Bigwood v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 288/2003 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN CHRISTINE BIGWOOD of Paraparaumu Beach Appellant (Appeal No. AI 395/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at HAMILTON on 5 November 2003 APPEARANCES/COUNSEL A. de Jonge for appellant J.R. Sumner for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issues that arise in this appeal are: https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/288- 2003.doc AE [i] Whether the Review Officer was correct in finding that on the facts of this particular case the Benzodiazepam dependency did not constitute physical injuries within the meaning of the Act. This finding being in direct conflict to the opinion provided by a neurologist, Dr Wallis, that the Benzodiazepam dependency and addiction was a result of physical injury that the appellant had suffered as a result of taking drugs. [ii] Whether the Review Officer was correct in finding that the review failed because of an alleged lack of informed consent, because the appellant was well aware of the addictive nature of Benzodiazepam drugs by 1981. [iii] There is an issue that is alive as to whether or not in the circumstances of this case there was medical error by the prescribing doctors concerned. The Course of the Proceedings [2] In her submissions before me, Mrs de Jonge submitted: “Christine Marie Bigwood was prescribed Benzodiazepines over a long period, without informed consent. After she came off Valium, Christine went to a doctor a year later. The second time she was prescribed Lorazepam. She had told that doctor that she had been addicted to Valium, and he said: ‘he would give her something completely different, that was nothing like Valium and she would not get addicted to that.’ That was Lorazepam. Her addiction became worse the second time around. Christine took the doctor’s word for it. Christine knows now that Lorazepam is also a Benzodiazepam. It was not her fault that she received false misleading information from her medical practitioner.” [3] At the hearing in front of me, Mr Sumner, counsel for the respondent, fairly and properly conceded that in the face of the medical report from Dr Wallis there could be no issue that there was a personal injury in this case caused by a long term use of Benzodiazepam drugs. [4] In that connection, the respondent did not seek to uphold the decision of the reviewer where she said: “With respect to Mr Wallis, I find his opinion is incorrect. It is contrary to the position the Court’s have taken on dependency and addiction in terms of an injury 288-2003 2 within the meaning of the Act. This finding is illustrated in the following case authorities … However, in considering those claimed injuries, I find I cannot make a ruling that those conditions constitute physical injury. There is no evidence before me of how the brain has been physically injured and on the face of it, muscle weakness, poor co-ordination and slowing of cognitive functions are not physical injuries. Before I could find that any of those conditions constitute physical injuries within the meaning of the Act I would need clear medical evidence to that effect and the fact is that none has been presented. The decision from the District Court clearly establish that drug dependency is prima facie not a physical injury. Whilst I accept that the state of dependency can arise from taking Benzodiazepine drugs and that a withdrawal from dependency can bring problems of a mental nature, there is no evidence before me to suggest any physical injury in terms of the Act.” The Review Hearing [5] The other live issues in this case were the issues of informed consent and medical error. It is apparent that the review hearing appears to have been carried out between Mrs Bigwood and her representative, Mrs A de Jonge, and Miss T. Scaler for the Accident Compensation by teleconference. [6] In my opinion the issue of informed consent, to a certain extent, would hinge on credibility findings, and I do not think that a teleconference review is the ideal vehicle to determine that issue. [7] At the hearing, I called for a copy of the transcript, which I now have, it being accepted by both parties that I would read the transcript to see if any of the problems that face me could be overcome by a reading of this transcript. [8] It is apparent that at the review hearing, the issue of whether or not there had been a personal injury assumed importance. [9] The Review Officer dealt with the issue of informed consent. She said: “I have carefully read the evidence from Dr Leigh and examined his available contemporaneous medical notes. I also note Mrs Bigwood’s evidence that Dr Leigh was the only one who answered her questions and told her the drugs were addictive. Based on the facts as stated, I find that Mrs Bigwood was well aware of the addictive nature of benzodiazepine drugs by 1981, therefore the allegation of lack of informed consent must fail.” [10] In support of this reasoning, the Review Officer said: “In my view, benzodiazepine addiction, of this sort, cannot be considered a medical error, as there is no evidence that Mrs Bigwood was kept in the dark about the 288-2003 3 addicting potential of benzodiazepine drugs. This view is supported by the fact that in 1991, Liz Painter, psychologist, described Mrs Bigwood as having weaned herself off valium by approximately 1980/81. But then the evidence shows that she resumed benzodiazepine usage in the form of lorazepam perhaps two years later (in 1982/83). Dr Painter describes this use as being initially just at night with occasionally one during the day. But six months prior to Mrs Bigwood’s consultation with Dr Painter on 20 February 1991, Mrs Bigwood had increased her intake of lorazepam. At that time, the facts indicate that she was already well aware of the addictive nature of these drugs. Mrs Bigwood came under the care of Dr Leigh in 1993. She brought with her a history of well-established benzodiazepine dependency. Dr Leigh made an effort to wean Mrs Bigwood off benzodiazepine. However, he described his own attempts in this regard as ‘unsuccessful and not helped by a destructive and co-dependent domestic relationship.’ I have carefully read the evidence from Dr Leigh and examined his available contemporaneous medical notes. I also note Mrs Bigwood’s evidence that Dr Leigh was the only one who answered her questions and told her that the drugs were addictive.” [11] It does not seem that the issue of medical error was canvassed in any depth, and it appears to me that the issue of informed consent requires a careful assessment of the evidence of the appellant, and probably a questioning of the appellant concerning the future inferences found by the Review Officer. Essentially, the issues of informed consent will involve mixed findings of credibility and inference. Conclusion [12] At the hearing of this appeal I expressed a concern that a substantial part of the respondent’s case as to the issue of personal injury having regard to the medical report of Dr Wallis could be sustained. As I have indicated very properly counsel for the respondent did not seek to argue that issue, and accepted that this was indeed the situation. [13] In my view, the issue of informed consent requires findings of primary fact, and I would have thought the giving of evidence in front of the Review Officer, which should be carefully tested against the various propositions advanced by the respondent. [14] In view of the history of this file, I have considered whether I could deal with this matter myself, but I am of the view the issues of informed consent and medical error should be determined at the review level, as this Court is primarily an appellate one and not that of a trier of facts. 288-2003 4 [15] I might say that I have formed an uneasy opinion that in view of the Review Officer’s finding there was no personal injury caused by the taking of the drugs in this case, the making of the other findings may well have clouded her reasoning in respect to the two other issues that I think should be further investigated on a rehearing of the review application. [16] I make no comment one way or the other as to what the findings in regard to the issues of informed consent or medical error should be. Decision [17] I accordingly allow this appeal, and direct that there should be a rehearing at a further review hearing before another Review Officer on the issues of informed consent and medical error. I allow the appellant the sum of $400 by way of costs and disbursements. [18] In taking this course there is no reflection on the Review Officer DATED at WELLINGTON this 18th day of November 2003 (J. Cadenhead) District Court Judge 288-2003 5