Heywood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 127 / 45 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19 95 0125 BETWEEN CHRISTOPHER JOHN HEYWOOD of Rotorua Appellant (Appeal No. DCA 120/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of September 1995 APPEARANCES A R Rowlett advocate for appellant P Zumbach for respondent DECISION OF JUDGE A W MIDDLETON By consent Mr Rowlett submitted three statutory declarations from persons close to the appellant which confirm that in their opinion he suffered a noticeable disfigurement by way of facial palsy following myringoplasty in August 1994. The issue in the appeal is the decision of the respondent which declined a claim for medical misadventure in relation to the onset of post operative facial damage and infection which occurred on 20 June 1994. The appellant had originally made a claim for medical misadventure in August 1993 arising out of the fact that he had had grommets in his ears for some 12 years 2 which had caused holes in the ear drums which his doctor diagnosed as "myringoplasty right ear". The respondent declined that application and a review of that decision was unfavourable. The appellant does not wish to proceed with an appeal against that issue and the appeal is in relation only to a medical misadventure arising on 20 June 1994. The appellant lodged his claim on 23 June 1994 as a result of which the respondent obtained a report from Mr Wong Toi, an Ear, Nose and Throat Surgeon who had performed post auricular myringoplasty on 13 June 1994. His report of 15 July 1994 states: "Mr Heywood is a patient of mine who was referred by his GP, Or Chris Morgan, because of problems with his ears. He was referred because of intermittent pain and discharge from his ears. There has also been a hearing loss in his right ear. He had grommets inserted as a child. On my initial examination on 7 April 1994 he had a large anteomarginal perforation in his right drum. There was a small perforation in his left ear drum. He had a mild conductive hearing loss because of the right sided perforation. I placed his name on the waiting list for surgical repair of his perforated ear drum. On 13 June 1994 under a general anaesthetic I performed a post auricular myringoplasty. This was an uncomplicated procedure and he did well postoperatively whilst in hospital. I discharged him on the first postoperative day with a follow up appointment for three weeks later. Please find enclosed a copy of my operation note. I saw him acutely on the eighth postoperative day because of a right facial palsy. He had no pain or discharge from his ear at that time. The palsy was partial. I thought that the most likely cause for his partial facial palsy was either a low grade inflammatory process in the middle ear, secondary to either infection or from an inflammatory response secondary to absorbable Gelfoam used during the operation. I treated him with antibiotics and when reviewed two weeks later his face had significantly improved. There was only minimal weakness of the branches of the facial nerve to his mouth and nose. I also removed the packing from his ear and this showed that the graft was intact. I have arranged to review him in approximately two more months time. A review of the hospital notes showed that on the 17 August 1982 he underwent the insertion of grommets by Mr Spencer. He was seen postoperatively on three occasions (27 October 1982, 15 December 1982 and 9 February 1983), this was by Dr Epp, Medical Officer of Special Scale, at that time. The clinical recorder on 9 February 1983 said that both grommets had extruded at that time, there were no problems and that he was discharged back to the care of his General Practitioner. I would assume that this implies there was no residual perforation following the insertion of grommets. I do not know what type of grommets were used but a perforation following the insertion of grommets is a recognised complication. Perforation rates vary 3 depending on the type of grommet used but range from between 1% to 30%. Most studies the perforation rate is between a few percent and 5%. The development of facial palsy following myringoplasty is a less common occurrence and as there was no problem until day 7 postoperatively, I would conclude that the most likely cause is some inflammatory process, affecting an uncovered facial nerve as it course through the middle ear. In this particular case he has gone onto an almost total recovery in the early phase and I suspect any long time disability would be minimal. He has not suffered any adverse consequences of treatment by virtue of prolonged hospitalisation or significant disability." On 11 July 1994 Mr Wong Toi reported to the appellant's GP, Dr Morgan: "This man's graft is intact. His facial paresis has almost completely resolved. I am to see him again in about three months with a check autogram." The respondent submitted details to its Medical Misadventure Advisory Committee for consideration and its findings of 14 October 1994 were: 'DISCUSSION There are two parts to Mr Heywood's claim, the first relates to ruptured eardrum or perforation following grommet insertion in 1982 and the second, to partial facial palsy following a post auricular myringoplasty performed in June 1994. With respect to the partial facial palsy following his myringoplasty procedure on June 1994, the committee has the report from Mr Wong Toi that the procedure was uncomplicated. Mr Heywood did well post operatively, however, following the operation he has some problem with partial facial palsy. The incidence of facial palsy following procedures of this sought are rare and would occur in 1% or less of cases. However, we note from Mr Heywood's letter that the numbness in the right side of his face lasted nearly three weeks and Mr Wong Toi also states that Mr Heywood went into almost total recovery in the early phase. Three weeks numbness does not constitute a significantly disability in terms of the Act, which requires a significant disability for greater than 28 days. Committees recommendation therefore is that this claim should be declined because while rare, the complication is not severe, this advice to become final after 15 working days. 4 ACTION REQUIRED: Proposed advice is that cover be declined, as neither medical mishap or medical error has occurred. FINAL ADVICE: No new relevant information has been received that challenges the Committee's finding, therefore proposed advice is confirmed, and final advice is that cover be declined as neither medical error or medical mishap has occurred." As a result of the findings of the Committee, the respondent notified the appellant that his claim was declined. The appellant applied for a review of that decision. The review officer heard evidence from the appellant, his mother and father and a friend but concluded that the medical evidence did not support the claim. While he accepted that facial palsy following myringoplasty is considered rare, the complication only lasted some three weeks and had virtually resolved so that it did not come within the criteria set out in section 5 of the Act. He therefore declined the application for review. The appellant has appealed against that decision. Mr Rowlett submitted that while the adverse consequence has been accepted as rare, the facial palsy operation represented a significant disability which lasted for more than 28 days in total although it has gradually lessened. He submitted that on the evidence of family and friends and the appellant's own evidence, there was a significant disability for more than 28 days. He submitted that the appellant told the review officer that his face had only started coming right "after" three weeks and he was still a bit affected by it for between 11/2 to 2 months after the operation. He submitted that while the clinical nature of the condition could be regarded as minor by a surgeon it has serious effects for a single man aged 22. Ms Zumbach submitted that the onus of proof is on the appellant to persuade the Court on the balance of probabilities that the claim is covered by the Act. She submitted that the relevant section is section 5. The appellant must establish that he has suffered a medical misadventure as prescribed by the Act and that means 'personal injury resulting from medical error or medical mishap" Ms Zumbach submitted that there is no evidence that there was a failure of a registered health professional to observe a standard of care or skill reasonably to be expected in the circumstances. On that basis that the question of medical error does not arise. Ms Zumbach submitted that medical mishap involves two steps being (a) that the likelihood of adverse consequences occurring are rare and, (b) that the adverse consequences must also be severe. She conceded that the respondent accepted the advice of the Medical Misadventure Advisory Committee that the incidence of facial palsy following procedures of this nature is rare and would occur in less than 1% of the cases. However, the respondent had declined 5 the application because the effects of the medical treatment were not severe within the meaning prescribed by the section. Ms Zumbach submitted that in terms of the definition of medical mishap that adverse consequences of treatment are severe only if they result in death or in hospitalisation as a patient for more than 14 days or in significant disability lasting for more than 28 days or the person qualifies for an independence allowance under section 54. She submitted that in relation to this appellant, section 5(4)(b) is the applicable section and that requires that the adverse consequences of treatment are severe if the significant disability lasts for more than 28 days in total. I agree with Ms Zumabch's submissions as to the application of the relevant provisions of the Act. While the appellant has submitted that he considered the disability lasted for up to 2 months and his witnesses have attested to the fact that palsy was visible to them for some time, the Court has to be guided by the medical evidence which does not support the contention that it was severe for a period longer than 28 days. I do not consider that on the basis of the medical evidence the review officer was wrong in his decision to decline the application. The appeal is dismissed. DATED at WELLINGTON this 27th day of October 1995 A W Middleton District Court Judge dc120-95.doc (nr)