Stanley-Tanirau v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 96/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN CHRISTINA STANLEY-TANIRAU (AI 336/01) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at Huntly on 6 November 2002 APPEARANCES Mrs A deJonge advocate for appellant Miss L J Lydiard, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] This appeal came on for hearing before me on 6 November 2002. The appeal concerned the respondent’s decision to decline cover for the appellant for personal injury claimed to have been caused by medical misadventure. After hearing submissions on behalf of the appellant from Mrs deJonge, and on behalf of the respondent from Miss Lydiard, I adjourned the appeal as being part-heard and granted leave to Mrs deJonge to obtain and present a report from the Waikato Hospital Cardiology Department which she had requested the Court entitle her to do. Both parties were given the opportunity of making further submissions as and when that Cardiology report was produced. [2] That report has now been produced and further submissions received from parties and I will refer later in this decision to that report and its place in this appeal. 336 01 (jed).doc 2 [3] The background facts relevant to the issue in this appeal are not in dispute and can be stated as follows: • On 3 August 2000 the appellant lodged a claim for cover with the respondent, seeking cover for personal injury caused by medical misadventure, the date of the injury given being 24 February 1993. • The injury claimed was a stroke. The appellant contended that this injury had been caused by taking the contraceptive pill Mercilon prescribed for her by her GP, Dr Travaglia. • It was the appellant’s contention that her GP ought to have known the risk of clotting associated with Mercilon and of other factors which would make the appellant a high risk candidate for a stroke. • Dr Travaglia had prescribed Mercilon for the appellant at her request in July 1991. She stopped taking that pill six months later and shortly after became pregnant. • After the delivery of her child the appellant again requested to be prescribed the contraceptive pill Mercilon and she resumed taking that pill in early January 1993. • On 12 February 1993 the appellant attended on her GP complaining of visual disturbance and headaches behind her eyes. Her GP stopped the Mercilon and replaced it with Noriday a mini pill which has no thrombotic propensity. • On 24 February 1993, whilst travelling in a car from Taihape to Palmerston North, the appellant suffered a cerebrovascular accident (CVA), commonly known as a stroke. • The appellant was admitted to Palmerston North Hospital where she remained until 4 March 1993. • In October 1993 the appellant was admitted to Waikato Hospital because of continuing headaches and was there placed under the care of Dr M K Singh, Neurologist. It was whilst in hospital at that time that she was determined as having a heart defect. • The appellant is disabled as a consequence of her stroke, it affecting her right side. 336 01 (jed).doc 3 • In August 2000 the appellant lodged a claim for cover for the injury suffered by her, being a stroke, and the claim was referred to the respondent’s Medical Misadventure Unit. • The MMU sought reports from Dr Travaglia, Dr Singh and also independent reports from Professor Carl Burgess and Dr D Baird. • As a consequence of the advice provided, the respondent advised the appellant by decision dated 2 May 2001 that her claim for cover was declined on the grounds that no medical error, within the meaning of the Act, had been established. • The appellant sought a review of that decision and a review hearing took place on 21 June 2001. In a decision dated 17 July 2001, the Reviewer found that it could not be determined that the Mercilon was the cause of her stroke, but rather the likely cause was due to the fact that the appellant was a smoker and had a cardiac defect. • The Reviewer went on to find that even if causation could be established there was insufficient evidence to establish medical error on the part of Dr Travaglia. The Reviewer therefore confirmed the respondent’s decision to decline cover. [4] As earlier noted, Mrs deJonge the appellant’s advocate, sought the opportunity to obtain a further cardiologist report of the appellant’s heart condition and a report has now been produced to the Court entitled “Health Waikato Echocardiogram Report” (Preliminary). The report indicates that the appellant was examined on 27 November 2002 and the one-page document is full of measurements and technical findings to be expected of an echocardiogram report. The Court has not been provided with any interpretation of this document from any specialist although that has not prevented Mrs deJonge from herself submitting that the report indicates that the appellant does not have a heart deformity. [5] The Court is certainly not in a position to interpret this report, which is unsigned and which is described as preliminary, and I therefore find that it can take the matter no further than the state of the evidence that pertained at the date of the hearing of this appeal. 336 01 (jed).doc 4 [6] The evidence which was presented to the Court consisted of a report from the appellant’s GP, a report from Dr Singh, the advice of Professor Burgess and the opinion of Dr Baird. Those reports are now set out as follows: (1) Report from Dr M G Travaglia to MMU dated 6 September 2000: Dr Travaglia was the appellant’s GP at the relevant time and following the lodging of her claim in which she alleged medical error on the part of Dr Travaglia in his prescription of Mercilon, he was asked to provide a report, the main points of which were as follows: • In July 1991 he prescribed the oral contraceptive Mercilon for the appellant at her request. She stopped taking this pill six months later when she developed thrush. • Shortly after she became pregnant and six weeks after delivery of her child she again requested to be prescribed Mercilon. • The appellant was not hypertensive, not a diabetic and did not suffer from classical migraine and had stopped smoking. She was warned of symptoms of leg clots. • On 12 February 1993 she attended complaining of visual disturbance and headache. He considered the pill could be a cause and therefore stopped it. • Her CVA was suffered 12 days after she had ceased taking Mercilon. (2) Report from Dr V K Singh, Neurologist to MMU dated 31 August 2000: Dr Singh is a Neurologist at Waikato Hospital and he related the circumstances of the appellant coming under his care in October 1993 and what he then noted. Dr Singh stated as follows: “Her GP, Dr Travaglia, made a referral on 22-9-93 because Ms Stanley was suffering from headaches and wondered if she was at risk of having a further stroke. She was admitted under my care on 4-10-93. It was recorded that she had sustained a stroke on 24-2-93 at a time when she was a smoker, smoking 10 to 20 cigarettes a day and had also been on the oral contraceptive pill. A previous history of migraines and TB was 336 01 (jed).doc 5 noted. It was also recorded that the date before she had the stroke she had some visual disturbance and headache similar to her migraine but not on the day of the stroke. Investigations were repeated in Hamilton to exclude any other etiology for her stroke. Scan of the carotid arteries revealed no abnormality but then a cardiac scan revealed (echocardiogram) that there was an obvious inter atrial septal aneurysm and right to left flow across a septal defect. On the advice of the cardiologists Ms Stanley was anticoagulated with Warfarin and sent home. It was therefore assumed that although Ms Stanley was on the pill at the time of the stroke the Waikato cardiologists felt that the cardiac condition could well have contributed her to her stroke. Ms Stanley was also under the care of Dr Min Loke Wong, who took over the care from my inpatient service for ongoing rehabilitation. She was referred back to Waikato neurology and saw Dr Timmings, regarding concerns about her memory and Dr Timmings reports that she stopped taking Warfarin and was taking Aspirin at the time she was assessed on 21-9-98. In conclusion Ms Stanley did suffer from a stroke of sudden onset at the age of 43. I consider that she would have been at a high risk of a stroke because of a combination of the contraceptive pill and smoking, a well known hazard, but also the fact that the Waikato cardiology department found her to have a cardiac condition as well would also have made her prone to a stroke. To sum up Ms Stanley at the time of the stroke had 3 important risk factors. Firstly oral contraceptive pill, secondly smoking and thirdly a cardiac condition. All 3 of them by their own account have the potential of causing a stroke. I do not think it would be possible to blame one agent for the condition. Strokes usually result from a combination of risk factors and such a combination puts the subject at a very high risk of stroke”. (3) Report from Professor Carl Burgess, Neurologist to MMU dated 21 December 2000: “This claim relates to the development of a stroke following the use of an oral contraceptive. There is a letter from her general practitioner, Dr Travaglia. In his letter he noted that he was treating this patient at the time that she developed her stroke. She requested the use of an oral contraceptive in July 1991 and was prescribed Mercilon, which is a third generation oral contraceptive. She used this for approximately six months and then she became pregnant after it was stopped. She was once again prescribed Mercilon after the pregnancy. On 12 February 1993 she attended complaining of some visual disturbance and a headache behind her eyes. Her general practitioner thought this could be the pill, and the Mercilon was stopped and replaced with Noriday, which is a progestogen only tablet. She developed a stroke 12 days later, which affected the right side of her body. She was at that time admitted to Palmerston North Hospital and stayed there for a period of 8 days. However, she has 336 01 (jed).doc 6 remained with a right hemiparesis which has resulted in a pronounced limp and her right hand has little movement. She also has some impairment in her ability to concentrate. She was investigated and found to have a patent foramen ovale and it was felt that this may be the source of arterial emboli. The question therefore relates to whether the original pill was the cause of her problems. I can find no evidence for medical error in this particular case. She had been warned about symptoms of leg clots and the development of severe headaches with the third generation tablet. This was stopped some 12 days before she developed her stroke. As far as I am aware in this particular case, although it was felt that the foramen ovale may have been the source of arterial embili, there is no evidence that she in fact did have a clot in the venous side of the circulation or arterial side of the circulation. Progestogen only pills do not have a risk of stroke or thromboembolic disease. It would be highly unusual for someone who had stopped taking the contraceptive tablet to develop thrombosis some 12 days after stopping the tablet. My opinion is that it is unfortunate that this patient had developed a stroke and has obviously been left with disability; however, it is much more likely that this stroke was not related to her pill but more probably related to her patent foramen ovale. Under such circumstances I believe that this claim should be declined.” (4) Report from Dr D Baird, Neurologist to MMU dated 3 December 2000: “Dr Travaglia states in his letter that Ms Stanley-Tanirau had ceased smoking when he first prescribed her Mercilon following her restarting this post-partum. Smoking is a well known contra-indiction to prescribing the combined OCP in a woman over forty, so it would be reasonable to assume that his checking of her smoking behaviour would have been as he suggested. Perhaps his clinical files could be requested to ascertain this. At the time of his prescribing Mercilon to the claimant the increased risk of clotting conditions associated with third generation OCPs was not known to GPs in this country. The complainant’s cardiac defect was also unknown to Dr Travaglia, and there was no grounds for him to suspect its existence. In answer to your specific questions: There is no incontravertible evidence that the claimant suffered physical injury as a result of medical treatment. In fact I am uncertain as to the clotting effects of the OCP twelve days following it being discontinued. It may well be worthwhile consulting a pharmacologist to tell you whether it is possible for its effects to continue this long following its last administration. This would establish whether a causal link was even possible. Given the information that has been supplied to us I think that it was appropriate for Dr Travaglia to prescribe the OCP for Ms Stanley-Tanirau. There is no apparent issue of medical error in this case”. 336 01 (jed).doc 7 DECISION [7] It is the appellant’s contention, as submitted by her advocate, that Dr Travaglia failed to observe the standard of care reasonably to be expected in the circumstances when he prescribed Mercilon for her and when he ought to have known the risk of clotting associated with that pill and of the fact of the appellant’s cardiac defect. The appellant contends that Dr Travaglia ought to have been aware that she was a person with high risk factors for a stroke. [8] Having considered the medical evidence which have been presented in this case, I find that the evidence is wholly against any finding of medical error on the part of Dr Travaglia. Whilst the appellant’s advocate was critical of the manner in which he kept records, I find that his records clearly indicate that at the time he prescribed Mercilon for the appellant he had advised her of the known risks of clotting associated with this pill and he noted the fact that she was no longer a smoker. Furthermore Dr Travaglia had satisfied himself that the appellant was not a risk candidate when he ascertained that she was not hypertensive, not a diabetic and did not suffer from classical migraines. Having made those enquiries I am satisfied that the prescribing of Mercilon was appropriate for this appellant and wholly in accord with proper medical practice. [9] Dr Travaglia was not aware of the appellant’s heart condition and certainly there has been no medical evidence presented which would indicate that there were circumstances which ought to have indicated to him that such condition existed. In the circumstances there is just simply no basis for any contention of medical error on the part of Dr Travaglia. He did of course cease her prescription immediately he became aware that it was causing side effects. [10] I have made the finding of no medical error as a first stage of this decision as such an allegation goes to the very heart of the professional expertise of the medical practitioner against whom the allegation is made. Having found as I have that no error was committed by Dr Travaglia, I further find that the appellant’s claim for cover could not succeed in any event as there is no evidence that the taking of Mercilon, was causative of the personal injury for which the appellant seeks cover. 336 01 (jed).doc 8 [11] The evidence from Dr Singh and Professor Burgess make it clear that Mercilon was not likely to have been the cause of the appellant's stroke, Professor Burgess noting that it would be highly unusual for someone who had stopped taking Mercilon 12 days earlier to have developed a thrombosis as a consequence of that earlier taking. Dr Singh was under the impression that the appellant was taking Mercilon at the time of her stroke yet he still identified other likely causes. [12] The evidence makes it clear that the more likely causes of the appellant’s stroke were her heart defect and of the fact that she had been a heavy smoker and that for these reasons she was in a higher risk category. [13] The appellant has not produced any evidence which would counter the evidence received from Dr Singh and Professor Burgess, and as I have already noted, the echocardiogram report which was produced by the appellant’s advocate does not assist and certainly cannot be taken as evidence which would dispel the clear evidence of Dr Singh and Professor Burgess. [14] Accordingly therefore for the reason that there is no finding of medical error nor any causative link between any alleged medical error and the injury for which cover is sought, the appellant’s claim for cover must fail and the respondent’s decision to that effect is hereby confirmed. [15] This appeal is dismissed. DATED at AUCKLAND this 26th day of May 2003 M J Beattie District Court Judge 336 01 (jed).doc