Higgins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 54 198 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ELAINE MARION HIGGINS 265 DCA 353/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of March 1998 APPEARANCES: A de Jonge advocate for appellant Miss E Long for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to decline cover under the Act for medical misadventure was correct. 2 Background Facts From 1976 until 1990 the appellant now aged 45 years was a patient of Dr Ivan Harper, a general practitioner carrying on practice in Palmerston North. Dr Harper prescribed the appellant the drug Mogadon for relief from insomnia. Mogadon is a brand name for an anti-depressant drug containing nitrazepam which is a type of a benzodiazepine. Dr Harper continued to prescribe this drug over a period of some 14 years because of the continued tensions on the appellant's life, the last prescription for the drug issued by Dr Harper was November 1989. At no stage did the appellant take any quantity of the drug over and above the stated dose and throughout the period of her taking the medication the frequency and quantity of her taking remained the same. In 1990 as a consequence of seeing a programme on television about dependency on the benzodiazepine group of drugs the appellant made a decision to abruptly withdraw herself from the drug and did so under circumstances that she described as being "cold turkey". She neither sought nor obtained any medical advice regarding this withdrawal. The appellant stated that the withdrawal symptoms that she thereafter suffered from included anxiety, depression, sweats, sleep disturbance, nightmares, blurred vision, difficulty with balance, muscle aches, headaches, diarrhoea, difficulty with memory, acute anxiety and panic attacks. The appellant states that these withdrawal symptoms lasted until at least the end of 1990. On the 3rd of April 1996 the appellant lodged a claim for cover and treatment expenses. In her claim form and stated "My injury was caused through drug induced injuries long term prescription and long term addiction to prescription drugs." The making of this claim was the first occasion that the appellant had raised any concerns about her withdrawal problems that she had suffered some six years earlier. As is required by the Act this claim was referred to the Medical Misadventure Advisory Committee. In a report to the MMAC dated 13 April 1996 Dr Harper, who had been retired from medical practice since January 1991, stated: "When Mogadon first became available for prescription, the literature described it as a very safe drug with no significant side effects. Physical dependence following chronic ingestion of high doses (several times the usual therapeutic dose) of benzodiazepines was first reported in the late 1970s but it was not until the early to mid-1980s that there were reports of withdrawal symptoms following abrupt cessation of therapeutic doses. Tolerance can develop quite rapidly to the sedative properties of benzodiazepines and hence the fact that Mrs Higgins did not seek any increase in the dose reassured me that tolerance had not developed. In fact the pharmacy records show that in the period between April 1988 and November 1989 60 Nitrazepan 5mg tablets were dispensed only every 8 to 10 weeks, demonstrating that whilst the dose prescribed was up to 10mg Mrs Higgins had reduced the dose to 5mg. By the time concerns about dependence to benzodiazepines ingested in therapeutic doses was reported, Mrs Higgins had already been taking Mogadon for a number of years. Thus in the absence of any request for increased dosage (or increased frequency of prescription) I formed the view that Mrs Higgins continued to derive a safe, therapeutic benefit from the medication with no obvious side effects." In its initial determination of 12 August 1996 the MMAC stated: "There is no evidence before the committee that would establish that Mrs Higgins had suffered a personal injury from her being prescribed benzodiazepines as required by the Act. There is no evidence before the committee that Mrs Higgins was physically addicted to any of the drugs named by her as is evidenced by abuse or by exceeding the prescribed dose by obtaining supplies from more than one doctor or from other sources. As there is no evidence to establish a personal injury as required under the Act, the recommendation of the committee is that the claim be declined." The appellant was given the opportunity of commenting on this ruling and she advised that she would be obtaining independent specialist opinion. In that regard she obtained a report from Dr Greig Mccormick, psychiatrist. In his report Dr Mccormick stated inter alia: "In my opinion Mrs Higgins was clearly dependent (addicted) to benzodiazepines during the course of her treatment with them between 1974 and 1990. Drug dependence is defined by different people in different ways. Attempts have been made to operationalise criteria to define the concept of dependence (eg DSM - IV). The concept of dependence embraces both psychological dependence and physical dependence. There are two hallmarks for physical dependence - tolerance and withdrawal symptoms. By definition, the existence of withdrawal episodes - both during treatment and on cessation of her benzodiazepines - means that Mrs Higgins was addicted on her medication. The criteria alluded to in the correspondence of August 1996 (exceeding the stated dose and drug seeking behaviour) are not adequate criteria to dismiss the diagnosis of the dependence syndrome. Over the years Mrs Higgins took the medication prescribed to her by her doctor in good faith at the stated dose. It has been well established in the literature, at least for a decade, that patients can become dependent on benzodiazepines at therapeutic dosage over time. If benzodiazepine dependence and benzodiazepine withdrawal are accepted as an 'injury' then Mrs Higgins did indeed suffer an injury, the cause of this being the repeated prescription of benzodiazepine medications. The prescription of these medications over time appears to have been unchecked. There is no evidence in the medical notes that I have that the possibility of dependence was considered although the prescribing doctor obviously knew (at some point) that the concept of dependence existed (as is evidenced in his 1990 comment about withdrawal)." In its further report of 13th January 1997 the MMAC stated: "The committee has not accepted that benzodiazepine dependence is an injury. It has accepted that withdrawal from benzodiazepines is an injury but it does not therefore follow that the cause of injury i.e. her benzodiazepine withdrawal was the repeated prescribing of benzodiazepine medication, rather it was Mrs Higgins' decision to abruptly withdraw herself from benzodiazepines in 1990 that resulted in personal injury i.e. benzodiazepine withdrawal. Dr Mccormick also in his letter discusses when Mrs Higgins recalls numerous occasions when she would run out of her nitrazepam for one to two weeks at a time. She described flu like symptoms which she stated were either treated conservatively or with antibiotics. Dr Mccormick then states that coincidentally in seeing her doctor she would be represcribed her Nitrazepam with her flu like symptoms subsequently resolving. From this description, Dr Mccormick would consider that Mrs Higgins was dependent on her Nitrazepam at the times that she described these flu like episodes. The Committee has before it a record of the prescriptions for Mrs Higgins as dispenses by Campbell, the Chemist, from 6 January 1976 until the 10 December 1991. The Committee also has the handwritten notes of Dr Harper with respect to the various consultations Mrs Higgins made to him. These are between the March 1983 and the 11 June 1992. While the Committee does not propose to go through the medical records individually, nevertheless we have noted occasions when Mrs Higgins was prescribed antibiotics and perused Dr Harper's medical records for the relevant consultation. We note that on the occasions when antibiotics were prescribed, Dr Harper's notes refer to such conditions as recent dysuria and urinary tract infection, tender uterus and tube of severe pelvic pain prior to periods. Infection in the left index finger with Eurothyrimcin being prescribed and so on. The committee can find little before it that could be described as flu like symptoms to which Dr Harper prescribed antibiotics. Dr Mccormick also states that outright withdrawal occurred over 1990 when Mrs Higgins decided to come off her Nitrazepam. ... Dr Mccormick then sets out a of benzodiazepine withdrawal symptoms and also says that Mrs Higgins considers that she acted erratically during this time. The Committee would note that symptoms by themselves do not give a clinical picture of how Mrs Higgins was at the time she withdrew from her medication. The list of symptoms in themselves, in the absence of any clinical picture which would indicate a definition of either timing and the degree of the symptoms, do not in themselves constitute a physical injury. Furthermore, the committee has no evidence before it of the impairment arising from the withdrawal as there is no contemporaneous reporting by any medical practitioner overseeing her medical treatment at that time. The committee notes that on the 12 July 1990 there is a single reference to the fact that Mrs Higgins is also withdrawing from Mogadon. The committee notes that section 5, subsection I of the Act with respect to medical error, is as failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. Dr Mccormick in his describing of the gamet of withdrawal symptoms that Mrs Higgins described from 1990, states that her personal injury is from benzodiazepine withdrawal. However, the committee has already noted that Mrs Higgins was not under medical treatment and she was not following a medically recommended management of her withdrawal. The committee is not persuaded on the evidence before us that there is sufficient evidence to establish the personal injury as defined by the Act. Accordingly, we affirm our previous recommendation of 12 August 1996 that this claim be declined." The appellant was given the further opportunity of commenting on this report and thereupon submitted a letter from her present GP Dr Simon Carter. In his report dated 21st January 1997 he stated: "Regardless of how Mrs Higgins came to be on Nitrazepam, the monitoring of her usage following this was very poor and it is ironic that the only proper record of her use is obtained by looking at the chemist's records! The point I find most disturbing is that by the early 1980's it was well recognised that benzodiazepines were more trouble than they were worth if used long term (ie. for more than a few weeks at a time) and unless Dr Harper avoided outside contact with the medical profession, I'm sure he would have known of their drawbacks and hence not to try to do something about the patterns of her use thereafter, could well be seen as being negligent and at the very least, poor. management. As for the issue of her dosage. I am not surprised her usage did not climb as she often would be late picking up her script and therefore go through a partial withdrawal thereby allowing the 'same' dose to be effective for her. Had full notes been kept. this pattern would have immediately been recognisably. Without doubt, when patients have been prescribed long term benzodiazepines, the quality of life has been significantly diminished, with loss of enjoyment and reduced senses etc. I have never met a patient yet who, having been on these drugs long term, wanted to thank the doctor for starting them. ... The next point I would like to make relates to the remarks on page 3 of the report dated 13.01.97 from ACC. Namely, 'the committee notes that section 5(1) of the Act, with the respect to medical error is a failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.' I know this was said in conjunction with the opinion that your committee has found that Mrs Higgins' withdrawal constitutes the 'injury' (and that her continued use of benzodiazepines does not!) and that she, not Dr Harper, was responsible for this event and therefore was not eligible for cover under ACC, but as I have stated before, it wouldn't have mattered who oversaw her withdrawal as she would have suffered the same fate." The MMAC received that report and then reconvened and issued its decision on the 25th February 1997 stating: "The Committee has had further discussion of Dr Carter's letter and can understand his frustrations. The Committee, however, has statutory responsibilities which are very clearly defined and must make its decisions in accordance with the statutory provisions of the Act. Personal injury is very clearly defined as a requirement under the Act. Also the Committee must accept the statutory provisions of the Act and in that, with respect to medical misadventure, there must be personal injury which results in either medical error or medical mishap. The personal injury must be an adverse consequence of treatment by or at the discretion of a registered health professional as previously stated by the Committee. Mrs Higgins did suffer a withdrawal syndrome and as such, this constitutes a personal injury however, to fall within the jurisdiction within the Medical Misadventure Committee, this must occur during a treatment by or at the direction of a registered health professional. As previously noted, Mrs Higgins was not under medical treatment nor was she following a medically recommended management of her withdrawal. Again the Committee affirmed its previous recommendation that there is insufficient evidence to establish personal injury as defined in the Act and we again affirm the recommendation of 12 August 1996 that the claim be declined." Acting on the committee's recommendation, the Corporation declined the appellant's claim for cover by letter dated 7th March 1997. The appellant sought as review of that decision and for the purposes of that review a further report from Dr Mccormick was produced. That report states: "I. When I saw her, Mrs Higgins gave me a consistent story of not knowing the risks associated with the ongoing taking of benzodiazepines. 2. In a Committee Discussion Extract, it is stated that benzodiazepine dependence is not accepted as an injury but that benzodiazepine withdrawal is not acceptable because it is stated that the reason for her withdrawal is not the repeated prescribing of benzodiazepine medication, but her decision to abruptly stop the medications. In my opinion, this argument is almost semantic. Mrs Higgins suffered benzodiazepine withdrawal. By definition, she was therefore benzodiazepine dependent. She suffered withdrawal because she was dependent and she discontinued her benzodiazepines. Mrs Higgins claim is further declined because she withdrew herself and did not seek medical oversight at that time. Does this mean that if she had been under medical oversight and she had been withdrawn from her medication more slowly - still suffering withdrawal symptoms albeit severe, that her claim would be acceptable? In this regard, a crucial question would be whether or not Mrs Higgins was ever told by her prescriber that she must never in an unsupervised way, stop her medication. It was my impression when I saw Mrs Higgins last year that this was not the case. 3. In the Committee Discussion Extract it was stated that the gamet of benzodiazepine symptoms outlined by me without a clearer clinical picture, 'do not in themselves constitute a physical injury'. I am not sure of the (additional) clinical picture that would be needed to reach such a conclusion but I would like to reiterate that the symptoms related to me by Mrs Higgins (describing the period after she stoped using her benzodiazepines) were those of benzodiazepine dependence - withdrawal." In his decision the Review Officer stated: 10 "It appears that during all those years Mrs Higgins did not complain to her general practitioner that she was suffering any ill effects as a result of the prescription of Benzodiazepines. ... The presence in Mrs Higgins case of a wide range of reported ill effects having withdrawn from benzodiazepines may therefore be the result of her decision to stop taking the drugs immediately and without the supervision of a registered medical practitioner rather than any dependence on them. ... It seems entirely possible in my view that had Mrs Higgins withdrawn from the drugs in a supervised way then she may have experienced none or few of those reported ill effect. Once again I refer to the article provided to me by Mrs Higgins at the review hearing which indicate that Benzodiazepines should not be stopped abruptly withdrawal symptoms may appear or be more severe. In these circumstances, I do not consider on the balance of probabilities that a personal injury as a result of prescribing Benzodiazepines was suffered by Mrs Higgins. As I noted above, this is a prerequisite to acceptance of a claim for cover under the Act. Without 'personal injury' as that term is defined, there can be no claim for cover." In the circumstances of this claim the appellant would be entitled to cover if she can establish that she has suffered personal injury as a consequence of medical misadventure - section 8 of the Act. Section 4 of the Act defines personal injury as "The death of, or physical injuries to, a person and any mental injury suffered by that person." Section 5 of the Act defines medical misadventure as meaning "Personal injury resulting from medical error or medical mishap." It is not contended that this is a case of medical mishap but rather medical error. That is defined in the Act as meaning "The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely 11 because desired results are not achieved or because subsequent events show that different decisions might have produced better results." It is contended by the appellant that section 5(6) is applicable namely "a failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian, or welfare guardian, as the case may be is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent." In its decision to decline cover the Corporation acted upon the advice of the MMAC, that committee being independently constituted under the Act and regulations and being the body specifically charged with the task of determining whether there has been medical misadventure within the meaning ascribed to that phrase under the Act. That being the case I find that it is not competent for this Court to come to its own separate finding on matters which are wholly within the province of the Medical Misadventure Advisory Committee. It was the appellant's advocate's submission to this Court that it should come to its own view of the matter based on the medical evidence and pay no account to the decision of the MMAC. I reject that submission and reassert that which other Judges dealing with appeals under section 5 have done and have accepted the rulings of the MMAC as they relate to all medical questions and have stated that this Court should only be concerned with matters of law based on the evidence which have been adduced. In circumstances where there is credible expert opinion which purports to be contrary to that which has been given by the committee, then the appropriate course would be to refer the matter back under rule 16 of the Appeals Rules to have the committee given the opportunity of commenting on the contention so raised. In the present appeal there is no such evidence which is at odds with the findings of the committee, rather there is a different view as to the interpretation of what the medical facts as found mean in terms of section 5 of the Act. In this regard I am referring to the opinions 12 expressed by Dr Mccormick as made known to the committee about the appellant's purported addiction and suffering from withdrawal from benzodiazepines. In this regard the committee has found as a fact that there is no evidence upon which it could be determined that the appellant was physically addicted to benzodiazepine drugs. The committee has further found that in any event dependence or addiction to benzodiazepine is not an injury within the meaning of the Act. It does accept that withdrawal from benzodiazepine is an injury but in the circumstances of this appellant it has found that there is no adequate evidence of physical injury to the appellant consequent upon her withdrawal. It has reasoned that there was no contemporaneous reporting to any medical practitioner overseeing her treatment at the time and the committee noted that in fact she was seeing a doctor at regular intervals at this time for other matters. Furthermore the committee found that at the time of her withdrawal from treatment she did so of her own volition without any medical advice or oversight. In that regard the appellant herself accepts that was the state of affairs. Accordingly, in terms of the definition of medical misadventure in section 5 of the Act there cannot be said to be any as the appellant was not under treatment. From her account she seems to have obtained some advice from some ad hoc support organisation described in the evidence as TRANX. In her statement to the Corporation she said "I first became aware in 1990 after watching a Sunday night documentary in regards to be benzodiazepines. I contacted TRANX in Auckland and received information from them. I went cold turkey without knowing the effects of cold turkey." Having regard to the finding of the MMAC, I rule that as a matter of law the appellant has not established an entitlement to cover based on personal injury arising out of medical misadventure. There is no evidence that as a consequence of the treatment by Dr Harper that she suffered any personal injury. The finding of the committee is that there was no evidence at all of any untoward effects of her taking benzodiazepine during the time that it was then prescribed for her. In fact all the evidence pointed the other way namely that it was proving beneficial for her and there were no side effects. It being found that there is no personal injury the question of negligence does not arise. 13 Even if the Court were to accept that the appellant did suffer the symptoms she stated at the time of her withdrawal I find that as a matter of law these consequences even if they be accepted as amounting to personal injury, were not as a result of any treatment by a registered health professional. In fact the appellant embarked on a course of conduct entirely without any such professional advice. Finally I rule further as a matter of law that there is no causal nexus between the symptoms that the appellant says she suffered at the time of withdrawal and the treatment she had been receiving from Dr Harper down to November 1989, being specifically the regular prescription of benzodiazepines. As a consequence of these rulings I find it unnecessary to determine whether there was any lack of informed consent, which has been alleged by the appellant's advocate. The committee itself did not come to any conclusion on this point, it likewise finding that it was not necessary to do so having regard to the primary finding that the appellant could not establish that she had suffered personal injury as a consequence of medical misadventure. For this reason I likewise decline to come to any finding, that finding initially being a medical question and there has been no evidence of an expert nature on it specifically addressing the requirements of section 5(6). Accordingly then this Court upholds the decision of the Corporation and the Review Officer and this appeal is dismissed. DATED at WELLINGTON this 25 day of March 1998 M J Beattie District Court Judge Higgins.doc KD