CB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 70 /97 HELD AT NAPIER 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 CB Appellant (Appeal No. DCA 137/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of April 1997 P Callinicos for appellant F M Patterson for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a question of the deemed date of injury by medical misadventure. The appellant underwent a cholecystectomy on 29 July 1982. A note was provided in July 1994 from the University of Auckland Department of Surgery: "[Appellant] was admitted under my care to Auckland Hospital on 2/3/7/82 (sic) for cholycystectomy. The indication for surgery was multiple caculi within the gall bladder causing biliary colic. There had been no evidence of jaundice or cholangitis. On 29/7/82 a choleycystectomy was performed by the Chief Surgical Registrar, Dr Peter Raudkivi, FRACS. The operation confirmed the pre-operative diagnosis and no abnormality was found within the abdominal cavity. It should be stated that a full laparotomy was not possible because of this lady's obesity. The right - 2. upper quadrant transverse was closed in two layers with O-Proline and staples to the skin. The post-operative course was uneventful until 3/8/82 when the patient developed a fever and had a pink area just below the wound. An ultra sound was performed on 5/8/82 and no abnormality was found within the abdominal cavity. Antibiotics were commenced. Since the fever and pain receded rapidly and the patient was clinically well no further action was taken and she was discharged from Auckland hospital on 6/8/82. The patient was followed up by her General Practitioner and we have no further records about her recovery from the operation.' In an affidavit received at the appeal hearing, the appellant's father deposed rather more graphically to the appellant's post-operative complications, as follows: "APPROXIMATELY five or six days after she was discharged from hospital [appellant] started complaining of severe abdominal pains. Things got worse. I was sitting in our lounge watching the "Sullivans" on TV when I heard [appellant] yelling. Margaret ran into [appellant's] bedroom and was in a real panic. I went into [appellant's] bedroom and found that her stomach was blowing pus like a volcano. Margaret was going to call an ambulance but I decided it would be quicker to drive [appellant] to Auckland Hospital's Accident and Emergency Department. I placed a towel over the wound and got her to the hospital. [Appellant] was taken straight into an examination room. There was a House Surgeon present plus two other junior doctors. I was standing behind [appellant] who was lying down on a bed. The doctors decided to call in the original surgeon, Dr Raudkivi, who was at the hospital on call. Dr Raudkivi came down and the three doctors remained present together with two nursing staff. DR Raudkivi put on a gown and examined the stomach by feeling around it with his fingers. He then stated to all present that there was "definitely an infection present" and that there was "probably a suture". He turned to [appellant] and said "that's a stitch dear"." The appellant places some reliance on the comments allegedly made by Dr Raudkivi because it is the appellant's primary argument that, at that early stage, a tentative or inclusive diagnosis was made that the post-operative flare-up was caused by a suture It was apparently considered unnecessary to open the wound because treatment with antibiotics appeared to be effective at that stage. The appellant also deposed, in an affidavit filed on appeal, that she heard Dr Raudkivi telling other doctors present that the problem was probably a suture and, when she asked what a suture meant, he said "that's a stitch dear". The question of whether a diagnosis was made at the time of post-operative treatment is important to the appellant's case having regard to s 63(3) of the Accident Rehabilitation and Compensation Insurance Act 1992, as follows: (3) For the purposes of this section, where a claim involves [medical misadventure or] conduct of a kind described in section 8 (3) of this Act, the personal injury 3 - shall be deemed to have been suffered on the date on which the person first received treatment for that personal injury as that personal injury, being treatment of a kind for which the Corporation is required or permitted to make payments .... irrespective of whether or not it makes any payment in the particular case. It is the appellant's argument that the post-operative treatment dealt with the infection caused by the suture "as that personal injury". Section 63(3) applies only if there was personal injury at that time, namely personal injury by medical misadventure in terms of s 5 of the Act. Ultimately, and after many years, the presence of the suture was found to be a cause of chronic health problems and the Corporation accepted that the appellant suffered an injury by medical mishap by virtue of an adverse consequence of the 1982 cholecystectomy treatment because the likelihood of the adverse consequence was rare and severe. On the hearing of the appeal I enquired whether, assuming the factors relevant to the appeal, the infection treated post-operatively was itself a rare and severe adverse consequence, or whether such a consequence could only be regarded as having developed at a later time when the symptoms became chronic. It may have been necessary to consider whether further evidence should be required to deal with the question whether there was a medical mishap injury characterised by rarity and severity in terms of s 5 of the Act. Counsel confirmed that, for purposes of the appeal, the Corporation accepted that the inflammation and discharge that was treated post-operatively may be regarded as such a consequence, and therefore as medical mishap. The respondent's argument remains that the injury was not treated then "as that personal injury" because it was not diagnosed. The respondent's case is that it was not treated in terms of s 63 until Mr M A Shields removed the suture material on 4 March 1994. Mr Shields informed the Corporation's medical misadventure unit in a letter of 6 July 1994: "This woman was admitted under my care as an emergency on the 4th of March 1994 suffering from an exacerbation of chronic abscess formation in previous upper abdominal surgical scars. These scars related to surgery done about 1982 in August. The history and appearance suggested the presence of stitch material in the septic areas. On the 5th of March under a general anaesthetic the scars were explored and two lengths of Prolene were located and removed. The total length of material was 34cm. The shorter length disappeared deep into the wound into the deep layers of the abdominal wall and was divided so that there is probably some material still in place. The various wounds healed by secondary intention. She was discharged on the 1 1th of March and complete healing was confirmed on the 20th of April 1994. As the remaining Prolene is not in the abscessed area it may never prove to be a problem in the future but if another sinus erupts it is likely to be at the bottom of it. The use of non-absorbable monofilament suture material to close the abdomen is a common practice, particularly where the patient is obese. It very seldom causes problems afterwards but a stitch abscess such as this can be regarded as a standard complication of any surgery in which the material is used. There really is very little else to say about it." - 4 - The Medical Misadventure Committee reported on 13 October 1994: "This claim relates to ongoing problems abscess infection following a cholecystectomy in 1982 which finally resulted in admission to hospital and exploration of the wound and the removal of lengths of suture. The Committee is satisfied is there is no evidence to establish medical error. Medical Mishap, for non-absorbable sutures to cause ongoing problems over a period of ten years with wound infection and abscess is rare and would occur in 1% or less of cases following surgery Severity, [appellant] had experienced episodes of pain and infection relating to the infection in her surgical scar at various times over the years but finally in March 1994 she was admitted to Napier hospital and the wound explored. A chronic abscess formation had been discovered and that amounts of proline, the suture material, was still in place and causing the abscess formation. The Committee is satisfied that [appellant] was significantly disabled for a period of greater than 28 days. Our recommendation that this claim should be accepted, our advice to become final after 15 working days." There is no need to refer any detail to the history between 1982 and 1994, because the appellant's argument was that the date of injury, by application of s 63(3) of the Act, was 3 August 1982. It is worth noting, however, that in the intervening period the appellant and her father continued to maintain that her problems were caused by a foreign body left remaining after the 1982 operation. They based that belief on their recollection of what Dr Raudkivi had said, and other comments made by doctors who treated the appellant over the years. By and large, it seems that many of the appellant's complaints were dismissed by doctors and, if she is to be believed, there was a sad neglect of her needs, leading to tragic consequences because she links her chronic pain with drug use leading to mental health problems and psychiatric treatment. Mr Shields stated in a letter of 29 October 1996: "Her subsequent passage through numerous, often inexperienced, hands displays either ignorance or an extra-ordinary failure to listen to what the patient was saying about her abdomen and draw the right conclusion as to the cause of her pain. I may say that I consider that by the time I saw her it was blindingly obvious what was the matter, but perhaps thirty years surgical experience made it so. It appears that the Review Officer wishes to deny the obvious. There is nothing "...normal..." about a tender abdomen with inflammation and fever. It is not "...normal..." to develop a discharging sinus in a cholecystectomy wound scar. It is not even usual. I have just checked my own continuous surgical audit started 1/1/94 and I find that I have had no wound sepsis at all among 66 acute and elective cholecystectomy closed with non-absorbable material. [Appellant's] wound complication was, as always in such cases, the result of low grade infection around a foreign body (Prolene suture) deep in the wound and the misadventure clearly occurred at the time of operation on 29th July 1982 when the material was contaminated. Had it not been contaminated with bacteria then, it could not have caused the symptoms and troubles which were allowed to accrue for nearly twelve years. Additionally, I can state with absolute certainty that it is not "...normal..." after cholecystectomy to go through all the trials and tribulations that [appellant] went through during the twelve years after her operation. - 5 - As for the commencement of treatment the only conclusion I can draw from the information submitted is that treatment for the infected suture material, however misdiagnosed or misdirected, was started at the time she was thought to have "...peritonism..." five days after cholecystectomy. I refer in particular to the discharge summary note and Professor Hill's letter (see 3 above). Treatment therefore commenced on or about the 3rd August 1982 and continued until she had healed and was free of pain on the 20th April 1994." That letter is at least one basis upon which counsel for the appellant submits that the review officer's decision should be revoked and the matter should be considered anew by the Court. In fairness, it should be mentioned that the evidence before the review officer was that the suture was left in place as an ordinary surgical procedure and the clinical notes at the time did not explain the rarity or severity of the infection which was treated on 3 August 1982. The respondent's argument, expressed in the alternative, is as follows: 1. That there is sufficient evidence that Mr Raudkivi treated the infection on 3 August 1982 on the basis that it was or could have been caused by the suture in the wound. 2. Alternatively, if the evidence of the surgeon's reference to the probable cause of infection as related by the appellant and her father is not accepted, then s 63(3) is sufficiently satisfied by virtue of the fact that symptoms caused directly by the infecting suture were specifically treated at that time, whether the cause was diagnosed or not. The second submission was addressed by counsel upon invitation by the Court to do so. It may be that there is very little practical difference, because the treatment was obviously addressed to an infection arising from the operation and that, quite obviously, the possibility that the infection was caused by sutures must have been considered at the time. That seems to be an obvious inference that is not at all displaced by any of the medical evidence. There is no evidence, for example, to suggest that Dr Raudkivi excluded the possible diagnosis of infection from sutures and intended only to address infection from some other source. It would be contrary to common-sense to suggest that. Therefore, the appellant's case does not stand or fall on the credibility of the appellant's evidence and that of her father about comments made by Dr Raudkivi at the time. The respondent does not enter into dispute about the nature and purpose of the treatment, but argues instead that the personal injury was not treated "as that personal injury" until a correct diagnosis was made. That approach moves the date of injury to 4 March 1994 when the appellant was admitted for emergency care with an exacerbation of chronic abscess formation, and underwent exploratory surgery under general anaesthetic on 5 March 1994. Application of s 63(3) in those circumstances produces an apparent injustice because the claimant had been seeking treatment for years and had suffered from misdiagnosis. It may be that each occasion of misdiagnosis raised a further question of medical misadventure, but, if the respondent's argument is correct, the Corporation - 6- could not be liable to meet a claim by the appellant for any period prior to correct diagnosis and treatment of her condition. Only then would an injury be deemed to have occurred. Even in view of that evident unfairness, it may be that, for policy reasons, it was intended by the legislature that the Corporation should not be exposed to liability for any period prior to correct diagnosis and treatment. Section 63(3), as originally enacted, applied only to cover by the Corporation for mental or nervous shock. By an amendment of 1 July 1993 it was extended to medical misadventure. The evident intent of the section is to fix the date of personal injury by medical misadventure as the date on which the person first received treatment for the medical misadventure injury as that personal injury. It may be imagined that if the words "as that personal injury" were omitted then there may be an ambiguity because prior treatment, that itself comprised the medical misadventure, or came about because of the medical misadventure, could have been regarded as treatment for the personal injury. For example, if a malignant tumour was wrongly diagnosed as being a benign tumour then medical misadventure would occur. Treatment as a benign tumour might proceed until correct diagnosis revealed the mistake. Treatment would then be instituted for a malignant tumour, but the medical misadventure injury as such, in such a case of misdiagnosis is likely to be consequential, possibly by way of emotional harm requiring treatment "as that personal injury". The converse position of perhaps a radical excision of a benign tumour would be an injury consisting of scarring and removal of tissue. The deemed date of injury under s 63(3) may not occur until cosmetic treatment or treatment for emotional harm occurs. Those possible examples are suggested only to illustrate that the circumstances can be seen to be different, in a case such as the present, where treatment is given in response to the very symptoms that are caused by medical misadventure, even when there is no definite diagnosis. Counsel for the respondent argued that the Act is prescriptive, designed to achieve certainty, and that treatment envisaged by s 63(3) must be specifically directed and not based on a supposition. When regard is had to the plain meaning of the section in likely cases to which it will be applied, it appears that the section must have been intended to protect the Corporation against liability prior to treatment being given for the purpose of remedying injury caused by medical misadventure. In most cases, it is likely that a correct diagnosis would have to be made before such treatment could be offered. The respondent's argument that a diagnosis is essential, goes a step further than that and ignores a case, such as the present, where treatment is given to remedy a rare and severe adverse consequence of other treatment (s 5(1)(a) and (b) and s 5(2)), but where the exact diagnosis is unclear. In the instant case I find that the treatment for infection was treatment that was intended to include the possibility that the infection might have originated from a suture, and I hold that such treatment was treatment for the personal injury of infection from a suture "as that personal injury" notwithstanding that it was a general - 7- treatment intended to remedy infection that could at the time have been caused otherwise than by the sutures. Counsel for the respondent referred to Jacobs 101/95 which involved rather similar circumstances where an appellant had suffered undiagnosed urinary problems for about four years until a piece of nylon material was found in his bladder during a cystoscopy. That decision can be distinguished because there is no mention in the decision that the appellant in that case had received treatment for the urinary infection. That case illustrates a reason for the deemed date prescribed by s 63(3), because it avoids the Corporation having to deal with the dating of a claim based on an uncorroborated history alleged by a claimant, where it would be reasonable to expect the claimant to have sought treatment for the injury in question. In the present case the appellant sought treatment repeatedly, and I am satisfied that the first qualifying treatment was in fact given on 3 August 1982. For those reasons the appeal is allowed. The Corporation's decision is revoked and the date of injury is fixed at 3 August 1982. The appellant will have costs of $800. DATED at WELLINGTON this 28th day of April 1997 D A Ongley District Court Judge