CD v Accident Rehabilitation and Compensation Insurance ,Corporation

IN THE DISTRICT COURT HELD AT NEW PLYMOUTH Decision No. 37/96 UNDER The Accident Rehabilitation and 19 / 95 / 0165 Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CD of Hawera Appellant (Appeal No. DCA 238/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of May 1996 APPEARANCES RD (husband) for the appellant P A McBride for respondent DECISION OF JUDGE A W MIDDLETON As the issues in this appeal are sensitive and affect only the appellant, there will be an order that there be no publication of her name or of any details which may lead to her identification. The issue in this appeal is whether the appellant has suffered a medical misadventure within the terms of s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992 and, if she did, whether that was the cause of her infertility The appellant lodged an application for cover with the respondent on 5 July 1994 in which she alleged "surgical mismanagement, unsuccessful repair of fallopian tube" 2 The facts which gave rise to the claim are that in October 1994 the appellant suffered pelvic pain for which she was admitted to Hawera Hospital on 11 October 1984 and the following day was transferred to Stratford Hospital with suspected peritonitis/ appendicitis. The appellant understood that some mistake had been made at the Hawera Hospital when she and another patient were there and it was intended that she would be transferred to Taranaki Base Hospital while the other patient would be transferred to Stratford Hospital. In the event she was examined on 12 October 1984 at the Stratford Hospital where she underwent surgery and the cause of her problem was identified as pelvic peritonitis due to right sided pyosalpinx, otherwise known as Pelvic Inflammatory Disease. In the course of surgery the right fallopian tube was excised and a partial salpinectomy was performed on the left fallopian tube. Subsequently on 2 March 1990 the appellant returned to the same surgeon to undergo a tuboplasty which was an attempted repair, but was unsuccessful. The result is that the appellant cannot conceive by natural methods and has now undergone IVF treatment. When the appellant lodged her claim it was referred by the respondent to its Medical Advisory Committee which requested further information about the treatment at Hawera Hospital prior to the transfer to Stratford. The medical reports include one from Dr M K Howard dated 2 August 1994 which states: "On 12.10.84 when employed as Surgeon Superintendent at Stratford Public Hospital the above named was transferred to my care from Hawera Hospital where she had been an inpatient for a day or two. On examination she was found to have pelvic peritonitis due to a right sided pyosalpinx. There was also pus in the left tube. In order to obtain the best result for this patient I called in Dr Marion Carey-Smith the gynaecologist employed by the Taranaki Area Health Board and based in Stratford. She assisted with the rest of the operation which consisted of drainage of the abscess in the right tube and partial salpingectomy. On the left side the abscess was drained. It was decided the left side the abscess was drained. It was decided that the right fallopian tube was beyond repair and was excised. We attempted to intubate the left tube and both of us failed. It was agreed between us that right salpingectomy and left partial salpingectomy was the operation of choice and this was performed. I was the principal surgeon and Dr Marion Carey-Smith was the assistant for the rest of the operation. A full explanation was given to the patient and her boyfriend during the post operative phase. It was explained that permanent sterility would almost certainly ensue. On 22.06.89 the young woman came to see me in out-patients to discuss the chances of success following a tuboplasty. I explained that the chances of success were slender but she begged me to attempt this surgery. I suggested she discuss this with her boyfriend. On 29.06.89 she requested that I attempt this surgery. On 02.03.90 I operated on this young woman and found that the 3 pelvis was full of adhesions and that both tubes were blocked. I attempted tuboplasty but explained to the patient that I doubted that the surgery would be successful because of the severity of the pelvic inflammatory disease which had been present in 1984. Miss Kerehoma was fully aware before and after the surgery that due to the severity of the disease, conception was most unlikely but that under the circumstances she had been given the very best care possible." When the Medical Misadventure Advisory Committee requested further information it obtained details from Dr Howard's solicitor which included a letter from Dr Howard to the solicitor of 21 October 1994 in which he stated that he did not consider that the result would have been any different had the appellant been transferred to Taranaki Base Hospital rather than the Stratford Public Hospital. In support of this he said that at the time of the first operation "physical signs were those of pelvic peritonitis on the right side. The most likely diagnosis was perforated appendix". When he had completed the operation Dr Howard found the problem to be pelvic peritonitis due to PID. In the course of the operation Dr Howard was assisted by Dr Carey-Smith, a gynaecologist, and the pathology report confirmed the diagnosis. While the evidence showed that there may have been some mismanagement by virtue of the admission to Stratford Hospital rather than Taranaki Base, that is all the evidence available in respect of that complaint. When the Medical Misadventure Advisory Committee had obtained full details of the evidence it issued a report in which it noted the event to be: "In 1984 Mrs CD was admitted to Stratford Hospital with pelvic pain. She was operated on, on 12 October 1984 and found to have a pelvic peritonitis dur (sic) to a right sided pyosalpinx. A gynaecologist was called in and the right fallopian tube was excised. The left fallopian tube was unable to be intubated so a left partial salpingectomy was performed. A tuboplasty was performed on 2 March 1990, but the claimant was advised that the chances of success were slim. It appears that the surgery was unsuccessful. Mrs CD is on the waiting list for the IVF programme at Greenlane Hospital." Then the report records its discussion as: "Mrs CD's claim relates to infertility which was allegedly caused by surgical mismanagement and unsuccessful repair of fallopian tubes. The committee has considerable evidence before us with respect to Mrs CD's claim. In 1984, she was admitted initially to Hawera hospital with the diagnosis of ? appendicitis (this was on the 11 October 1984). At that time it was shown that she had normal white cell count, no toxic changes and ESR of 50 and she was not pregnant. She was observed for 24 hours and the decision was made to transfer to Base hospital. She was in Hawera hospital for one day, she was then transferred. For some reason, she was then transferred to Stratford hospital rather than the Base hospital at New Plymouth. At that point she was admitted, she was thought to be suffering from perhaps peritenotis (sic) or 4 appendicitis. She was taken to theatre. The diagnosis was acute bilateral salpingitis. The operation notes comment that the right tube was beyond repair and that it needed excision. The left tube was also affected but to a lesser degree and attempts were made to preserve that tube. The committee was carefully considered all the evidence with respect to Mrs CD's claim and the committee is of the view that Mrs CD's infertility problems are due to the natural history of her pelvic inflammatory disease and not to alleged surgical mismanagement and unsuccessful repair of fallopian tubes by Mr Howard. As there was no causal link between the treatment that Ms CD received and her subsequent problems, the recommendation of the committee is that this claim should be declined, to become final after 15 working days. The proposed advice of the Committee is that cover be declined, as neither medical error nor medical mishap have occurred." On 2 March 1995 the respondent notified the appellant that based on the findings of the Medical Misadventure Advisory Committee her claim was declined. The appellant applied for a review of that decision, but her application was declined by the review officer. The appellant's husband submitted that while the initial claim was for "surgical mismanagement", neither he nor the appellant was making a formal complaint against the surgical staff involved in the operation. He submitted that the basic claim was the mismanagement which had led to his wife being transferred to Stratford Hospital rather than Taranaki Base. Mr McBride submitted that even if medical error was established the evidence did not establish that it was the cause of personal injury. He submitted that the immediate cause of the appellant's infertility was the surgery which was required because of the infection of the fallopian tubes by PID. As I explained to the appellant's husband at the hearing, the Medical Misadventure Advisory Committee was also concerned at the allegation that there had been mismanagement in relation to transfer to what may appear to have been the wrong hospital. However, having obtained details of that, the Committee concluded that the end result was not affected by that transfer. Nothing further could have been done more quickly for the appellant had she been transferred to Taranaki Base Hospital. Dr Howard with the assistance of Dr Carey-Smith, had operated and had found pelvic inflammatory disease which necessitated the operation which was undertaken. The Medical Misadventure Advisory Committee is specifically set up to consider applications of this nature and a specialist obstetrician was a member of that Committee. The Committee was able to consider all the evidence in order to assist it in making a recommendation as to whether there had been mismanagement or a failure of proper surgical care. The finding was that there had been no mismanagement at any stage of the appellant's treatment and that while the original diagnosis was a possible peritonitis/ appendicitis that was consistent with 5 her symptoms and an operation the following day disclosed PID for which the appropriate and proper surgical treatment was undertaken. The result of that treatment is of course that the appellant is not now able to conceive by natural methods, but that result has flowed from progression of the pelvic inflammatory disease and the necessity for surgical intervention. Accordingly there is no evidence to support the appellant's contention that she has suffered as a result of a medical error. The appeal is dismissed. DATED at WELLINGTON this 3/ day of m// 1996 A W Middleton District Court Judge de238-95.doc(rd)