DK v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 90 195 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19 / 94 / 0083. BETWEEN DK of Auckland Appellant (Appeal No. DCA 107/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of July 1995 APPEARANCES Appellant with her counsellor Mrs R Farrington P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON The appellant has requested suppression of her name and of any details which will lead to disclosure of her identity, this application is granted. This decision will therefore be delivered in the name DK of Auckland against the Accident Rehabilitation and Compensation Insurance Corporation. The issue is whether the appellant is entitled to cover for medical misadventure in terms of section 5 of the Accident Rehabilitation and Compensation Insurance Act 1992. 2 The appellant lodged her claim with the respondent on 8 October 1992 in respect of pregnancy following a tubal ligation. Information submitted to the respondent in support of the claim stated that the appellant was a patient of the Multiple Sclerosis Society. She was diagnosed as having Multiple Sclerosis during the pregnancy of her third child in 1986. She had previously suffered the trauma of the loss of her second child due to cot death and she then had two children aged 10 and 6 years respectively. As a result of the cot death and the problems connected with the third pregnancy coupled with the diagnosis and the exacerbation of Multiple Sclerosis, the appellant was advised to undergo tubal ligation which was performed on 30 October 1989. The appellant has suffered many exacerbations since the abortion, the latest prior to her subsequent abortion occurring on 28 August 1992 when she was treated by prednisone. It was submitted on behalf of the appellant that the treatment by prednisone apparently masked the earlier signs of what proved to be a pregnancy. When it became evident that the appellant was pregnant, the effect was devastating for her and her husband and caused them both great concern. A report from Professor Mantell on 13 September 1993 stated: "I have reviewed the notes of the appellant who I remember well and confirm that she was admitted to National women's Hospital for Laparoscopic Sterilisation performed on 03/10/89 by Drs MacPherson and Grantham. The operation note (copy enclosed) indicates that a good of the appellant's pelvic organs was eventually obtained an Filshie clips were applied to the tubes. Initially a clip was placed inadvertently on the right round ligament (instead of the tube) but this was recognised and another clip, the third in all, was applied to the right tube. At the tubal excision undertaken by myself after the termination of the pregnancy on 20/10/92, the left tube was occluded by a clip correctly placed about 2cm from the uterus. The clip on the right round ligament was present as described in Dr MacPherson's operation note but the right tube was intact along its length and there was no evidence of the third clip which had obviously become dislodged. We searched the abdomen for this but could not find it. This is not unusual for we are searching through a small incision and even with xray monitoring it can be very difficult to find. Usual practice is to look in the pelvis but not to extend the surgery if the clip is not apparent. The clips are made to remain inside the peritoneal cavity and usually do not cause problems. In terms of medical misadventure I am not sure whether the old or new rules apply. Failure to remain sterile is a recognised complication of the procedure and patients are advised that this risk is about one in 200. I have made comment to this effect in my letter to Dr Trotman on 20/7/89. 3 I do not know why the clip failed to remain firmly in place but in view of Dr MacPherson's experience, I can only assume that this was an equipment failure with the clip failing to lock closed. The unrecognised application of a clip to the round ligament is a common cause of failure but clearly the tube was eventually identified at the time of surgery. I am sorry for the disruption and stress this event caused the appellant." The respondent referred the application to the Medical Advisory Committee as it is required to do pursuant to section 5(9) of the Act. The Committee had available to it Professor Mantell's report and invited submissions from the appellant who explained that the reason for her referral was because of her medical condition of Multiple Sclerosis and her past history of having lost a baby due to cot death as well as continuing problems with her son. She explained that she had suffered emotional trauma as a consequence of finding out again that she was pregnant after the tubal ligation and as a consequence of the termination of the pregnancy. The Medical Misadventure Advisory Committee reported that the pregnancy following the tubal ligation on 3 October 1989 was not due to the failure by a registered health professional to observe a standard of care and skill that was reasonable in the circumstances. It stated: "The Committee discussed the issue of medical error but believe that a reasonable standard care and skill was observed. It appears that there may have been an equipment failure but it is impossible to be certain about this as the clip searched for but not found." However, the Committee found that in its opinion there had been a medical mishap in terms of section 5(1). It made this finding because it considered that the adverse consequence of the treatment was rare as the probability that it would occur is less than 1%. The Committee noted that the failure rate of tubal ligation not related to a pregnancy has a recognised failure rate by spontaneous peeling of the tubes of about 0.3%. The Committee considered that the appellant met the criteria for rarity and that she had suffered an adverse consequence which was severe and that there was a significant disability which lasted more than 28 days in total. On 11 July 1994, the respondent decided to decline the appellant's claim for cover. The appellant applied for a review of that decision. The respondent elected not to be represented at the review hearing and submitted a letter dated 4 November 1994 advising the reasons for its decision. That letter gave the reasons as: " The appellant's claim is in respect of pregnancy following tubal ligation. In giving advice to the Corporation, the Advisory Committee considered that there was no evidence to support the claim the medical practitioner failed to observe (sic) a reasonable standard of care and skill. Failure of tubal ligation is a known risk and it is no usually considered to be medical error unless that can be specifically demonstrated. Even if error occurs, the Corporation is of the view that a pregnancy is not a personal injury, as defined by the ARCI Act 1992, but a natural physiological occurrence (sic). There is also no direct causal link between the operative procedure and the pregnancy. I refer you to the detailed summary provided by the Client Officer, Rachel King, for the Unit review process, particularly Page 3 of the report which explains the Corporation's reasons for declining the claim. Proper procedure was followed throughout the claim." The review officer invited the appellant to make submissions and Mrs Farrington presented a written statement in which she made the following submissions: 1 . That while the respondent compared the appellant's situation to that of an ectopic pregnancy, she was in fact carrying a foetus which was then of some 13 weeks gestation within the uterus proper. 2. She raised doubt that if there was a known risk of failure of a tubal ligation then some other technique should have been used and she suggested that with the knowledge of the appellant's medical condition, the fallopian tubes could have been completely removed. 3. That the reason for the tubal ligation was the realisation that the appellant had developed Multiple Sclerosis and should not have to go through the trauma of a further pregnancy. 4. That while the respondent considers a pregnancy to be a naturally occurring event, it was open to the appellant to complain that she had undergone sterilisation in order to prevent such a naturally occurring event. 5. That while the respondent suggested that the appellant had not suffered personal injury, she had in fact suffered and continues to suffer enormous mental and emotional anguish as a result of the failed sterilisation and enforced abortion. 6. She was enable to appreciate that the Medical Misadventure Committee having advised that a medical mishap had occurred the respondent declined to accept that advice. 5 7. That there was a direct causal link between the tubal ligation, the resulting pregnancy and the intense mental and emotional pain suffered thereafter. 8. That as the tubal ligation surgery was performed in October 1989, the claim should be considered under the provisions of the Accident Compensation Act 1982. The review officer stated that while she disagreed with the respondent's policy in this area, she felt bound to accept it and declined the application for review. Mrs Farrington asked me to accept the submissions which she had already made to the review officer as submissions in support of the appeal. Ms Zumbach submitted: 1. That while provision is made in the Act requiring reference to the Medical Misadventure Advisory Committee, the respondent is not required to follow the advice given by that Committee. The Committee provides the respondent with medical advice but pursuant to section 8, the respondent is required to have regard not only to that advice but to also apply the statute and to make a decision which is correct in law. 2. That while the 1982 Act stated that "personal injury by accident" included medical misadventure, the expression personal injury "was not defined". It followed therefore that if there was medical misadventure there was personal injury by accident and, therefore, cover. Thus, under the 1982 Act the injury took its character for a medical misadventure. 3. Under section 5 of the 1992 Act, there must be "personal injury resulting from medical error or medical mishap so that personal injury is the condition precedent" 4. The personal injury must, therefore, result from the medical error or medical mishap. 5. Under the Act, an error is defined as the failure of a registered health professional to observe the appropriate standard of care. A mishap is the adverse consequence of treatment by a registered health professional of appropriate rarity and severity. 6. That in order to establish whether the appellant has cover under the Act, she posed the questions: a) What was the medical treatment that was at issue; (b) Has there been an adverse consequence of that medical treatment. (c) Has the appellant suffered personal injury. (d) If there has been an adverse consequence of medical treatment and also a personal injury, has the personal injury resulted from the adverse consequence. 7 . That the appellant's claim is in respect of pregnancy and abortion following the tubal ligation. The medical treatment at issue was the tubal ligation carried out in 1989. 8 . Professor Mantell attributed the fact that one of the clips had come loose as a result of equipment failure but Ms Zumbach submitted that there has been no adverse consequence of the particular treatment in 1989. It has not been demonstrated that there have been consequences from the clip coming loose and if subsequently the clip does lodge in the organs and cause damage that may be evidence to a support claim for a medical mishap. That as there is therefore no adverse consequence from the 1989 treatment, the issues of rarity and severity do not arise. The respondent accepts that a clip coming loose does meet the test of rarity but the test in section 5 requires that the adverse consequences, if they have occurred are both rare and severe. In order to meet the severity test, the appellant must have a "significant disability lasting for more than 28 days in total" and there is no evidence to support this claim. Ms Zumbach submitted that there was no evidence, either medical or otherwise that the appellant has been unable to perform an activity in the manner or within the normal range for a person as a result of the clip coming loose. 9. In relation to the issue of whether the appellant has suffered personal injury, section 4 defines personal injury as being "the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person". 10. While the medical evidence is that the personal injury for which the appellant is claiming for is the mental anguish of the pregnancy and its termination due to the failed tubal ligation that does not come within the definition of personal injury as provided in section 4 11. The only ambit in which mental injuries come into play are the circumstances set out in section 8(3) which extends to personal injury which is mental or nervous shock suffered by a person as an outcome of specified criminal acts (including rape) in contrast to the 1982 Act which included mental or nervous shock and pregnancy. Ms Zumbach submitted that as mental or nervous shock has been specifically retained under the 1992 Act, but not pregnancy, cover no longer exists for pregnancy arising out of rape. However, the rape victim would of course have cover in respect of physical injuries and mental injuries. On the basis of the change in definition. Ms Zumbach submitted that it would be anomalous that the rape victim could not claim for an unwanted pregnancy when a person in the appellant's position could if this appeal is allowed. 12. That section 4 provides that personal injury for the purpose of the Act means the physical injuries to a person and "any mental injury suffered by that person which is an outcome of those physical injuries". The appellant must therefore, establish that she has suffered a physical injury and in this respect, it has been established in New Zealand that pregnancy is not personal injury by accident. In support of this proposition, Ms Zumbach referred to Blair's Accident Compensation in New Zealand at paragraph 7.4 where it is said: "The High Court judgment just referred to [ACC " Auckland Hospital Board and MO [1980] 2 NZLR 748, (1981) 1 NZ ACR 9] indicates that the fact of an unexpected and unwanted pregnancy is not, by itself, evidence of "personal injury by accident". This supports the view expressed by the Appeal Authority in Mrs McR (1979) 1 NZAR 567, and this opinion would appear to be endorsed by Cooke J and some observations in L v M [1979] 2 NZLR 519 at 530. Both of the last-mentioned cases were "sterilisation" ones. Cooke J said that he thought that a pregnancy, however unwanted, could not naturally be described as personal injury but indicated that if there was evidence of some mishap during the operation, this might amount to "medical misadventure". 13. That the appellant's claim to have suffered personal injury by having to undergo an abortion does not constitute personal injury as it did not cause physical damage to the appellant. While it is accepted that there was certainly mental damage and there was interference with the body, was no physical damage or harm. Ms Zumbach submitted that the requirement to have an abortion was the consequence of becoming pregnant and to have a pregnancy is not by personal injury, so that the abortion can not therefore be personal injury. I have referred to Ms Zumbach's submissions in some detail because they succinctly follow the provisions of the Act. The appellant made her claim for cover in respect of the treatment she received in October 1992 so that the issue must therefore be determined under that 1992 Act. While the respondent is required to refer claims in respect of medical misadventure to its Medical Misadventure Advisory Committee, that Committee makes its findings on medical issues only. The respondent must have regard to those findings but it must also apply them to the law as provided in the Act. Ms Zumbach has very carefully detailed the provisions of the Act and their applications to the medical evidence which I have set in this decision because I consider that they correctly cover all the issues raised in this appeal and I agree with them. The appeal is dismissed. DATED at WELLINGTON this 2 2 nad day of August 1995 A W Middleton District Court Judge dc107-95.doc (nr)