Dalton v Accident Rehabilitation and Compensation Insurance Corporation

19/ 94/ 0081 IN THE DISTRICT COURT DCA No. 158/95 HELD AT AUCKLAND Decision 150 / 95 UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN DANIEL PUAAELO DALTON APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on: 18 October 1995 Date of Decision: 21 December 1995 The appellant in person J. W. Saxton as Counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE I find that the appeal fails. 2. Introduction: The issue in this appeal is whether the appellant suffered personal injury by accident by medical misadventure. The appellant lodged a claim dated 28 January 1994 with the Corporation in respect of facial nerve palsy which resulted from an operation to remove a tumour growing on the facial nerve. The date of the injury was given as 13 August 1992. On 13 August 1992, removal of a facial neuroma was performed by Mr Furneaux at the Auckland Hospital. The facial nerve was sectioned in the removal of the tumour. Mr Dalton has on-going facial nerve palsy. By notice dated 21 September 1994, the Medical Misadventure Advisory Committee recorded its findings as follows:- 'Medical Error : Section 5(1) The left facial nerve palsy following the removal of a facial neuroma is not considered to have been due to a failure by the registered health professional to observe a standard of care and skill that was reasonable in the circumstances. Medical Mishap : Section 5(1) Rarity : Section 5(2) The adverse consequence of the treatment is not rare, as the probability that it would occur is more than 1% where that treatment is given. 4. The review was heard on 13 January 1995. In his decision dated 7 February 1995, the Review Officer referred to the findings of the Committee, to the background of the claim, and to correspondence between the Corporation and Mr Dalton. He referred to Mr Dalton's condition at that time, and to s.5 of the 1992 Act. He said that the damage to the nerve was from all accounts unavoidable, and was not persuaded on the evidence that Mr Dalton had suffered personal injury caused by accident arising through medical misadventure, and he confirmed the decision of the Corporation. There is on the file a letter dated 8 June 1995 from Mr Furneaux to the Medical Misadventure Unit which reads:- "Thank you for your letter regarding Mr Dalton. Mr Dalton's operation on 13.8.92 at Auckland Hospital was in fact removal of a facial neuroma not an acoustic neuroma, hence the facial nerve was sectioned in removal of that tumour and, in my experience, 100 percent of cases develop facial weakness afterwards. A nerve graft has been performed and the patient was well aware of the risks prior to surgery" The file also contains particulars of an operation in August 1992 to stitch up part of the eye of Mr Dalton that was affected by the palsy, but that operation is not relevant to this appeal. Appeal Hearing: For the purposes of the appeal hearing Mr Dalton filed a written submission dated 11 September 1995. In those submissions he referred to the 5. operation for removal of the tumour, his condition since the operation, a problem he had with his eye which was treated in August 1994 by stitching. He also referred to a problem that arose from that when his eye began bleeding. He said that before the operation in August 1992 there was nothing wrong with his face, and he produced photos taken before and after the operation. He also referred to problems that he has with his head and neck, and said that he wanted some form of compensation for the suffering he has endured, the loss and enjoyment of life, for example, socially, because it now appears that he has a permanent disfigurement and disability to his face that he did not have before the operation. In her submissions on behalf of the Corporation Ms Saxton summarised the documentation on the file and referred to the report of the Committee. She also referred to the fact that in August 1994 Mr Dalton had an operation to stitch up his left eye and that that did not change the conclusion of the Committee. She also referred to the appellant's present medical condition. Ms Saxton submitted that there was no medical error as defined in s.5(1) because there was no failure to observe a standard of care and skill reasonably to be expected in the circumstances. She submitted that there was no medical mishap as defined in s.5(1) because the likelihood of the adverse consequence of the treatment occurring was not rare. Section 5(2) defines the rarity of adverse consequences as being the probability that the adverse consequence would not occur in more than one percent of cases where that treatment is given. In this case, the evidence showed that the adverse consequences would occur in every case where that treatment was given. 6. According to the file, Mr Furneaux advised that at the time of the operation to remove the neuroma, a nerve graft had been performed. At the hearing of the appeal, Mr Dalton advised that a doctor at the hospital had advised him that the hospital records recorded that no nerve graft had been performed. With the consent of Mr Dalton I obtained copies of the hospital records for 1992 and 1993. The clinical summary for 13 August 1992 read:- "13/8 Excision (L) facial N. Neuroma + Greater auricular N. graft to VII. Fascia lata graft for closure. VIII adherent to tumour." That note shows that a nerve graft was performed but I understand that they are often unsuccessful. Conclusion: The evidence shows that there was no medical error in the operation because there was no failure to observe a reasonable standard of care and skill to be expected in the circumstances. The evidence also shows that there was no medical mishap because the adverse consequence of facial nerve palsy was not rare. Accordingly, there was no medical misadventure, and Mr Dalton is not entitled to any compensation under the Act for the facial nerve palsy and the appeal fails. District Court Judge