Newton-King v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 102 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CAROL KATHERINE NEWTON-KING (Al 106/05) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 8 April 2008 APPEARANCES Mr J Miller, Counsel for Appellant. Ms A Douglass, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent's decision of 6 July 2004, whereby it declined the appellant's claim for cover for personal injury by medical misadventure being medical mishap, the grounds stated being that because the claim was for delay in diagnosis and lack of treatment, medical mishap did not apply. [2] The facts and circumstances of this case do give rise to a question of law, although with the change in legislation which took place in 2005 for medical misadventure claims, it would likely mean that the issue does not have major long-term significance. 106.05 (pg) " " - -- -- -. ... . . ... . ... . .. .. 2 [3] The facts which are relevant to the issue in this appeal are not in dispute and may be stated as follows: . In June 2001, the appellant consulted her family doctor, Dr T Ngan-Kee, for a problem with a lump on her left breast. This became a matter of great significance for the appellant but is not relevant to this appeal, save for it being the reason that the appellant consulted her GP. During that consultation the appellant pointed out a bleeding lesion on her nose. The appellant has subsequently stated that Or Ngan-Kee identified it as a ruptured blood vessel and advised it did not require any medical attention. . The matter of the lesion on the nose was not noted in Dr Ngan-Kee's medical notes, and when matters came to issue he could not remember anything about this particular matter. Over the next 21 months the appellant consulted various doctors in Dr Ngan- Kee's practice for other matters, but no mention of any ongoing concerns about the lesion on her nose In March 2003, the appellant saw a Dr Jennifer Pilgrim, a Skin Specialist, who diagnosed the lesion on the appellant's nose as being Basal Cell Carcinoma (BCC). . In April 2003, the appellant underwent plastic surgery for a total excision of that lesion in a two-stage procedure. The appellant experienced complications following that surgery and required several further operations to improve the shape and reconstruction of her nose and to relieve a partial airway obstruction. The appellant lodged a claim for cover for personal injury by medical misadventure, and it seems to be the case that both medical error and medical mishap were on the table. The claim was investigated by the respondent's Medical Misadventure Unit and which sought and obtained independent medical opinion in relation to the misdiagnosis of Dr Ngan-Kee in June 2001. . The opinion received was that neither Dr Ngan-Kee nor his colleagues subsequently could be considered in error in failing to diagnose the lesion. It was accepted that an early diagnosis of morphoeic BCC is extremely difficult. 3 Consequent upon the reports from independent specialists, the respondent issued its decision on 6 July 2004, declining cover on both types of medical misadventure, with it being determined that there was no medical error on the part of Dr Ngan-Kee, and secondly, the circumstances of the claim did not give rise to a claim for medical mishap. In a Review Decision dated 4 February 2005, the Reviewer found that the outcome of the injury of BCC was not rare, and the application was therefore dismissed. [4] It is the case that the appellant has not pursued the issue of medical error and in fact has accepted that there was no medical error on the part of Dr Ngan-Kee. [5] In a nutshell, the claim as now presented by Mr Miller on appeal is that the proper way to look at the matter is to consider whether the consequence is rare and severe having regard to what was considered to be the problem at the time of the treatment, namely a burst blood vessel, not what it actually was, a cancerous growth. [6] Associated with that submission is the submission that it having been determined that there was no medical error on the part of Dr Ngan-Kee, then it must be taken that his treatment of the appellant back in June 2001 was "treatment properly given" within the meaning of Section 34(1) of the Act as it then was. [7] Mr Miller submitted that it must be accepted as being rare for treatment for a burst blood vessel to end up with the severe consequences which did occur to this appellant. He submitted that the matter should not be looked at from the perspective of it being treatment for BCC, where the consequences of disfigurement, etc., could be expected, and it certainly would not be regarded as "rare" as that word is defined in the Act. [8] In essence, Mr Miller's submission was that the "treatment" given by Dr Ngan- Kee on 12 June 2001, which in effect was that no treatment need be given, was nevertheless treatment properly given as it was not considered negligent, and therefore the rare and severe outcome for the diagnosed burst blood vessel come within the statutory criteria of Section 34. 4 [9] Finally, Mr Miller noted that the medical misadventure provisions in the succeeding Accident Compensation Legislation to the 1992 Act had changed. He considered it to be significant that Section 5(7) of the 1992 Act was not included in either the 1998 Act or the 2001 Act. Section 5(7) stated: 'Medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment, unless that failure is negligent." [10] Ms Douglass for the Respondent, submitted that whilst it may have been found that there was no medical error on the part of Dr Ngan-Kee, nevertheless the failure to diagnose and the inaction taken at that consultation of 12 June 2001, does not constitute treatment properly given within the meaning of the Act. There was a failure to treat even though it may not have been considered negligent in law. [11] Ms Douglass further submitted that the Act cannot have intended that the rarity criteria be considered on an incorrect diagnosis. [12] Finally, she submitted that the two types of medical misadventure, namely medical error and medical mishap, are mutually exclusive and that it is not open to go from one to the other selecting certain parts of each. It cannot be the case that if medical error does not apply, then by default a case can be made out for medical mishap. DECISION [13] The appellant's claim for cover is for personal injury caused by medical misadventure, being medical mishap. The claim for cover was lodged after the commencement of the 2001 Act for an alleged mishap which occurred before the commencement of that Act. In those circumstances, Section 360 of the 2001 Act applies and the 2001 Act is applicable as well as the 1998 Act. (14] In the circumstances of the statutory provisions relating to medical mishap, the provisions of the two acts are to all intents identical and I will refer only to the provisions of Section 34 of the 2001 Act. 5 (15] The criteria of medical mishap which are in issue in this appeal are whether the treatment in question was properly given and whether the adverse consequence of that treatment was rare. [16] There is no dispute on the evidence that the adverse consequences of the treatment received by the appellant are severe. It is further accepted that the appellant has suffered a physical injury as a result of the delay in the diagnosis of her BCC. [17] The treatment properly given contended for by Mr Miller is the treatment given by Dr Ngan-Kee in June 2001, not the treatment given by the surgeon, Dr Armstrong, in 2004, for the excision and subsequent reconstruction surgery on the appellant's nose. [18] The treatment of Dr Ngan-Kee in effect amounted to a failure to diagnose the early stages of BCC, even though that failure was not as a matter of fact or law regarded as amounting to medical error. [19] It is at this point that Mr Miller submits that if the "treatment" did not constitute medical error, then it must be regarded as being treatment properly given. [20] That submission, I find, is not in accord with the way that this particular provision has been considered in recent decisions in the High Court, in particular the decision of Ronald Young J in Roborgh (Wellington HC, CIV 2003-485-1477) when His Honour found that even though no medical error had been found, the claim failed because the treatment, or lack of it in that case, could not be said to have been properly given. [21] The facts in Roborgh were again considered by Mackenzie J when considering an application for leave to appeal to the Court of Appeal. In his decision Justice Mackenzie identified the issue as being ". . .is there a possible category of treatment which is not properly given by a registered health professional but which does not involve the failure of a registered health professional to observe a reasonable standard of care and skill?". His Honour considered that that question was a question which ought to be considered by the Court of Appeal. (22] For the record, subsequent events have overtaken that granting of leave to appeal and instead the matter went back to the District Court for reconsideration of medical error, and where a decision of no medical error has been found by His Honour 6 Judge Ongley (Decision 186/07), and for which leave to appeal to the High Court is currently being sought. [23] In the present case, I do not consider it necessary to have that question of law answered, where on the plain facts of this case it must be found, and I do so find, that the treatment, or lack of it, by Dr Ngan-Kee cannot be regarded as being treatment properly given. Treatment properly given would have had to have included some positive action for treatment of BCC, rather than the non-treatment which did occur and which was based on a misdiagnosis. [24] In those circumstances I find that as the claimed treatment was not properly given, a fundamental condition of cover for medical mishap cannot be made out. It must be remembered that the injury was the consequences of the delay in diagnosis where the opportunity for less invasive treatment, if the correct diagnosis had been made earlier, was lost. There is no dispute that the treatment ultimately provided to the appellant was properly given, but at that time the consequences of that treatment could not be regarded as being rare as an outcome, even if it is accepted that they were severe [25] I cannot subscribe to Mr Miller's theory that the matter must be looked at from the perspective of a rare outcome for a misdiagnosis of a ruptured blood vessel. The ruptured blood vessel was not the personal injury and the claim must proceed from an identification of the personal injury sought to be covered and to then move on from that to a consideration of the treatment and the adverse consequences of treatment. [26] In this case, I find that the personal injury must be the greater damage or more invasive treatment that was necessary because of the delay in diagnosis. That is in line with the opinion of the independent advisor, Dr Gray, who advised the Medical Misadventure Unit on this very matter. That is the personal injury and it cannot, by any stretch, be regarded as being a burst blood vessel, which it was not. [27] Accordingly, I find that even though no medical error can be found in the treatment of the appellant in June 2001, nevertheless from the perspective of hindsight it is the case that treatment was not properly given and in those circumstances medical mishap cannot be established. 7 [28] For the avoidance of doubt, I find that the mere fact that no medical error can be found in the manner of treatment, does not make it necessarily the case that the treatment was properly given. The two tests are not complementary, and, as is the case here, improper treatment does not equate with negligent treatment. [29] For the foregoing reasons, therefore, I find that the appellant cannot bring herself within the statutory criteria to establish having suffered personal injury by medical mishap. This appeal is therefore dismissed. DATED this 12 day of may 2008 M J Beattie District Court Judge ". . .. 1. ..... .. .. .