Sergejew v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 339/2003 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ELVIRA SERGEJEW of Lynfield Appellant (Appeal No. AI 253/03) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 12 December 2003 APPEARANCES/COUNSEL Appellant in person F. Becroft for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether a decision by the respondent dated 31 October 2002 declining the appellant’s claim for medical misadventure was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/339- 2003.doc AE Narrative of Facts [2] In July 2002, the appellant lodged a claim for cover for medical misadventure following a neurological examination by Dr Hayden on 2 April 2002. [3] The allegation was at the time of the examination Dr Hayden used excessive pressure in pressing a key when he was checking her plantar reflex in her left foot. The appellant submits that as a result she developed a plantar fasciitis of her left foot. [4] The appellant’s claim was referred to the Medical Misadventure Unit for further investigation. [5] On 28 August 2002, Dr Svenson, General Practitioner, responded to the Unit’s request for further information advising: “I first consulted Mrs Sergejew concerning her plantar fasciitis on 28.5.2002. Her presentation was fairly classical with pain in left heel on weight bearing, worse on arising in morning and easing off with walking. She was locally tender at plantar fascia insertion at os calcus and was limping. She told me at that time that it started following a plantar reflect examination with Dr Haydon but I did not persue this … The patient definitely has symptoms and signs consistent with plantar fasciitis. Her story of her symptoms starting at the time of plantar reflex examination is consistent and she stated at that time she was nearly reduced to tears with pain while the examination was being performed. I suspect that bruising in the plantar fascia from such an examination could be sufficient to trigger a chronic plantar fasciitis.” [6] The appellant’s General Practitioner initially referred the appellant to Mr Street, Orthopaedic Surgeon, for further expert comment. [7] Mr Street reported back on 5 September 2001, diagnosing the appellant as suffering from planter fasciitis, as well as a mild regional pain disorder. [8] The respondent then sought independent expert advice from Dr Abernethy, Neurologist, and Mr Taine, Orthopaedic Surgeon. [9] Mr Abernethy completed a review which was received by the Unit on 11 October 2002. He stated that in his personal experience he had never encountered 339-2003 2 any complication from a plantar examination. He concluded that a personal injury from plantar reflex examination was highly unlikely to have occurred in this case. He considered that the development of the plantar fasciitis was purely coincidental. [10] Mr Taine completed a report on 16 October 2002, concluding that there was no causal link between the alleged injury and the events as described. He recommended that the appellant’s claim for either medical error or medical mishap be declined. [11] On 31 October 2002, the respondent advised the appellant that her claim for medical misadventure had been declined. [12] On 11 December 2002, the appellant applied for a review of the respondent’s decision. [13] In a review decision dated 1 May 2003, the reviewer dismissed the application, and confirmed the respondent’s decision to decline the appellant’s claim. The Legislation and Legal Principles [14] Section 135 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides: “33 Medical error (1) Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. (2) If the treatment in question is being provided at the direction or under the management of an organisation (other than the Corporation) and the error cannot readily be attributed to a particular registered health professional involved in the provision of the treatment, medical error includes the failure of the organisation to observe a standard of care and skill reasonably to be expected in the circumstances. (3) Medical error can arise in any of the following circumstances: (a) the giving of treatment: (b) deciding whether or not to give treatment: (c) deciding what treatment to provide: 339-2003 3 (d) obtaining consent to treatment from— (i) the person to whom the treatment is to be given; or (ii) the person's parent, legal guardian, or welfare guardian, as appropriate, if the person does not have legal capacity; or (e) diagnosis of a person's medical condition. (4) Medical error does not exist solely because— (a) desired results are not achieved; or (b) subsequent events show that different decisions might have produced better results; or (c) the failure in question consists of a delay or failure attributable to the resource allocation decisions of the organisation.” [15] Section 62 of the Act provides: “62 Decisions on claim for personal injury caused by medical misadventure When actioning a claim for cover for personal injury caused by medical misadventure, the Corporation must either,— (a) in the case of medical error, obtain and have regard to independent advice from a suitably qualified person or body; or (b) in the case of medical mishap, have regard to— (i) independent advice from a suitably qualified person or body; or (ii) information obtained in a similar case or class of case.” [16] This appeal has to meet the requirements of section 33 of the 2001 legislation. The starting point, therefore, will be a consideration of the statutory elements necessary to enable cover. “Medical error” is the failure of a doctor to observe a standard of care and skill reasonably to be expected in the circumstances. Subsection (d) provides that a doctor’s negligent failure to obtain informed consent to treat correctly an insured’s medical condition is a “medical error”. Subsection (4) provides that “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. [17] What has to be proved is the failure of a doctor to observe a standard of care and skill reasonably expected in the circumstances. The statute provides essentially that a doctor is not an insurer concerning desired results, and that what must be taken 339-2003 4 into account is that while with hindsight reasoning a subsequent event might have produced a different decision or a better result, that better result may not necessarily lead to a finding of medical error. The provisions of this Act are similar to the pattern of earlier legislation. [18] Section 62 of the Act requires that the respondent must obtain, and have regard to independent advice from a suitably qualified person when actioning a claim. The insurer has a statutory injunct to have regard to that independent advice. Clearly, while not conclusive, the opinion of the independent doctor or doctors commissioned must be given regard. [19] The statutory regime mirrors to a large extent the situation at common law. It is relevant to consider some of the principles relative to medical negligence enunciated by Courts of high authority. [20] I have had regard to the following cases Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635; Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643; B v Medical Council (High Court, Auckland, 11/96, Elias J, 8 July 1996); and Bolitho v City and Hackney Health Authority [1998] AC 232 and from them the following principles may be stated: (i) Where you get a situation which involves the use of some special medical skill or competence, the test as to whether there has been negligence or not is the standard of the ordinary skilled person exercising and professing to have that special skill. A person need not possess the highest expert skill. It is well established law that it is sufficient if that person exercises the ordinary skill of any ordinary competent person exercising that particular profession. (ii) A person is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular art. Putting it another way around, a person is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion who would take a contrary view. 339-2003 5 (iii) Where the conduct of a doctor is concerned, the circumstances are not so precise and clear-cut as in the normal case of negligence. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one person clearly is not negligent because his/her conclusion differs from that of other professional people, nor because he/she has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. (iv) It is ultimately for the court, not for medical opinion, to decide what was the standard of care required of a doctor in the circumstances of each particular case. The court is not bound to hold that a doctor escapes liability for negligent treatment or diagnosis just because he/she leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. However, such medical evidence is treated with great respect and the circumstances in which the court would disregard this type of the evidence would be rare. However, the evidence tended should always be subject to critical and logical analysis. [21] Error of judgment is not necessarily negligence as was illustrated in the House of Lords case of Whitehouse v Jordan [1981] 1 WLR 246. [22] The case of Maynard v West Midlands Regional Health Authority, is a decision of the House of Lords and succinctly sets out the principles relevant to a finding of negligence concerning a failure to diagnose. Generally, that case is an authority for the proposition that where the defendant can call a reputable expert witness to say on the material available that the witness would have made the same diagnosis a finding of negligence will be difficult to sustain. However, this decision has been read down to a certain extent in Bolitho (supra) for it is the totality of the evidence that has to be looked at with critical analysis and in certain cases despite contrary medical opinion the Court may reach a different conclusion. However, the medical evidence must be given considerable weight in the overall analysis. 339-2003 6 The Medical Reports [23] Mr R. Street, Orthopaedic Surgeon, in a report dated 5 September 2002, said that the likelihood that a plantar examination would produce the sort of pain exhibited by the appellant was small. He had never seen any other patients, or read of plantar fasciitis occurring after that type of examination. He said that he was not present at the examination and could only note that the appellant had told him that the pressure was applied in extreme fashion. [24] He also said that the appellant was more markedly disabled closer to the time of the alleged incident, and more recently her pain had lessened, and was certainly not so severe. [25] Dr D. Abernethy, Neurologist, reported on 11 October 2002. He said that the appellant had related the onset of the plantar fasciitis to a plantar reflex examination by Dr Haydon. [26] In his view, plantar fasciitis is not a recognised or likely complication of a plantar reflex examination. The appellant reported to Dr Abernethy that she was nearly reduced to tears with pain while the examination was being performed. [27] Dr Haydon had described his method of performing a plantar reflex examination, and this appeared standard. Dr Haydon had commented that he would never apply enough pressure to cause bruising of the foot in any way. [28] Dr Abernethy said the issue was whether the plantar examination could have caused the personal injury. He had been in practice as a Neurologist since 1990, and in that time he had never encountered any complication from this aspect of a neurological examination. Dr Abernethy was not aware of any report in the literature describing one. [29] Dr Abernethy concluded that the personal injury from plantar reflex examination was very unlikely to have occurred in this particular case. He similarly did not think that the criteria for medical error had been met. Nor did he consider that the criteria for medical mishap had been met. 339-2003 7 [30] In the view of Dr Abernethy, he considered that the development of the plantar fasciitis and its development was purely coincidental of the plantar reflex examination. [31] He said that he was not present at the examination, and could only rely on the accounts given by the two participants, and of any witness. He thought that if Dr Haydon was regularly performing plantar examinations in a way that led to injury, this would be evident from other claims, and he assumed that there were none. [32] Dr Abernethy considered the medical literature, and a Medline search, and in 157 articles on the plantar response, there was only a letter to the Editor by a retired paediatrician commenting on how unpleasant it was to experience this type of examination. There were no reports, however, of injuries resulting. [33] Mr Taine, Orthopaedic Surgeon, reported on 16 October 2002. He set out the history of the matter. [34] He said that the appellant had seen Mr Street, Orthopaedic Surgeon, in Auckland on 5 September 2002, who noted that she had bilateral problems, worse on the left, and that the pain had improved since the initial presentation. [35] His findings included tenderness over the fascial attachment to the calcaneus, but also tenderness over the plantar fascia distally. Xrays were reported as showing a prominent calcaneal spur. Treatment was initiated with orthoses. [36] Mr Taine said it was difficult to establish if physical injury had occurred as a result of the medical treatment. Plantar fasciitis is not an uncommon disorder, in a range of age groups, and an examination of the plantar reflexes is an extremely common undertaking in medical practice. [37] He said that as Mr Street had stated in his letter, a link between the development of plantar fasciitis in such an examination had not been demonstrated in the past. Plantar fasciitis is due to inflammation usually at the attachment of the plantar fascia to the calcaneus and as the result of tension on the ligament. It seemed unlikely that the plantar fascia itself would be damaged or disrupted by a plantar reflex examination, in which the sole was stimulated from the heel moving towards the toes to elicit a withdrawal reflex, demonstrated by the toes moving into flexion. 339-2003 8 This would be in line with the fibres of the plantar fascia and therefore unlikely to cause disruption. [38] Mr Taine thought, given these considerations on a balance of probabilities, that the alleged injury could not be attributed to the treatment received. [39] In respect to the issue of medical error, Mr Taine thought that there had not been a failure of a registered health professional to observe a standard of care and skill reasonably to be expected. The performance of a plantar reflex examination was an appropriate part of the assessment as carried out by Dr Haydon. Patients could vary in the degree of sensitivity on the sole, and judgment regarding the amount of pressure required to elicit the reflex was essentially subjective. Accordingly, Mr Taine did not think that medical error had been established. [40] In respect to the issue of medical mishap, Mr Taine did not think it could be established having regard to the issue of causation. The Medical Report of Dr R.K. Haydon [41] In a medical report dated 3 September 2002, Dr Haydon commented on the allegations made by the appellant. He said that he understood that the appellant was claiming that he had used excessive pressure from the instrument used checking her plantar reflex, which was a key. He said in turn it was alleged that the plantar reflex examination had caused her to develop a plantar fasciitis of her left foot. He said he understood that the appellant was claiming excessive force, and that this was the cause of the problem. Dr Haydon said he had not seen her since that time, so her complaint had come as a complete surprise. [42] Dr Haydon said that the plantar reflex was a very minor part of the examination. He said in his own defence that he did not use excessive force when doing the plantar reflex examination. He usually started with a light scraping of the sole of the foot and gradually increased it until he saw which direction the toe was pointing. Dr Haydon said the sole of the foot could be very sensitive at times and even a minor scrape could be recognised by the patient as being rather excessive. Dr Haydon was of the view that he had never used enough force to cause a plantar fasciitis. 339-2003 9 [43] Dr Haydon could not conceive in any way that the doing of the plantar reflex examination could ever cause a plantar fasciitis, and if indeed the appellant had a plantar fasciitis, then he thought it must be an incidental event totally unrelated to his performance of his examination. He said certainly he would never cause enough pressure to cause any bruising of the foot. The Case for the Appellant [44] The appellant submitted that since the car accident in 1987, she had been referred to various specialists. Examinations of sensory reflexes often included the Babinski test, which was done in a gentle manner and was never painful. She claimed that when she attended on Dr Haydon on the particular day she found him to be tense, upset and curt. When he did the test on the sole of the foot he used something sharp and hard, apparently a key. She said she felt excruciating pain and complained, but he said nothing. She believed that due to the state he was in he did not realise how forcefully he had applied the key. [45] She had never had any problems with her feet, but after the examination it was very painful to walk. [46] Dr Svenson, her local General Practitioner, prescribed some pain killers and later a cortisone injection. [47] The appellant produced research that she had done on the subject of plantar fasciitis, all of which indicated there was no need for a forceful pressure with a key. The appellant said that the independent advisers were not present at the examination, and therefore could not consider the circumstances of the examination or the force exerted. The Respondent’s Submissions [48] The respondent first submitted that it was necessary for the appellant to identify a physical injury which had been sustained as a result of the alleged medical misadventure, either by medical error or medical mishap. [49] The respondent submitted that the onus on a probability basis was on the appellant to establish a causal link to the alleged medical treatment and the ensuing 339-2003 10 disability. Further, the respondent submitted the appellant had failed to prove the criteria for either medical mishap or medical error. [50] The respondent submitted that it was important to have regard to the independent medical advice on these particular issues, and that such medical advice and opinion should be given considerable weight. [51] The respondent submitted that the appellant had not provided any medical evidence to support her claim, and the claim was based solely on the temporal association between the onset of her symptoms and the neurological examination. [52] The respondent submitted that in the absence of supporting medical evidence, a temporal association between symptoms and the examination was insufficient to satisfy the test predicated under the legislation. Both experts who had provided opinion in this case were aware of the temporal association, but their continued view was that there was no causal nexus between the symptoms and the neurological examination. The Review Hearing [53] In a review hearing dated 1 May 2003, the reviewer upheld the decision of the respondent dated 31 October 2002 to decline the appellant’s claim for cover. [54] The appellant gave evidence in front of the Review Officer. [55] The reviewer held that the onus was on the appellant to establish on a balance of probabilities that she had suffered personal injury by medical misadventure, and that such personal injury had been either caused by medical error or medical mishap. [56] The first element that the appellant had to establish was a causal connection between the treatment and the symptoms from which she was complaining. [57] Dr Svenson and Mr Street, Orthopaedic Surgeon, were both of the opinion that the appellant had plantar fasciitis. However, Mr Taine, Orthopaedic Surgeon, believes the likelihood that a plantar examination would produce the sort of pain experienced by the appellant was extremely small. 339-2003 11 [58] Both Dr Abernethy, Neurologist, and Mr Taine, Orthopaedic Surgeon, were unable to ascertain a causal link between the neurological examination and the plantar fasciitis. [59] In addition, both these two doctors were of a view that there was no evidence to support either medical misadventure or medical mishap. [60] Accordingly, the Review Officer reached a decision that the review application of the appellant should be declined. Decision [61] The appellant was unrepresented at the appeal hearing and I have considerable sympathy for her and to this end I have endeavoured to see that she has not been handicapped by not having counsel. I have tried to analyse in some detail the submissions put forward by the parties, and test her allegations against the factual background, including the extensive medical literature, which she provided me. In particular I weigh the temporal coincidence between the medical examination and the ensuing onset of the condition from which she now complains. [62] I have endeavoured to balance the written medical materials along with that coincidence against the firm opinions of the independent medical specialists. Apart from the opinion of her general practitioner, who suspected that the bruising in the plantar fascia could trigger a chronic plantar fasciitis, there was no other medical opinion called that supported her claim. Indeed, the body of the medical opinion presented was against a causal connection between the examination and the ensuing plantar fasciitis. [63] I acknowledge that in certain cases a strong inference may be drawn from temporal coincidence, but that inference may be displaced by other cogent evidence. The evidence of Dr Haydon and his description of the type of examination has to be balanced against that of the appellant. In addition, the evidence of Dr Abernethy and Mr Taine as to the unlikelihood of the examination causing the plantar fasciitis has to be weighed in the overall balance. [64] I come to a conclusion after a consideration of all the evidence that the appellant cannot, on a balance of probabilities, establish a causal link between the examination and ensuing condition of plantar fasciitis. In addition, the appellant has 339-2003 12 not established the necessary criteria necessary to ground a claim for medical error or mishap. [65] For the reasons that I have given I would dismiss the appeal. There will be no order for costs. DATED at AUCKLAND this ……22nd….. day of ………December….….. 2003 (J. Cadenhead) District Court Judge 339-2003 13