Inwood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. |1 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRYAR INWOOD Appellant (Appeal No. DCA 199/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of November 1997_ APPEARANCES 2 Ms B Inwood in person Ms K Tahana for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has suffered personal injury by accident by way of medical misadventure. Background Facts The appellant lodged a claim with the Corporation in July 1996 in respect of dental treatment she had received in 1993 to tooth 11. She sought cover for what she claimed was infection and damage to her tooth following bleaching treatment to tooth 11 in June 1993. In May 1993 the appellant consulted the dental practice of Susan Clow in relation to a previously damaged tooth which had become discoloured. She was seen by a dentist employed by Ms Clow, Dr Michael Ward. He recommended a bleaching treatment using sodium perborate and superoxyl. Bleaching treatment proceeded on 26 May 1993 and the appellant attended the surgery on two further occasions on 13 and 17 June 1993 for further treatment. Ms Clow's records show that the appellant failed to keep appointments on 2 June, 8 June, 10 June, 14 June and 24 June 1993. The appellant stated that she suffered infection in the tooth which was being bleached and at various times consulted other dentists, namely Dr Filkin, Dr Beer and Dr Brown. The appellant claims the bleaching was unsuccessful and resulted in 3 swelling and bleeding of her gums. She said she suffered blistering along the top of her gums which lasted for some two weeks. Following the making of her claim the Corporation's Medical Misadventure Advisory Committee investigated the matter and the responses obtained from the other dentists purportedly seen by the appellant were as follows: (i) Dr Beer recorded that he was unable to locate any records pertaining to the appellant having consulted him; (ii) Dr Filkin stated that he saw the appellant on 29 June 1993 as a consultation rebleaching of 11. "I advised her that bleaching was unlikely to provide a solution and suggested a bonded porcelain filling. An x-ray for the tooth shows an apparently well done root canal filling but the crown has had extensive fillings. The patient subsequently failed two appointments and the subsequent letter was returned to an unknown." (ifi) Dr Brown's records show that she had an appointment with him on 21 June 1993 and a failed appointment on a subsequent date, no payment for either appointment had been paid and he has no other record; (iv) In addition, another dentist Dr Zimmerman stated that he saw the appellant following the bleaching treatments. He said he made no notes regarding any infection but noted that there was discoloration. Dr Zimmerman advised that he believed the appellant had subsequently visited Geddes Dental in Papakura but they could not provide any information on her either. As a consequence of its investigations the Medical Misadventure Advisory Committee determined that neither medical mishap nor medical error had occurred and the appellant was informed accordingly. 4 The appellant sought a review of that decision and a review hearing took place on 8 May 1997. At the review hearing, the appellant stated that she had been advised by Dr Ward that bleaching was the best way of solving the problem of her discoloured tooth and she said that the bleaching seemed to be unsuccessful as it resulted in swelling and bleeding of the gums and blistering. When she raised this with the dentist he stated that this type of reaction was normal in the bleaching process. She said she refused to undergo any further treatment because of the previous blistering. She said she consulted other dentists who commented that they did not believe that bleaching was the best solution for her problem. The Review Officer upheld the Medical Misadventure Advisory Committee's hearing and found that there was no medical mishap or medical error. At the hearing of this appeal, the appellant in effect made no further submissions nor did she seek to adduce any further evidence which might assist in the consideration of the legal issues surrounding the definition of medical misadventure. To establish personal injury in terms of the Act, the appellant must establish that she has suffered medical misadventure as defined in section 5 of the Act. The definition of medical misadventure is twofold, being personal injury resulting from medical error or medical mishap. Medical error is defined as: "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 results are not achieved or because subsequent events show that different decisions might have produced better results." 5 In relation to the issue of medical error, this Court has received no evidence from the appellant which could suggest that the dentist carrying out the bleaching treatment did not observe a standard of care or skill reasonably to be expected in the circumstances. In the case of this appellant it is noteworthy that she failed to attend several appointments for the bleaching treatment and in fact the treatment could not be completed because of that fact. There is nothing in the investigations of the Medical Misadventure Advisory Committee which would indicate that there has been a failure to observe the appropriate standard of care and accordingly this Court cannot find any basis for holding that the conduct of Dr Ward involved medical error as is defined under the Act. The second limb of medical misadventure is medical mishap which is defined as being: "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." To establish medical mishap, the appellant has to adduce evidence to show that the adverse consequence she suffered from was severe and secondly that the likelihood of such consequence was rare. Section 5(4)(b) defines what will constitute severe adverse consequences of treatment, such consequences being severe only if they result in death, or hospitalisation as an inpatient for more than fourteen days, or significant disability lasting more than 28 6 days or resulting in a person qualifying for an independence allowance under section 54 of the Act. The appellant gave evidence of bleeding of the gums and blistering. The medical opinion that this Court has access to would indicate that by no stretch of the imagination could those consequences be regarded as severe within the meaning of the Act. In so far as the question of whether the adverse consequence of the treatment was rare, this Court did not have any evidence one way or the other, however in view of the fact that there is no evidence to establish the first limb, namely severity, the absence of evidence on the question of rarity is immaterial. The fact that the appellant underwent an uncomfortable experience when seeking treatment for her discoloured tooth is not sufficient to bring it within the definition of medical misadventure. It is statutorily recognised that it is not medical error solely because subsequent events show that different decisions might have produced better results. Thus the opinion given by Dr Filkin that he considered a bonded porcelain filling to be more suitable for the problem does not mean that the fact of advice to have bleaching and for that treatment to be carried out brings it into the realm of negligence or misadventure. As I have previously observed there is no evidence from any expert that is the case. Accordingly this appeal is dismissed. DATED at Wellington this 29thday of January 1998 M J Beattie District Court Judge dc258-97.doc (nr)