CB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 4 / 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 CHERYLE DALRENE BRIDER and CASEY ERU TE IWI KATEA HUGHES of Rotorua Appellant (Appeal Nos. DCA 231/97 and DCA 281/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of November 1997 APPEARANCES J Miller for appellants A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellants are entitled to cover in respect of their claims that they contracted HIV as a consequence of medical misadventure. The facts which give rise to this appeal are that Ms Brider's husband, Mr Hughes was infected with HIV as a result of a blood transfusion required for injuries he suffered in a motor cycle accident on 29 September 1984. Mr Hughes' claim was accepted for cover under the 1992 Act on the grounds that he suffered medical misadventure. Ms Brider's son, Master Hughes was found to be infected with HIV at birth. The 2 appellants lodged a claim for cover and entitlement with the respondent on 29 April 1996 when it was found that tests disclosed positive HIV. The respondent declined the applications on 11 February 1997 against which decision the appellants applied for reviews which were also unsuccessful. It is against those decisions which the appellants now appeal. Mr Miller submitted an opinion prepared by Ms Iris Reuvecamp, an LLB Honours student to which he provided additional submissions. In brief his submissions were: 1. That when Parliament promulgated the 1992 Act it included in the definition of medical misadventure the words "medical error". That those words had come to attain a special meaning having been interpreted by the Courts over a number of years in respect of medical misadventure claims arising under the Accident Compensation Act 1982. That in particular, in the case of the Estate of N (1995) 1 BACK 421, it was held that Mr N Had been infected by HIV as a result of sexual intercourse with his wife whom the respondent accepted had suffered a medical misadventure by reason that she had been given contaminated blood during the course of an operation. By application of the principles enunciated in Bridgeman v ACC (1993) NZAR 199 the High Court concluded that Mr N was entitled to cover under the Act as "the deceased was as much as a victim of the medical misadventure as is his late wife." That as the 1992 Act includes those same words "medical error" Parliament must have intended that they would carry the same meaning. 2. That a consideration of the 1992 Act indicates in various sections that reference is made to "that person" or "the person suffering it" or "an accident to the person concerned" and various other similar references but section 5 does not include clear words to expressly exclude a result the same as that in the Estate of N case 3. That in addition, the appellants are entitled to cover under section 8(2)(d) of the Act in that they have suffered personal injury which "is a consequence of treatment for personal injury covered by this Act". Mr Barnett submitted: 1. That while the Court in the Estate of N case held that the third party there was entitled to cover that was because the 1982 Act did not include limiting words in the definition of medical misadventure which had been considered in numerous appeal cases. That in refusing an application for leave to appeal the decision in the Estate of N Justice Doogue noted: "...In the 1982 Act the term "medical misadventure" is not defined. It comes within the definition of "personal injury by accident". . In the 1992 Act the term "medical misadventure" is defined as are the terms "medical error" and "medical mishap". These terms are defined in s.5 of the 1992 Act, which contains no fewer than 10 separate subsections, several of 3 which appear to directly relate medical misadventure to doctor/patient or hospital/patient relationships." Justice Doogue then went on to say: "The judgment under appeal dealt with the position under the 1982 Act in terms of the cases which set out the guidelines for determining whether medical misadventure or medical error arose. Those cases cannot of their very nature apply directly under the 1992 Act when it contains an entirely new and elaborate system of approaching the terms "medical misadventure" and "medical error"." 2. That section 5 of the 1992 Act provides a definition of medical misadventure in contrast to the non-exhaustive definition of personal injury by accident contained in the 1982 Act which included "medical, surgical, dental or first aid misadventure". That section 4 limits personal injury to the person undergoing the medical treatment which appears to have been in contemplation by Justice Doogue in the decision to decline the respondent leave to appeal the decision in the Estate of N. 3. That the approach of the Court in the Estate of N seems to have been that for a third party claimant to succeed that claimant had to establish that he or she had suffered his or her own medical misadventure because Justice Doogue said: "There are no limiting words relating to the phrase limiting to the person undergoing treatment. We fail to see why an individual suffering injury by accident, which for this purpose the Respondent accepts would be a disease or infection such as that suffered by the deceased, should not come within the provisions so long as the disease or infection is a consequence of medical misadventure within the propositions [in Bridgeman] set out above." 4. That a consideration of section 5 makes it apparent that the section did not intend to extend to third party claims 5 . That the submission in the Reuvecamp paper that the word "patient" which is not defined in the 1992 Act should be interpreted to mean the person who suffers the injury irrespective of any treatment being received is a contrived attempt to overcome the difficulties in respect of the person receiving treatment and ignores the natural and ordinary meaning of "patient". 6 . That while Mr Miller raised the question of the appellants being entitled to cover under section 8(2)(d) this was the first time that that issue had been raised and had not been the subject of a decision by either the respondent or the Review Officer. The issue for the Court is whether the appellants are entitled to cover under the 1992 Act for personal injury as a consequence of a medical misadventure suffered by Mr Hughes, they not having undergone any medical treatment themselves. The issue is to be decided under the provisions of section 5 of the 1992 Act. So far as the appeal is concerned section 5 states: "5. Definition of "medical misadventure"---(1) For the purposes of this Act,- "Medical error" means 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 desired results are not achieved or because subsequent events show that different decisions might have produced better results: "Medical misadventure" means personal injury resulting from medical error or medical mishap: "Medical mishap" means an adverse consequence of treatment byl, 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. (2) 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 1 percent of cases where that treatment is given. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is to rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured-- (a) Was known to that person; or (b) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be, -- prior to the treatment. 4) For the purposes of the definition of the term "medical mishap", the adverse consequences of treatment are severe only if they result in death or-- (a) Hospitalisation as an inpatient for more than 14 days; or (b) Significant disability lasting for more than 28 days in total; or (c) The person qualifying for an independence allowance under section 54 of this Act. (5) Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless [medical error or medical mishap] occurred at the time of the procedures." It is clear that while the appellants claim some support by the fact that the words 'medical error" are included in the definition of medical misadventure and have been accepted in the case of the Estate of N as entitling that appellant to cover under the 1982 Act as a third party to the medical misadventure which occurred to his wife, the Court made it clear in its decision in respect of the application for leave to appeal against its decision that it had applied the principles enunciated in Bridgeman which were applicable to the cases of medical misadventure arising under the 1982 Act but not under the 1992 Act which had its own specific definition. 5 Examination of section 5 appears to me to emphasise that it applies to the person who specifically undergoes the treatment and who thereafter suffers an adverse consequence of that treatment. If it is said that these appellants have suffered an outcome which is recognised as rare then it must also be established that at the time of treatment the possible outcome was known to that person. I agree with Mr Barnett's submission that the section cannot possibly have contemplated that the reference in section 5(3) to "the particular person injured" could possibly include a third party. That proposal raises the question of how would the third party have any knowledge of possible risk arising out of treatment to the patient who received the medical treatment. The whole tenor of section 5 relates to medical treatment to the particular person to whom the medical treatment is given and it is difficult to accept from the particular nature of the wording of the section that it is intended to extend beyond the person who receives the treatment. This proposition is further demonstrated by reference to subsection 5 which refers to the abnormal reaction of a patient or later outcome arising from treatment procedures unless medical error or medical mishap occurred at the time of the procedure. Those words could not be said to contemplate the inclusion of a third party as having suffered the abnormal reaction or later complications because the third party would not have been involved at the time of the procedure. I agree with Mr Barnett's submission that the intention of the 1992 Act was to provide a specific definition as to what constitutes medical misadventure for the purpose of that Act and it is evident from the wording of section 5 that it is specifically directed at the particular person who is the subject of the medical treatment. I do not consider that it is intended to include third parties and this also appears to have been in the mind of Justice Doogue in giving the decision on the respondent's application for leave to appeal in the decision of Estate of N. Mr Miller raised the question of cover under section 8(2)(d) but as this was not the subject of a decision by either the respondent or the Review Officer, the Court has no jurisdiction to deal with it. The appeal is dismissed. DATED at WELLINGTON this 27 day of January 1998 A W Middleton District Court Judge dc231-97.doc and dc281-97.doc (nr)