure whether the following sentence reads as Dr. Davis would have intended. As I have noted on page 2 there is already one definite typographical error and I would raise the question as to whether Dr. Davis would wish to look at that sentence as to whether it reads as she intended. The sentence starts "it would be difficult to attribute a proportion of her disability to the suspected prenatal insult." In the preceding sentence she has clearly stated that a proportion of the problem begins at that point. She then adds the phrase "and to additional compromise that occurred at the time of her delivery". If the first sentence of the last paragraph is to be consistent with the first phrase beginning of the second sentence of that last paragraph the sentence might read "it would be difficult however not to attribute a proportion of her disability to a suspected prenatal insult and to the additional compromise that occurred at the time of delivery, ie a prenatal and intrapartum element". That would be consistent with the obstetric report and Dr. Jamison's paediatric neurology report. I believe it is most important to clarify given the definite error II have identified vulva for bulbar and the inconsistency which appears to me as detailed above . Given that I am one of the clinicians involved in the management around the time of birth, independent practitioners are the best people to review the conduct of our resuscitation. However it can be seen from Dr. Jamison's report that a case for considering medical mishap has been clearly made. While Dr. Davis has now gone to the United States Dr. Jamison her colleague will very likely have a forwarding address and if my comments appeared appropriate you might ask for her comments reconciling the first and second sentence. You will have copies of my senior house officer's letter as a contemporaneous recording of resuscitation describing Brooke as being hypotonic with bradycardia and no respiratory effort at birth, was given bag and mask "ambubagged" ventilation from 20 seconds of age, was intubated at 2 minutes of age, was given external cardiac compression from 3 minutes of age. The fact that she had significant apnoea at birth requiring formal ventilation, that there was a bradycardia requiring Adrenaline and external cardiac compression supported the existence of her asphyxial state, with resolution in response to intubation, ventilation, intravenous alkali. Her first gas had a carbon dioxide of 82 consistent with hypoventilation/ ventilation perfusion mismatch or shunting and within 45 minutes C02 returned to 19. The first gas was taken from venous umbilical line and she received 5mls of sodium bicarbonate at 9. There was no problem with her transfer to special care baby unit in as much as she was already intubated and ventilated in transit, ET tube increased from 2.5 - 3 in special care baby unit, umbilical venous and arterial catheters put in place. Caution regarding neurological prognosis was evident in her notes with seizures noted, temperature instability probably reflecting hypothalamic impact, delayed feeding again a measure of neurological impact, evident secretions aropharynx reflecting difficulty swallowing initially, need for speech and language therapist consultation re feeding. A visiting neurodevelopmental therapist referral was made based on the history, there also being a relatively increased extensor tone when I examined on 5.4.94. While my letter was gently phrased 5 January 1995 it was quite clear that she had developed cerebral palsy with elements of spastic quadriplegia by 9 months of age phrased as such after discussion with parents , my custom being to write a letter both to family doctor and parents. I trust these comments are helpful. While the initiation of events and the vulnerability that may have lead to Brooke's perinatal asphyxia is thought to have had prenatal origin there is clearly an episode of severe acidosis at birth which is rare to be of that severity, can be associated with neurological impairment. While not a paediatric neurologist, but a general 333-2003 11 paediatrician, I would suggest re reading Dr. Jamison's report and Dr. Davis's comments too, consider my comments on ambiguity and how a typographical / dictation error may may have arisen and the wording which may resolve it. Perhaps giving Dr. Davis herself or Dr. Jamison an opportunity to comment on his interpretation of the part of Dr. Davis's report I have commented on. I suggest ACC reconsiders mishap as Dr Jamison suggests.” The Report of Dr Davis [39] For completeness, I briefly refer to the report of Dr Sue Davis dated 12 May 1997. [40] Dr Davis said: “In my assessment of the cause of Brooke’s neurological problems, taking into account her condition at birth, the early CT head scan and laboratory studies in the neonatal period, I would conclude that the origin of Brooke’s neurologic problems began prior to the onset of labour in the preceding weeks. It would be difficult however to attribute a proportion of her disability to the suspected prenatal insult and to additional compromise that occurred at the time of her delivery. There is little information available to provide any more precise estimate of the causality of her disability, but I would be happy to discuss this with you further if I can be of assistance.” [41] It was this passage that was referred to by Dr Malcolm as presenting ambiguity. Dr Davis’ opinion was not of the same detail as that of her colleague Dr Jamison. The Review Decision [42] The review decision was dated 7 June 2002, and the hearings took place on 31 July 2000 and 17 May 2002. The review decision is most thorough, and addresses the issues in this case with competence and care. [43] I do not intend to traverse the review decision at great length, because at the end of the day the issue revolves around whether or not the medical evidence and the facts surrounding the delivery, showed on a probability basis that the present adverse condition of the appellant was a consequence of treatment by or at the direction of a registered health professional. 333-2003 12 [44] It is important, however, that I briefly note the evidence given at the review hearing by Ms Murray, the mother, and Mr Haverkort. Ms Murray confirmed that she was a registered nurse, and had also acted as a carer in IHC homes. She said that she held Brooke for the first time on 12 March 1994, and the baby felt soft and nice. Ms Murray discussed an apparent dispute between the midwife and the General Practitioner regarding the trace and other matters. She said she was concerned over the lack of cohesion between the General Practitioner and the midwife. Ms Murray said that she expected to be monitored more closely. [45] Mr Haverkort gave evidence and said that Ms Murray experienced a normal pregnancy so the birth problems came as a surprise. He said that the events leading up to the birth were minimised. Documents seem to portray the birth as normal, however, there was concern over the fact that the baby was caught on the perineum for a long period of time. When the baby was born she appeared dead. The cord was dark and unusual looking. [46] Dr McMenamin rushed the baby out of the room. Mr Haverkort said that he was stunned at these events and went looking for the baby. He then found three doctors working on the baby, one had a bag, the other was massaging and the third administered adrenaline. [47] The Review Officer said that the dispute had been before three Medical Misadventure Committees, a number of specialist assessments and two review hearings. The parties accepted that the baby had cerebral palsy with profound consequences, and that the issue in front of him was causation. [48] The evidence confirmed the cerebral palsy. Dr Jamison stated the condition satisfied the rarity criterion, and this was a significant disability lasting more than 28 days. There was, accordingly, no issue that the appellant’s personal injury was both rare and severe. The issue was whether there was an entitlement to cover as the injury suffered by the appellant was caused by the treatment of a registered health professional. [49] Again, there was no issue as to medical error, and the issue related to whether in the circumstances of this case there was a medical mishap. 333-2003 13 [50] The reviewer said that medical mishap was defined as an adverse consequence of treatment by, or at the direction of a registered health professional, properly given. [51] The reviewer, in particular, referred to and analysed the decision of Beattie DCJ in Penney v ACC (43/2001). The reviewer thought given the guidance from Penney the causal link had to be identified between an aspect of the treatment and the intrapartrum hypoxia. The reviewer then carefully looked at the medical evidence presented to him. [52] After an analysis of this evidence, he reached a conclusion that the review application should be dismissed. The reviewer found there was no question that the appellant had a significant disability with the attendant demands placed upon her parents. In essence, the finding was that while a temporal or incidental relationship had been established, a causative relationship had not been made out on the balance of probabilities. The Submissions of the Respondent [53] The respondent submits that “medical mishap” is defined as an adverse consequence of treatment by, or at the direction, of a registered health professional, properly given. The treatment in this case involved the labour and the delivery of the appellant. [54] The submission of the respondent was that the medical evidence in the case did not indicate a causal connection between the medical treatment given to the appellant and her mother, which resulted in the subsequent intrapartum asphyxia, and the subsequent development of the cerebral palsy. [55] It was submitted that there was insufficient medical evidence in support of a causal connection between the medical treatment received by the appellant’s mother and the appellant’s subsequent development of cerebral palsy. The fact that the appellant suffered asphyxia at birth, and that hypoxia may have caused her cerebral palsy did not mean that any act or omission by a registered health professional during that time caused that condition. [56] Dr Davis, Paediatric Neurologist, considered that the origin of the appellant’s neurological problem occurred prior to the onset of labour. 333-2003 14 [57] Dr Davis went on to note that there was difficulty involved in attributing the cause of the disability to the suspected perinatal assault and the additional compromise which occurred at the time of the delivery. [58] Dr Marks provided comment on 24 March 1997, and indicated some concern over the lack of beat variability in a scan taken prior to the appellant’s birth. She indicated that this lack of beat could be an indicator of foetal compromise. Dr Marks went on however, to indicate that a subsequent CT scan was normal. Dr Marks did not make any further comments in relation to medical mishap. [59] Dr Batcheler prepared a report at the request of the appellant’s parents, and specifically commented on low liquor volume in the initial CT scan indicating a lack of beat to beat variability. [60] Dr Batcheler also considered that the delay on the perineum could have been significant on the appellant’s subsequent development of cerebral palsy. [61] The respondent submitted that there was some conjecture as to the period for which the appellant’s head remained on the perineum. The treating midwife and General Practitioner both proximated the time over three to four contractions, as being ten to fifteen minutes, the appellant’s mother thought the time to be around fifteen minutes. The Medical Misadventure Advisory Committee considered that a time of around ten minutes was not an inappropriate time for a baby’s head to remain on the perineum. [62] In the case of Penney it was submitted that expert evidence at that time thought that around ten minutes was not an inappropriate time for a baby’s head to remain on the perineum. [63] The respondent submitted that Dr Jamison’s opinion showed there was no evidence of medical error in the clinical management of the case. However, he gave evidence of medical mishap comprising of an acute intrapartum potentially impairing hypoxic event. [64] The submission of the respondent was that while Dr Jamison provided evidence that intrapartum asphyxia caused the appellant’s condition, he did not provide any evidence of a causative link between the intrapartum asphyxia and any act or omission by treating professionals involved. 333-2003 15 [65] The respondent submitted that in the case of Penney Judge Beattie relied on the evidence from Dr Jamison which appeared to be similar to the opinion he has provided in this case, and found there to be no evidence of the necessary causative link between the treatment administered and the subsequent asphyxia. [66] The respondent heavily relied upon an analysis of Penney and the present case as precluding any causative link between the ensuing disability and the medical treatment received. Decision [67] This case has to be decided pursuant to s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992 and in particular, a consideration of the concept of “medical mishap”. [68] “Medical mishap” means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given if: [a] The likelihood of the adverse consequence of the treatment occurring is rare; and [b] The adverse consequence of the treatment is severe. [69] I agree with Judge Beattie, that the issue the Court is required to determine is whether there is an entitlement to cover where the injuries suffered by the appellant were caused by the treatment of a registered health professional. [70] I have to decide, on a probability basis, whether the medical treatment was causative, or merely incidental to the personal injury suffered. [71] The medical evidence of Dr Jamison establishes on a probability basis, to my mind, that the intrapartum asphyxia was highly likely to have caused the appellant’s cerebral palsy condition. [72] However, as Judge Beattie said in Penney, the issue is whether or not the acts or omission of a treating health professional substantially caused or contributed to the development of the cerebral palsy condition. 333-2003 16 [73] In Penney Judge Beattie found that the patient suffered intrapartum asphyxia in the period immediately preceding her birth, and that it was this asphyxia which caused her cerebral palsy condition. There was no evidence that the asphyxia was an adverse consequence of treatment by, or at the direction of, a registered health professional properly given. In other words, he held there was no causative link established between any act or omission by a treating health professional, and the onset of the intrapartum asphyxia. [74] In the present case, Dr Jamison thought there was no exclusion criteria to suggest that there may have been a preceding cause of cerebral palsy other than the acute intrapartum hypoxia, and that her CT brain scan had demonstrated normal brain morphology, and no major or multiple congenital dysmorphic or metabolic abnormalities have been demonstrated. The Rotorua notes indicate there was no central nervous system of systemic infection, and the initial CT and a CT brain scan done in October 1996 did not show any long standing prior neurological abnormalities. Current examination reveals no evidence of anterior horn cell, neuropathy that would have compromised breathing. There was no intrauterine growth restriction, and it would seem from the measurements in the first two weeks of life that there was no abnormality of head circumference reflecting brain growth. [75] The opinion of Dr Jamison was that the appellant’s athetoid cerebral palsy state was due to an intrapartum asphyxial event. [76] To a certain extent Dr Jamison’s diagnosis is confirmed in the latest medical report received from Dr Malcolm. [77] There are other distinguishing facts from this case to that of Penney. The General Practitioner in Penney’s case stated that the midwife was monitoring the foetal heart in the usual manner, and there was nothing to suggest any foetal distress. He stated that the head soon came down at the perineum and he assessed that she did not need an episiotomy. He then went on and said that after some strong pushing the mother delivered the baby’s head and the cord was found loosely around the baby’s neck. The doctor cut the cord and proceeded to deliver the baby. Neonatal paediatricians working next door rushed through to the baby, and they performed the appropriate immediate resuscitation on the spot, and then transferred the baby to the special care baby unit. [78] In the present case, Dr Batcheler noted: 333-2003 17 [i] The mother’s pregnancy proceeded beyond due date. [ii] The mother’s liquor volume was not known before labour. However, Dr Batcheler noted that when the mother’s waters broke she was said to have lost a small amount of fluid and her pad was dry. Dr Batcheler thought that this was an indicator of the foetus at increased risk. [iii] Dr Batcheler thought the mother’s pregnancy was at higher risk because of: ( i) Post maturity ( ii) Recent weight loss (iii) Probable reduced liquor volume (iv) Ruptured membranes (v) Non reassuring CTG Dr Batcheler thought it would have been appropriate to seek an opinion from the on call obstetrician regarding further management. It may also have been appropriate to have induced labour at the time. [iv] Spontaneous labour eventuated and was rapid in the first and early second stage. Dr Batcheler thought because the foetus could be regarded as high risk, this is a situation in which a continuous intrapartum electronic foetal monitoring should have been done. [v] Dr Batcheler commented that the midwife and Dr McMenamin agree that delivery of the head was held up by a tight perineum for four contractions, and the husband estimated the delay at approximately fifteen minutes. [vi] The need to transfer the baby from the prep room to the theatre delayed the initial resuscitation by a short while. [vii] The success of initial resuscitation was uncertain as there were six minutes before the baby was intubated successfully. 333-2003 18 [79] Dr Jamison commented that the delivery of the baby was attended by a registered health professional, a midwife and a General Practitioner. And that in his opinion the baby had suffered an adverse consequence of the event which had resulted in significant disability which was permanent and rare, and severe. [80] After considering the evidence of Dr Batcheler and Dr Jamison, and to a certain extent the evidence of Dr Malcolm, I am of the view on a probability basis that the treatment accorded to the appellant, both before birth and during the delivery and resuscitation processes after birth, substantially contributed to the appellant’s cerebral palsy. [81] This is not a question of blaming any of the medical professionals, but the monitoring of the appellant’s condition preceding birth, the period of delay at the perineum, the necessity to take the appellant to another room to commence the resuscitation process, were all part of the medical treatment that substantially caused the adverse consequences to her of cerebral palsy. [82] I agree with counsel for the appellant that the analysis must be to look at the totality of the treatment as a continuous whole rather than a segmented analysis of each individual stage. [83] It is with some regret that I have to depart from the conclusion arrived by the Review Officer, because as I have already indicated, the review was carried out with admirable thoroughness and professionalism. [84] In my opinion, I have followed the principles set out in Penney (supra), but the facts of this case, including the medical evidence in critical matters of detail are different from that case. [85] I accordingly allow the appeal and find that the appellant should have cover on the basis of medical mishap. Counsel for the plaintiff is awarded $1,500 for costs including all necessary disbursements. DATED at AUCKLAND this ……22nd……. day of ………December…….. 2003 (J. Cadenhead) District Court Judge 333-2003 19