Ford v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 279 /2001 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN CRAIG DOUGLAS FORD (Al 40/01) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 16 July 2001 APPEARANCES Mr CD Ford, in person Mr C Hlavac, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the appellant is entitled to cover for personal injury by medical misadventure being a failure to diagnose correctly the appellant's medical condition within the meaning of medical error in s.36 of the Act. 2] The facts which are relevant to the determination of this issue, as I find them to be, are as follows: 3] The appellant was at the material time a roofing contractor by occupation and was so engaged in that occupation on 29 September 1996. In the course of his work, the appellant slipped off a roof and fell on to a metal pole sticking out of the ground. The pole went into his abdomen. He was taken to Christchurch Accident & Emergency. He was 28 years of age at the time. [4] During the time of the appellant's stay in hospital and subsequent treatment he was under the care of Mr MK Gordon, General and Vascular Surgeon and the events of the appellant's admission, treatment and outcome are best stated in the words of Mr Gordon when he made a report to the respondent following the appellant lodging a claim for medical misadventure in February 2000. 40 01Ford.doc (jed) 2 [5] Although it is not clear from the file, it is assumed that at the time he suffered the injury the appellant made a claim for personal injury by accident for that injury suffered in the fall and the claim for medical misadventure which he made in February 2000 is quite a separate and a distinct claim from any earlier such claim. The essence of the appellant's claim is that registered health professionals at Christchurch Hospital, principally in the person of Dr Maria Bews-Hair, the Acute Surgical Registrar who admitted the appellant failed to obtain a CT scan of his abdomen at the time of his admission and thereby failed to diagnose a pancreatic pseudocyst. [6] The report from Mr Gordon states as follows: "Craig presented to the Emergency Department at Christchurch Hospital on 29 - 09 - 96 at 11:02 am. While undertaking roofing work he had fallen on to a clothesline pole. He was seen by the acute surgical registrar at that time, who I believe was Dr Bews-Hair. Dr Bews-Hair admitted Craig under my care but considered him to be stable. She elected not to inform me of Craig until next day when I undertook a post-acute ward round. At that stage Craig had a hard mass (haematoma) over his left rectus sheath but was otherwise comfortable and stable. At the time of the ward round Craig was eating and was keen to go home. I discussed with Dr Bews-Hair management of such an injury. Craig's observations had all been normal apart from a slight elevation in temperature overnight. Specifically pulse and blood pressure were normal. Haemoglobin remained stable at 147. Serum amylase was normal. I suggested to Dr Bews-Hair at the time that I would have obtained a CT scan of Craig's abdomen on arrival due to the nature of the injury. However, with the benefit of 24 hours observation and continuing normal observation I thought that this could be omitted at this stage. Craig was observed through to next morning and discharged on 01-10-96. We planned for him to come to outpatients in a fortnight. He had a large haematoma within the rectus sheath. We planned to review his general condition and look to aspirate the haematoma from the rectus sheath as it liquefied, to speed up resolution. I saw him on 10-10-96, at which stage much of the haematoma had liquefied. I aspirated further seroma and found that he had developed a hernia through the rectus muscle, which was obscured at the time of admission by the hard haematoma Craig was booked for urgent repair to allow return to work. Four days later, on 14-10-96 Craig developed abdominal pain. He was readmitted and a CT scan performed. This showed a pancreatic pseudocyst (fluid collection) related to a transverse area of rupture in the pancreas gland Craig settled over the next few days. An ERCP was arranged to determine whether the main pancreatic duct was damaged significantly or not. This could not be obtained for a month. As Craig had settled well he was let home in the interim. Craig had a further admission on 20-11-96 until 22-11-96 with further pain. CT 40 01 Ford.doc (jed) 3 scan showed no change in the state of the pancreas or the size of the pseudocysts. Craig was again allowed home awaiting the ERCP which took place on 28-11-96. The ERCP showed no filling of the tail of his pancreas. My assessment at this stage was that Craig had a significant disruption of the distal part of his pancreatic duct with formation of a pseudocyst, which is a collection of pancreatic fluid adjacent to the pancreas. I felt that this was unlikely to heal in a satisfactory manner and left untreated likely to form either an expanding pseudocyst or a strictured duct with ongoing problems with pain. I arranged for a laparotomy and resection of the tail of the pancreas with the pseudocyst which took place on 07-12-96. Please find enclosed a copy of my operation note. Craig's rectus hernia was repaired at the time of operation. Craig was discharged well on 17-12-96. I saw him a week later at follow up, at which stage he was recovering well. I last saw Craig on 17-04-97. At that stage he had had 2 episodes of pain since discharge, both in the left hypochondriam. The pain resolved after an hour or so. He had a tendency for the rectus on that side to bulge due to paralysis from the injury. There was no sign of recurrent hernia. Craig had returned to full employment and social activities. I left arrangements that Craig's general practitioner would contact me were he to have further problems. Please find enclosed a copy of my discharge summary. In summary Craig sustained an injury when he fell on to a clothesline pole while roofing. This resulted in some rupture of the rectus muscle to the left of midline and a large haematoma with a hernia evident as the haematoma resolved. He also damaged his distal pancreas, such that there was significant transection. Although admitted under my care on 29-09-96 I first became aware of Craig's presence in the hospital on the next day during the ward round. At that stage he was stable and with the benefit of 24 hours observation I thought it reasonable to forego a CT scan. ( believe Craig's concern is that a CT scan at the time would have shown the pancreatic injury earlier and this is probably the case, as a CT is reasonable sensitive in delineating pancreatic injury. Had the pancreatic injury been noted at the time one of two events would have taken place. If a major transection was evident, consideration would have been given an acute operation. The distal pancreas would still have required transection. The only significant difference would be that it would have been likely his spleen would have needed to be resected at the same time rather than preserved, as it was in his delayed operation. Alternatively, if the CT had shown minor appearances of injury without significant fluid around the pancreas or inflammation, a conservative course would have been undertaken in the first instance with a delayed ERCP to assess the integrity of the pancreatic duct (as was the outcome). 40 01 Ford.doc (jed) 4 With Craig clinically well for a fortnight afterwards I believe that the latter would have been more likely. I normally would obtain a CT scan on arrival at the hospital for someone with an injury of this nature and certainly would have confronted with this situation again. I therefore do agree with Craig that diagnosis was delayed by omission of the CT scan on arrival. Fortunately this did not alter the outcome as surgical removal of the distal pancreas would have been necessary either way. I was very pleased to note that Craig had returned to full employment and social activities when I last saw him on 17-04-97." [7] Following receipt of that report and also the operation notes that had been made at the time, the respondent's medical misadventure advisory unit referred the matter to Mr Michael Sexton, General Surgeon at Grey Hospital, Greymouth, for independent assessment. Mr Sexton reported to the respondent on 14 April 2000, and after noting the history of the appellant's treatment from the time of his admission to Christchurch Hospital until his final discharge on about 17 December 1996, he went on to state as follows: "Pancreatic injury is notoriously difficult to diagnose and easy to miss. Serum amylase and CT scans have varying success with sensitivities of 50-80% in the literature. An ERCP is an accurate indicator of pancreatic duct damage. While, in hindsight, it would have been better to have had the CT scan at the time of admission, the normal amylase was (falsely, as it turned out) reassuringly normal, as was the white cell count. My only comment is that the rectus haematoma, and underlying rectus transection, would have made the interpretation of intra- abdominal signs unreliable, which may have been an additional indication for a CT scan. However, I do not think that the failure to perform a scan, on the initial admission, was negligent, given the results of the investigations and other parameters. The outcome in terms of the operation would have been the same although if it had been picked up on an earlier CT scan, and there is no guarantee that it would have, then the intervention may have taken place earlier. My opinion is that the claim should be declined as there was not a negligent failure to diagnose the pancreatic injury at the initial admission, and therefore, the criteria for medical error are not met." [8] Following receipt of Mr Sexton's advice the respondent advised the appellant by decision dated 4 May 2000 that his claim for cover for medical misadventure was declined and the reason given in that letter was that there was no evidence that medical error had occurred. It stated that there was not a negligent failure to diagnose the pancreatic injury at the initial admission therefore the criteria for medical error was not met. The letter enclosed the various medical reports that had been obtained including reports from Mr Gordon and Mr Sexton and also from the appellant's GP, Dr Moody. [9] The appellant sought a review of that decision and a review hearing took place on two occasions namely on 25 September 2000 and 22 November 2000. At the first hearing only the appellant was present but that hearing was reconvened at the later date in order that Mr Gordon could give evidence. The Reviewer had received a letter from Mr Gordon dated 11 October 2000, the relevant portions of which are as follows: 40 01 Ford.doc (jed) 5 "When I spoke with Mr Ford I indicated that the CT scan may have shown a major disruption of the pancreas, in which case we would have gone on to immediate surgery. However, if the CT scan had not shown a major disruption a conservative course would have been undertaken. My statement that a conservative course would be more likely to have been taken in the report of 14 March is based on the fact that Mr Ford did not present with an acute abdomen from pancreatitis, but with a gradually accumulating pseudocyst. As a CT was not done, I cannot say whether a significant disruption would have shown or not. My comment to Mr Ford was based on what we would have done if this had been evident. I also discussed this course of action in my report of 14 March. I do believe it is more likely that the CT would have shown less than a major disruption in the acute phase due to the lack of acute pancreatitis and slow development of a pseudocyst. For this reason with the benefit of hindsight I stated that a conservative course would have been more likely." [10] At the hearing on 22 November 2000 Mr Gordon gave evidence and relevant passages from the transcript of that hearing I note as follows: "I think ideally a CT scan should have been done on presentation. That would be my expected standard I think when I saw you the next day on the ward round I said to my registrar, with injuries of that type, you should get a CT scan." "When you fell the pole struck that very hard. Now with the nature of that injury ! think you should have had a CT scan on presentation.' "Now the reason for doing a CT scan when you immediately arrive is to see if you have got major disruption, bleeding. If you can pick those things out early and then we do surgery straight away before you turn badly sick from it and that can prevent major complications from happening. Now by 24 hours later when I saw you, you'd had a period of observation and all your numbers and everything were quite stable. Quite remarkably your amylase test was normal as well. It is very very rare for an amylase test to be normal if you have had a significant injury to your pancreas. Eventually your pancreas separated into two parts and pancreatic enzyme was leaking into what we call a pseudocyst, a false sort of wall cavity. Now for things to happen the way they did one or two things would have happened. When you fell either the sort of squash would have split your pancreas like that and disrupted its main duct but for amylase not to leak and cause a rapid pancreatis at the time, amylase level in that duct would have had to have been squashed shut until with blood clot both sides to stop any amylase from leaking. Alternatively, what can happen is when it gets that injury like bruises, these cells, the pancreas does not separate and it bruises and the cells can go on to die but they do not separate at the time. Over a period of weeks the enzymes digest, because they are digestive enzymes that the pancreas makes and the enzymes digest away the vitalise tissues so that the two pieces will then separate. Now a CT scan would have shown if you had a major disruption at the time and it had separated and it would have seen that, we may well have gone on at the time to do the operation, take 40 01Ford.doc (jed) 6 away the tail of the pancreas on the basis that you could well start leaking fluid. The CT scan had shown the other alternative, that the pancreas wasn't separated in the presence of all your observations being normal and your amylase being normal and so forth we would have anticipated you would probably go on to heal and not need an operation and we wouldn't have operated at the time. So a CT scan may have shown a major transection, it may not have shown a major transection. We can't say in retrospect, which would have done." "When we reviewed your case we said to all registrars you must get that CT on admission. By 24 hours later the indication for it is less evident and everything else is normal. So probably ideally it should have still been done and it may or may not have shown sufficient disruption to prompt us to take you straight to theatre because there's two possible ways of it going on to that pseudo system. Now because it took several weeks for you to form a pseudocyst and actual pancreatitis my colleagues in x-ray think that most likely this area was devitalised but not separated and that it wouldn't have separated until the enzymes digested it and that it may not have shown and they think on the balance that's the most likely thing. So its quite likely that the CT would have shown some bruised pancreas and in the event everything else looking good we would have anticipated healing and not going to operation." "The CT scan can show a range of injury of the pancreas from what we call (inaudible) or a swollen pancreas through to a haemorrhage where its bruising to the pancreas, to areas of pancreatic depth or major disruptions. The vast majority of times pancreas will heal themselves and so you don't necessarily unless the pancreas is obviously not going to heal itself." [11] In his decision dated 6 December 2000, the Reviewer stated that having regard to the evidence as a whole, he did not consider the onus to have been discharged. He stated that whether or not the initial failure to obtain a CT scan amounted to medical error, he had not been persuaded that that failure caused the appellant to suffer personal injury. He found that the medical evidence was that it was likely that the outcome for the appellant would have been the same regardless of whether a CT scan had been arranged on his arrival at hospital or not. The respondent's primary decision was therefore confirmed [12] For the purposes of the appeal to this Court no further evidence was sought to be introduced by either party and Mr Gordon was not present. It can be noted that the Acute Surgical Registrar, Dr Marie Bews-Hair, who had attended the appellant at the time of his admission to the Accident & Emergency Department, Christchurch Hospital, had gone overseas shortly after these events and was not able to be contacted in anyway regarding the appellant's claim for medical misadventure. [13] In his submissions to the Court the appellant contended that there had been a failure which amounted to medical error by not obtaining a CT scan at the time of his admission o hospital and that failure had caused him unnecessary suffering and had prolonged the complications from the injury of the fall and that the injuries were unable to be finally treated and satisfactorily resolved until the surgery on 7 December 1996. 40 01 Ford.doc (jed) [14] Mr Hlavac, counsel for the respondent submitted that a CT scan may not necessarily have disclosed the pancreatic injury and even if it had it was unlikely that the course of treatment would have been any different. [15] Mr Hlavac further submitted that the personal injury alleged by the appellant was only that of pain and the suffering experienced by him up until his operation on 7 December and this does not amount to a personal injury within the meaning of the Act, but that in any event the pain and suffering is only that alleged for the period after 14 October 1996 when the appellant was admitted with pain symptoms and a CT scan was performed. DECISION [16] The appellant is asserting that he has suffered personal injury by medical misadventure, being medical error, that medical error being a negligent failure by a registered health professional to diagnose correctly the appellant's medical condition. [17] It must be remembered that under Accident Compensation principles, the medical error must be causative of a personal injury as it can only be that cover can be had under the Act for a personal injury caused by medical misadventure. Thus it is that a claimant must establish those two separate ingredients before a claim can be successful, namely the suffering of a personal injury and of the fact of that personal injury being caused by a negligent act of a treating health professional. [18] Medical error is defined in s.36 of the Act as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances". The definition goes on to state: "Such failure includes a registered health professional's negligent failure to diagnose correctly and insure its medical condition" The definition concludes: "Medical error does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results." [19] The determination of medical error is a determination of law and in terms of the Accident Insurance Act that determination of law is required to be made firstly by the respondent, on the advice of its medical misadventure advisory unit, then by the Reviewer should the decision be taken to review, and finally by this Court in the event of an appeal. (20] Insofar as this Court is concerned the ruling on the question of law must be based on the evidence which the Court has received and by applying that evidence to the test which the meaning of medical error requires. [21] In this case the respondent obtained most of the facts of the matter from the reports of Mr Gordon, the treating surgeon, and a second opinion, or an independent assessment from Mr Sexton, the General Surgeon. It is for the reason that Mr Sexton considered that, in his opinion, the claim should be declined as there was not a negligent failure to diagnose and that the criteria for medical error had not been met, that I have set out the respective functions of witness and judge in issues of this nature. In short, it is not for Mr Sexton to provide an opinion on whether or not there was negligence, but rather for him to give his independent assessment of what standard of care a treating health professional is expected to observe in the particular situation of Dr Bews-Hair. It is then for this Court to determine whether, on the evidence, a finding of law of negligence can be made out. 40 01 Ford.doc (jed) 8 (22] I have carefully considered the evidence of Mr Gordon, both from his written reports and from the evidence he gave at the review hearing, and I find that on balance, the evidence is that the appellant ought to have had a CT scan on admission. This particular injury from accident was severe and had the potential for considerable internal problems and a CT scan is intended to ascertain exactly what those internal complications may have been. Mr Gordon is quite clear that in the case of this appellant the nature of his injuries in the accident were such that a CT scan ought to have been carried out. He indicated that when they reviewed the appellant's case it was given as an example of a situation where a CT scan ought to have been taken. [23] In those circumstances I find from that evidence that there was a failure on the part of Dr Bews-Hair as the treating medical professional at the time to observe the standard of care and skill reasonably to be expected in the particular circumstances of this appellant's admission to Christchurch Hospital. [24] Having found that there was medical error by failing to obtain a CT scan, I turn now to determine whether that medical error has caused a personal injury for which cover can be granted. [25] When the appellant was admitted, the appellant was displaying an obvious haematoma of the left abdomenus rectus muscle, being the area of puncture by the metal rod. As was noted from the hospital records, other tests were normal including his blood and amylase. It was not until the appellant was readmitted to hospital on 14 October with an abdominal pain that a CT scan taken at that time showed a transversal rupture of the pancreas with a pseudocyst. [26] I have considered Mr Gordon's evidence as given at the review hearing and note that he is of the opinion that because the amylase test was normal at the time of admission it was unlikely that at that point the pancreas had separated into two parts but rather that pancreatic enzymes were leaking and which ultimately caused a pseudocyst. It was the digestive enzymes in the pancreas that devitalised the tissue in the wall of the pancreas so that it separated and that this is what had occurred by the 14 October when the appellant developed an abdominal pain and that state of affairs was identified. Mr Gordon considered it probable that an earlier CT scan would have shown that the pancreas had not separated and with the amylase being normal the likelihood would be that the injury would heal and would not require an operation. [27] In those circumstances, I find that the injury which the appellant suffered in the fall was still the injury which was "progressing" during the period of 1 - 14 October and that it didn't manifest itself until the abdominal pains were experienced and which indicated the presence of the pseudocyst which had occurred as a consequence of the leaking of the pancreatic enzymes. [28] The appellant's treatment from that point on was treatment that would have been the case in any event whether an earlier CT scan had been taken and I cannot find from the evidence that the appellant suffered a separate and a distinct personal injury as a result of a particular aspect of the medical error that I have found that did occur at the time of his admission to hospital. 40 01Ford.doc (jed) 9 [29] In essence then, I find that the evidence does not disclose that the appellant had suffered a major disruption of the pancreas in the fall and it was there present and waiting to be seen at the time of admission and that it went unseen for 14 days. Such is not the case as I find from the medical evidence given by Mr Gordon. [30] The outcome of these findings is that it cannot be established that the appellant suffered a personal injury as a consequence of any act of medical misadventure. The injuries that he did suffer, he had suffered in the fall and when the true extent of those injuries was found, and as I have stated they were found as soon as they became manifest, the appropriate treatment and surgical procedures were carried out. [31] The appellant did experience pain, but in the first instance that pain was identified with the hernia which was duly repaired, and it wasn't until the pain he experienced on the day of his further admission on 14 October that procedures were swung into action and the appellant was given the treatment that he would had been given earlier if the separation, not being a slow separation, had occurred at an earlier date. As I have found, the evidence discloses that that separation had not occurred as a consequence of the trauma of the fall and therefore would not have been seen had a CT scan had been carried out at the time of the appellant's first admission to hospital. [32] In summary then, the aspect of medical error which I find to have occurred is not one which had any adverse consequences, let alone cause a personal injury. For the avoidance of doubt I find that there was medical error in a particular area but there was not error in general in failing to diagnose correctly the appellant's medical condition as I find that that medical condition was correctly diagnosed as soon as it became identifiable. [33] For the foregoing reasons therefore, the appellant's claim for cover cannot succeed and this appeal is dismissed. DATED at AUCKLAND this 3'd day of October 2001 M J Beattie - District Court Judge 40 01Ford.doc (jed)