Te Whare v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 275 198 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 CHANCE TE WHARE DCA 69/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of July 1998 APPEARANCES Ms Sandra Mechen counsel for appellant Mr A D Barnett counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant suffered personal injury by medical misadventure being medical mishap. BACKGROUND 2 The appellant was born on 25 February 1995. On the afternoon of Sunday, 24 September 1995, the appellant was taken to the South Care Medical Clinic at Papatoetoe. His parents were concerned about his behaviour and symptoms. He was seen there by Dr Ranchod. To Dr Ranchod he presented as a child having a fever with symptoms of a cough and crusted nose. He also diagnosed an ear infection and prescribed a seven day course of Ceclor, with paracetamol. Dr Ranchod later said there was nothing in the history or examination to lead him to be suspicious of meningitis. Dr Rachod advised that the child should be reviewed by his GP in a week. According to the appellant's parents, the child was a lot worse on the following day, the 25th of September 1995 and they thereupon took him to their GP, Dr Gilchrist. Dr Gilchrist examined him and considered he had a chest infection. He had a temperature. Dr Gilchrist carried out an examination with particular attention as to whether he had any symptoms suggestive of meningitis. It was Dr Gilchrist's opinion that he was not displaying any symptoms of meningitis but as the child's parents were very concerned, Dr Gilchrist agreed to refer him to the Paediatric Clinic at Middlemore Hospital for a second opinion. Middlemore Hospital records show that he arrived at the Emergency Department at 1451 hours. He was initially triaged there and then sent for a chest x-ray. He arrived in the Acute Assessment Unit at 1525 hours where he was seen by an experienced Paediatric Nurse and had a full set of recordings. He was then examined by the Paediatric Registrar, Dr Miles. From her examination it was evident that the child had signs of Meningitis and a lumbar puncture was performed and which was shown to be abnormal and subsequently grew streptococcusneumoniae. That laboratory result was obtained at 1730 hours. The Middlemore Hospital Paediatric Team had considerable difficulty in gaining venous access to commence IV antibiotic treatment. Several attempts were made by experienced Registrars and a Consultant to obtain an intravenous line but one could not be obtained by 2 hours after arrival at Hospital. The appellant was thereupon transferred to the Starship Hospital where an IV line was able to be gained and a course of the appropriate antibiotics was thereupon commenced. The Hospital record show that he appeared to recover rapidly once IV antibiotics were administered and 24 hours after his admission he was transferred to a ward and then the following day, the 27" of September 1995, he was transferred back to Middlemore Hospital. At that stage he was stated as being well, feeding well, and while less active than usual appeared to be both seeing and hearing. On 29 September 1995 after being well, apart from the occasional temperature spike, he began fitting. He then had 48 hours of improvement but on the 2nd of October 1995 he had a temperature and a prolonged convulsion. The appellant has suffered ongoing problems from the pneumococcal meningitis he contracted and the principal consequences of his being stricken with this disease have been bi lateral subdural effusions, seizures, profound hearing loss, profound visual impairment, developmental delay and possible diplegia. A claim for cover under the Act was lodged on 13 November 1995. That claim was treated as medical error, being a failure to diagnose meningitis. Both the GPs who had examined the appellant prior to his admission to hospital were asked to report and did so. After considering the matter the Medical Misadventure Advisory Committee found that there had been medical error as set out in section 5(7) of the Act and that there had been a failure by a registered health professional to observe a standard of care and skill that was reasonable in the circumstances. It seems that the allegation of negligence was levelled both against Dr Ranchod and against the Paediatric Team at Middlemore Hospital. When advice of this ruling was received by Middlemore Hospital Dr Ross Nicholson, Consultant Paediatrician and acting clinical head of child health at the Hospital, responded and advised that his Department had serious concerns about the finding of 4 the MMAC. He contended that a conclusion of medical error had been reached without seeking any information from any of the clinicians involved at the Hospital or by reference to any case notes. He required that the matter be reconsidered. It is to be noted that Dr Ranchod similarly made protests at the finding that had been made. The outcome was that the Corporation advised that it would further consider the medical error question but that in the meantime the claim would be accepted on the grounds of medical mishap. The parties were advised that if an "error" finding were to be made by the Committee then this would replace the finding of "mishap" There appears to have been some delay before the MMAC did consider the matter again, possibly because of a delay in obtaining hospital notes but, in any event the committee met for a second time on 28 November 1996. Having considered the responses of Dr Gilchrist and Dr Ranchod, the committee stated: "On the basis of this the revised proposed advice is for the claim to be declined on the basis of error and for this to go on to become final advice if no new information arises to challenge it. This proposed advise relates specifically to Dr Ranchhod. It is our recommendation that the matters relating to the Paediatrician at Middlemore Hospital be considered by a committee where a Paediatrician is present and that this takes place once the admission notes of the 25 September 1995, when the child was admitted to Middlemore, are received for consideration." On 15 January 1997 Dr Nicholson again wrote to the committee and stated as follows: "With regard to your letter dated 3 January 1997, I thank you for the opportunity to finally comment and give some facts surrounding the events of this infant's admission to Middlemore Hospital on the afternoon of 24 September 1995. Chance was referred to Middlemore Hospital by Dr Gilchrist and arrived at the Emergency Department at 1451 hours. He was initially triaged there and then sent for a chest x-ray. He arrived in the Acute Assessment Unit of the 5 children's inpatient medical ward at 1525 hours where he was seen by an experienced paediatric nurse and had a full set of recordings. Shortly after this he was examined by the paediatric Registrar, Dr Miles. I enclose a copy of her assessment. It is clear from her examination that the child had signs of meningitis and she went on appropriately to perform a lumbar puncture which was abnormal and subsequently grew streptococcuspneumoniae. I enclose a copy of the laboratory result and note this was performed at 1730 hours. Because of the difficulty with venous access, an appropriate dose of Ceftriaxone was given intramuscularly and he was transferred to the Paediatric Intensive Care Unit at the Starship Hospital. I do not believe there was any delay in making the diagnosis of meningitis at this hospital. There was some delay in giving the first dose of parenteral antibiotics because of difficulty inserting an intravenous cannula despite multiple attempts by Dr Miles, myself and Dr Walker, another Paediatric Consultant. Problems of the venous access are at times unavoidable in sick infants however I do not believe this delay was significant in the total length of the illness. He was infected by a very virulent organism. Pneumococcal meningitis has very high morbidity and morality. Chance was clearly unwell at the time of his admission and I believe the diagnosis and initial treatment was made in a timely and appropriate fashion. " On 25 March 1997 the MMAC met for a third time and stated inter alia: "The Committee is satisfied on the evidence before us that the health professionals involved in Chance's are Dr Ranchod, and Dr Gilchrist as General practitioner, and the doctors at Middlemore Hospital who treated Chance on his initial admission on the 24 September 1995 did exercise a standard of care and skill reasonably to be expected in the circumstances, and there was no negligent failure to diagnose meningitis. 6 The Committee has also noted that the Committee of 29 February 1996 recommended that the claim be accepted as a rare and severe adverse consequence, if error were not proven. The Committee has noted from Dr Nicholson's letter, it is clear that Chance suffered from pneumococcal meningitis which has a very high morbidity and mortality rate. The Committee is of the view that this is a case that revolves around medical error in a failure to diagnose in the initial phases, and later a failure to treat. It has already been established by the Committee that although there was an initial delay, the diagnosis was not a negligent one, and it is clear from the evidence from Dr Nicholson that there was no failure to treat. It has already been established by the Committee that although there was an initial delay, the diagnosis was not a negligent one, and it is clear from the evidence from Dr Nicholson that there was no failure to treat. The Committee looking at the adverse consequence that Chance has been left with, have sought to establish whether this is due to the delay in diagnosis or whether it is due to the underlying condition, i.e. could be said that but for the actions of a registered health professional, Chance would not have been injured. As stated by Dr Nicholson, pneumococcal meningitis has a very high morbidity and mortality rate, and it is the Committee's view that Chance's adverse consequence is in fact due to the underlying condition of pneumococcal meningitis, and is not causally related to the actions of a registered health professional. It is the Committee's view therefore that this claim should not be accepted either under error, or not be accepted at all. As the Committee has found there is no evidence to establish error in this claim, it is also the Committee's view that a recommendation that the claim be accepted on the basis of mishap is also inappropriate." The Committee met for a fourth time on 12 June 1997 in the presence of a paediatrician and the advise given by the committee on that occasion was: 7 "At this meeting the Committee looked specifically at the role of the Paediatrician and their provision of care to Chance, particularly in relation to the diagnosis of meningitis. We discussed the matter at length and are satisfied that there was no evidence of any error in relation to the care provided by the Paediatrician or in relation to the diagnosis of Chance. We therefore recommend that there is no issue of error in regard to the Paediatrician's role. Proposed advice of the Committee is that cover be declined, as neither medical mishap or medical error has occurred. This advice to become final advice following the 15 day consultative period, should no evidence to the contrary come to light." As a consequence of this advice from the MMAC, the Corporation realised that it had been in error in splitting the claim on the basis of medical mishap and/or medical error and did on the 19 June 1997 advise the parents of the appellant that the claim had been inappropriately accepted as medical mishap, that there was no medical mishap and therefore cover was declined, both on that basis and on the basis of medical error. For the purposes of review of that decision the claimant's parents submitted a report from Dr R P Aickin, Clinical Director and Consultant Paediatrician at Starship Hospital. Dr Aickin's report states: "Pneumococcal meningitis is a severe disease with significant mortality. It is not uncommon for children to be left with permanent disability despite optimal diagnosis and medical therapy. In addition the disease can be very difficult to diagnose in young children, who may only show very non-specific signs such as fever and drowsiness initially. In contrast to meningococcal meningitis (the cause of most meningitis in Auckland at present) pneumococcal meningitis does not cause a rash and is therefore even more difficult to diagnose early. Bacterial meningitis is thought to arise from spread of bacteria from the upper respiratory tract through the blood stream to the meninges (lining membranes 8 of the brain). The bacteria involved are frequently found on throat swab cultures from healthy people. Meningitis is often preceded by a day or two of upper respiratory symptoms such as cough and runny nose. Inflammation of the throat may allow the bacteria to enter the blood stream, although it is unknown why only a few children are unlucky and develop meningitis despite the great frequency of coughs and colds in this age group. It is quite likely that Chance did not have meningitis at the time that he was seen initially by Dr Ranchod on 24/9/97 and that this infection developed during the next 24 hours. Meningitis is a condition which normally develops over hours rather than days, and I note that Dr Gilchrist did not strongly suspect the diagnosis after examining Chance even at that time. However Dr Gilchrist responded appropriately to the situation (of a young infant with high fever and parents who were very worried) by referring Chance to the Paediatric Service at Middlemore Hospital for a further opinion. By the time that Chance was seen by Dr Miles (Paediatric Registrar) at Middlemore Hospital he was found to be showing definite signs of meningitis (neck stiffness and lethargy). Dr Gilchrist had not noted these signs and I would again believe it likely that the signs may have developed in the time between these two consultations given that this is a disease which progresses rapidly. Lethargy and neck stiffness are fairly obvious signs which are not easily overlooked even if the examination is not specifically directed at excluding meningitis. The Middlemore Hospital Paediatric team had considerable difficulty in gaining venous access to commence treatment for Chance. Attempts were made by two experienced Registrars and the Consultant. Despite this, an intravenous line was still not able to be inserted by 2 hours after arrival at the hospital. Placement of intravenous lines can be difficult in young infants, especially when they are poorly perfused peripherally due to fever and sepsis. In practice we may halt attempts after 2 or 3 unsuccessful punctures if there is a reasonable alternative therapy available such as IM antibiotics and nasogastric fluids. In a case such as Chance's however, an intravenous line was an absolute necessity to provide appropriate antibiotic and fluid management of his condition. Under these circumstances the doctor(s) will persist in multiple attempts until successful. In my experience it is rare for several experienced Paediatric doctors to be unable to place an intravenous line under circumstances where it is absolutely necessary. The Paediatric doctors at Middlemore Hospital have the same training, experience, and skills as those working at Starship; the Registrars in fact rotate between the two hospitals during the year. For the best outcome in bacterial meningitis it is important to make the earliest possible diagnosis, commence antibiotic and supportive treatment immediately, and to monitor the child closely for signs of complications such as raised intracranial pressure. Oral antibiotics are not sufficient treatment for meningitis as the drugs do not reach a high enough concentration in the spinal fluid to kill the bacteria when given by this route. Intramuscular antibiotics may delay the progress of the disease (this has been shown for meningococcal meningitis but not for pneumococcal meningitis) but are not definitive therapy. Other treatment such as steroids and fluids must be also given by the intravenous route. Chance was in my opinion extremely unlucky. He developed a fairly rare and severe type of meningitis with signs which appear to have progressed rapidly over a few hours. Despite the best efforts of experienced (and from my knowledge of working with those doctors, highly skilled) Paediatric specialist staff a necessary intravenous line was not available for several hours. In my experience over a number of years in Emergency Paediatrics and a variety of conditions in which intravenous therapy is critically needed, it would certainly be less than 1% of cases in which we were unable gain venous access within less than 1 hour to start treatment. I do not believe that any of the difficulties was due to any failure or inappropriate action from any of the doctors involved. In particular I do not believe that this was a "delayed diagnosis" or that failure to refer to hospital earlier contributed to venous access problems or to the poor outcome. Had Chance been seen earlier at hospital he may well have been sent home in the absence of signs suggesting any diagnosis other than otitis media. Nor do I 10 believe that I would have managed the venous access difficulties differently than the Middlemore staff under the same circumstances. However the unavoidable delay in commencing definitive treatment for Chance's meningitis may well have contributed to a worse outcome in a disease which so frequently results in long term impairment." On the issue of medical error, the Review Officer held, particularly having regard to the evidence of Dr Aickin, that there had not been a failure by any health professional to observe a standard of care and skill that was to be expected and that a case for medical error had not been made out. Insofar as medical mishap was concerned, the Review Officer found that the medical evidence did not establish on the balance of probabilities that the adverse consequences were caused by treatment. She did not consider the ingredients of rarity or severity as it seems she relied on the acceptance by the first ruling of the MMAC that those two ingredients were present. Furthermore, she found that it had not been established on the balance that any delay in obtaining venous access caused the adverse consequence. The appellant filed a Notice of Appeal against the decision of the Review Officer but counsel for the appellant has confined the grounds of appeal to that of the finding by the Review Officer that medical mishap had not been established. Counsel accepts that there is no evidence of, or a basis for, a finding of negligence against any registered health professionals and therefore the provisions of section 5(7) of the Act, which seems to form a large part of the Review Officer's decision, are not applicable in the true context of this appeal and that the issue is whether or not there can be a finding of medical mishap as that expression is defined in section 5 of the Act. The Relevant Statutory Provisions of Section 5 are " (1) "Medical Misadventure" means personal injury resulting from medical error or medical mishap. 11 "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 the adverse consequence of the treatment is severe For the purposes of the definition of the term Medical Mishap, the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than one percent of cases where that treatment is given. For the adverse consequence to be severe it must result in death or (a) hospitalisation as in patient for more than 14 days or ( 6 ) Significant disability lasting for more than 28 days in total or ( c ) The person qualifying for an independence allowance under section 54 of the Act." Submissions were heard from counsel for the parties on 8 July 1998 and following that hearing the proceedings were adjourned to enable the Court to receive and consider advice from Dr Nicholson which had been sought by counsel for the respondent but which was not to hand as at that date of hearing. Mr Nicholson was asked for his opinion firstly, whether on the balance of probabilities the delay in treatment was causative of any greater impairment than would have been suffered had there been no delay. Secondly, whether the adverse consequences/impairment that the claimant suffered was rare. For the purposes of that opinion Dr Nicholson was provided with a copy of Dr Aickin's report of 9 June 1997. Dr Nicholson's response to that request dated 20 July 1998 advised: 12 "With regard to your first question, 'Was the delay in treatment causative of any greater impairment than would have been suffered had there been no delay.' I don't believe there was a delay in treatment. The only delay was in gaining of intravenous access. As is common practice in this situation, the appropriate antibiotic was given intramuscularly. Cefotaxime given by intramuscular injection has been shown to penetrate well into the CSF. It is my opinion that the appropriate antibiotic was given at an appropriate time and that the disability that arose from this infection related to the primary infection not to any delay in commencement of treatment. In reply to your second question 'Whether the adverse consequences/impairment which Chance Te Whare suffered were rare as defined by the ACC Act. It is my opinion that the disability suffered is not rare for this type of infection. Approximately 25% of children with pneumococcal meningitis leave hospital with neurological impairment. " On receipt of that advice counsel for the appellant sought to have certain further points clarified, particularly in the light of matters stated by Dr Aickin. Dr Nicholson responded by letter of 28 August 1998. That letter stated as follows: "Dr Aickin and I have a difference of opinion about this case. As I have stated in my previous correspondence, I do not believe there was a significant delay in starting appropriate treatment that would adversely affect the outcome. It is my opinion that the disability that Chance suffered is a result of the infection, not the difficulties we had in obtain in IV access. The difficulties we encountered would have at most delayed onset of treatment by one hour and given Ceftriaxone by intramuscular injection has been shown to achieve adequate levels within the cerebrospinal fluid to kill Streptococcus pneumoniae. We are here talking about one dose in the total impairment 13 course of seven days, as subsequent doses were given intravenously once he reached the Paediatric Intensive Care Unit. I do not believe that if we got the IV in soon after admission and administered antibiotics intravenously at that time the outcome would have been any different". It was the submission of counsel for the appellant that the appellant suffered personal injury by medical misadventure, being medical mishap, due to a delay in venous access which resulted in the appellant suffering adverse consequences of treatment properly given. Counsel submits that the appropriate treatment was antibiotics through an intravenous line and that it was the delay in achieving that which had the adverse consequence. Counsel relies on the opinion of Dr Aickin that there is a causal connection between the adverse consequence and the treatment given. She submits that neither Dr Aickin nor Dr Nicholson have been able to provide a conclusive answer on the question of rarity and that the Court should err on the side of the appellant. She submitted it was more likely than not that the treatment, being the difficulty in obtaining intravenous access, led to the adverse consequences and that outcome was rare. Mr Barnett, counsel for the respondent, submitted that the evidence does not establish on the balance that there was any adverse consequence of treatment, in particular the delay in gaining intravenous access, and that there is no causal connection between the mishap and the personal injury for which cover is sought. Counsel submitted that the opinion of Dr Aickin, that the unavoidable delay in commencing definitive treatment may well have contributed to a worse outcome in a disease which so frequently results in long term impairment, is speculative and falls short on establishing a causal association, on the balance of probabilities. Counsel submitted that there was no evidence upon which this Court could find the requirement of rarity being established. Counsel submitted that whilst it may have been established that it was rare that there be delay in excess of one hour in gaining venous access, that is a rare failure in the treatment procedure, not a rare adverse consequence. 14 DECISION The issue in this case calls for a consideration of whether the various elements of personal injury by medical misadventure, being medical mishap, have been established on the balance of probabilities. To get matters into perspective it must be remembered that the Act provides cover for personal injury by accident, and in this case by medical misadventure, that is the personal injury must be caused by the medical misadventure. Again in the context of this appeal, the type of medical misadventure alleged is that of medical mishap. It is contended that in the course of treatment for pneumococcal meningitis the appellant suffered personal injury from the treatment he was receiving and that the result of that treatment was both rare and severe. Thus it is when it is not contended that there is any fault or negligence on the part of the registered health professional providing the treatment, the injury that the treatment causes needs to be quite out of the ordinary expected range of consequences. The key elements to establishing such a claim in those circumstances is firstly, a causal connection between treatment and the personal injury and then, the determining of whether that personal injury (i.e. the adverse consequence) is both rare and severe. There can be no question that the appellant was receiving treatment, within the commonly accepted meaning of that word, from the moment he was admitted to Middlemore Hospital at 1451 hours on 24 September 1995. In particular, as of 1525 hours on that day when an experienced Paediatric Registrar observed signs of meningitis, it could be said that he was requiring treatment for that disease. From that time on the appellant could be regarded as being in receipt of treatment or requiring treatment for the meningitis that had been diagnosed. It is necessary to make that finding because the statutory definition of medical mishap provides that it is the treatment which must be causative of the personal injury. 15 To make the point clear, this is not a case where it can be contended that the appellant caught or acquired the meningococcal bacteria during the course of treatment. He had already contracted pneumococcal meningitis and thereby was liable to suffer all the terrible harm that that disease can cause. The question therefore needs to be asked, did the treatment, or the delay in providing the same, cause greater damage (i.e. injury) than would have been the case if the intravenous antibiotics had been able to be administered when it had been first attempted at Middlemore Hospital rather than some two hours later after he had been transferred to Starship Hospital. It was Dr Aickin's opinion that for the best outcome in bacterial meningitis it was important to make the earliest possible diagnosis and commence antibiotic and supportive treatment. He stated that the unavoidable delay in commencing the definitive treatment may well have contributed to a worse outcome in a disease which so frequently results in long term impairment. Dr Nicholson in his advice said firstly "It is my opinion that the appropriate antibiotic was given at an appropriate time and that the disability that arose from this infection related to the primary infection not to any delay in commencement of treatment" and then secondly "it is my opinion that the disability that Chance suffered is a result of the infection, not the difficulties we had in obtaining IV access. The difficulties we encountered would have at most delayed onset of treatment by one hour in giving Ceftriaxone by intramuscular injection has been shown to achieve adequate levels within the cerebrospinal fluid to kill Streptococcus pneumoniae. We are here talking about one dose in the in the total treatment course of seven days, as subsequent doses were given intravenously once he reached the Paediatric Intensive Care Unit. I do not believe that if we got the IV in soon after admission and administered antibiotics intravenously at that time the outcome would have been any different." 16 It is to be noted that Dr Nicholson is stating that one dose of intravenously administered antibiotic was intended to be administered as soon as possible. That it could not because of difficulty in obtaining IV access meant that the appropriate antibiotic had to be administered by intramuscular injection. He believed that such an injection achieved adequate levels within the cerebrospinal fluid to kill Streptococcus pneumoniae. In contrast Dr Aickin was of the opinion that intramuscular antibiotics would only delay the progress of meningococcal meningitis but not pneumococcal meningitis, and I infer from that he would contend that the intramuscular injection which was carried would not have been in anyway effective. In the final analysis two eminent paediatricians have proffered two carefully couched but different opinions. Once says unavoidable delay... may well have contributed to a worse outcome. The other says I do not believe there was a delay... that would adversely affect the outcome. "I do not believe... the outcome would have been any different". It must be remember that pneumococcal meningitis is a severe disease and in the words of Dr Aickin, it is not uncommon for children to be left with permanent disability despite optimal diagnosis and medical therapy. In the light of that, I find that it would require a far more definite and positive statement of expert opinion for this Court to be able to find that on balance this claimant's resulting severe injuries were as severe as they are only because of the treatment that he received. It is to be remembered that I am using the word treatment there in the widest context as I have found and it includes the inability to provide the IV access at the optimal opportunity. In the event that it be found that I was wrong to make the finding that I have on the question of causation I turn to consider the other essential ingredients that require to be established for a successful claim for medical mishap, namely rarity and severity. I note that there is no dispute that this appellant has suffered severe injury and that if the causative factor, which I have found to be absent, is found to be present, then the adverse consequences of the treatment of this appellant were severe. 17 Insofar as determining rarity, it is to be noted that it is the adverse consequence which must be rare and would not occur in more than 1% of cases where the particular treatment is given. Dr Aickin advised that in his experience it would be less than 1% of cases in which the treating physician would be unable to gain venous access within less than one hour and enable treatment to start. By this he is saying that it is very rare that an experienced paediatric doctor would be unable to get his treatment procedure in operation with a delay in more than an hour. However, the rarity of failure in that treatment procedure is not what is required under the Act. Rather it is the rarity of the adverse consequence, that is, the resulting injury. Contrary to the resulting injury being rare, the medical evidence is that the probability of severe effects is very high. Both expert Paediatricians were in agreement on that point. Furthermore, I find that if, contrary to what I have found, there is a causative link between the treatment and the adverse consequence, then it must follow that rarity could never be established because it is clearly established that without treatment pneumococcal meningitis is a severe disease with significant mortality. That is, it is, a disease where severe disability or even death is a common outcome. Thus, I find that the adverse consequence which did follow and which I have found was not causally connected to the treatment, but were it to be so, then it could never be said to be rare as it is indeed the opposite. It is the most likely consequence of a delay in treatment. Accordingly then, I find that there is no evidence to support the contention that the likelihood of the adverse consequence of the treatment occurring is rare. Therefore an essential ingredient of the definition of medical mishap cannot be made out and as such, a finding of medical misadventure by medical mishap cannot be made. 18 For the foregoing reasons I find that the decision of the Review Officer was correct albeit for different (and probably incorrect) reasons. The decision of the Corporation is therefore confirmed and this appeal is dismissed. DATED at WELLINGTON this 215 day of December 1998. M J Beattie District Court Judge Chance.doc(gm)