Peddie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT INVERCARGILL Decision No. . 16 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ESME PHYLLIS PEDDIE of Invercargill Appellant (Appeal No. DCA 32/96) 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 December 1996 APPEARANCES Appellant in person assisted by Ms J Milne Mr T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has suffered a medical misadventure under s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992 as a result of inappropriate prescription of the various medications. The appellant lodged a claim with the respondent on 5 May 1995 in which she stated that she had suffered personal injury by "Medical Misadventure. Medication which was inappropriate to and had no bearing on the complaint for which I had consulted my doctor and the devastating and distressing long-term trauma these drugs engendered". The appellant's then general practitioner, Dr Talway gave as his prognosis "? drug induced illness". 2 When the claim was received, the respondent requested Dr Pottinger, who had been the appellant's general practitioner since 1963, to provide it with details of his attendances with her. In the result he submitted a report which referred to consultations since May 1963 through until 1990. These details appeared to have been taken from his records and described the various complaints which she made on each occasion and the nature of the treatment which he prescribed. In addition, the appellant had made a complaint to the Medical Practitioners Disciplinary Committee in 1992 regarding her concerns about the prescription medicines provided to her by Dr Pottinger. In a letter of 5 March 1992 Dr D C Williams, Chairman of the Committee, advised the appellant: "I refer to your correspondence and to that of the Committee relating to your grievance about the conduct of Dr Pottinger. I have read with care your letters and that of Dr Pottinger. I note that your concern relates to the effects which you have experienced following administration of various medicines prescribed by Dr Pottinger. I have reviewed both the medicines prescribed and the does levels. Whilst I accept that you may have experienced some side effects from some of these medications, I am of the opinion that both the medicines prescribed were appropriate to the symptoms of which you were complaining at the time, and that the does levels were low and certainly not high enough to harm your health. In the circumstances I have determined that there are not grounds for formal enquiry by this Committee in terms of Section 42A of the Medical Practitioners Act." The respondent was able to obtain a full record of numerous consultations and reports concerning referrals by Dr Pottinger to various specialists because of the complaints made by the appellant. Her principal concern was a problem with her jaw and her inability to wear her false teeth. It is interesting to note an opinion by Mr A E Macfie, a physician and neurologist, written on 7 August 1986 to the appellant's then general practitioner, Dr Snow. He gave as his opinion: "I pointed out at great length to the patient there could be no focal source to account for the wide variety of her symptoms. I stated that I had no doubt that there had been problems as regards the fitting of her dentures, but the present problem was one that related to the psychological effects of her obession (sic) with non existent dental pathology. After a great deal of explanation and discussion with both the patient and the husband I explained that she has now reached he (sic) stage of a very vicious cycle fo (sic) continued painful and obsessional though that needs to be broken with fairly vigorous tricyclic therapy. To this end I have started her on Chlomipramine 10 mg nocte for five days, increasing 20 mg nocte thereafter. I have asked her to consult you after two weeks to further increase the does as necessary. I have explained to her that it will take at least two weeks before she notices any significant improvement. I was fortunately able to contact Peter Christmas, our local oral dental surgeon, who kindly agreed to assess Mrs Peddie this afternoon at Kew. I explained to him that I felt that her features did not relate to any physical or organic disease, but 3 would nevertheless appreciate his opinion, particularly as regrds (sic) any evidence of minor mandibular dislocation. I have spoken to him verbally later today and he has not found any organic pathology." In another report of 14 October 1983, Dr E A Mccusker, a neurologist also reported to Dr Snow that it was her opinion that: "I think the major problem with her jaws now is osteoarthritis of the temperomandibular joints and she also appears to have evidence of osteoarthritis elsewhere, in particular, the hands, knees and by history, probably the neck and shoulders. I am uncertain as to the nature of the episode following the second course of injections, but feel that she may have had a mild allergic reaction, or a panic episode following this. I have asked that she have an x-ray done of the temperomandibular joints, the results of which will be forwarded to you. With regard to her dentures, I wonder whether she would not benefit from referral to the dental school. At this point, I have endeavoured to reassure her. She is somewhat phobic about medications, but I wondered whether she might abtain (sic) some benefit from one of the nonsteroidal, antirheumatic medications, although I have not prescribed this at this stage. I have not arranged to see her again but would be willing to do so, should you feel it necessary." There are numerous similar reports on the file all of which were referred by the respondent to its Medical Misadventure Advisory Committee. That Committee advised the appellant prior to making its decision that it had had regard to the various reports on the file and detailed them for her. In its decision the Committee noted that the issue arose out of the fact that the appellant had consulted Dr Pottinger on many occasions between 1976 and 1990 with complaints of a jaw problem which precluded her from wearing her dentures. She claimed that her jaw was "over one side", while Dr Pottinger believed she was obsessed with her jaw and in response prescribed her a range of various drugs. At the same time Mrs Peddie had consulted various specialists none of whom were able to assist her with her problem. As the discussion before the Committee outlines the nature of the medication provided and its findings I consider that it is appropriate that I should include a full copy of the Committee's discussion and its findings which is: "DISCUSSION: This claim relates to an allegation that medication prescribed by Dr David Pottinger has led to devastating and stressful long-term trauma. The Committee has before it reports from Dr Pottinger and also has the replies to a claim Ms Peddie lodged with the Medical Practitioners disciplinary Committee in 1992. 4 Dr Pottinger stated Mrs Peddie has been a patient of his since May 1963. He had seen her at various times for various complaints. In 1973 he prescribed valium 5 mgs/night, 25 only. On 28 October 1976, Mrs Peddie presented to him with problems with her lower jaw which she said was over to one side. He started her on Sinequan 25 mgs/night and valium 2 mgs 3 x daily, the latter for 10 days only. Some two weeks later, on 8 November 1976, he again saw Ms Peddie and asked her to continue Sinequan at night with occasional Oxasepam when she was unable to sleep. One week later her added Largactil at night. Again, some two weeks later on 29 November 1976 he stopped all medication. Nearly two years later, on 25 July 1978, Dr Pottinger prescribed Soneryl 100 mg at night for sleep, 12 tablets only. On 31 October 1978, after a week on Ativan at 1 mg 3 x daily, she felt better. She continued taking Ativan 2 x daily for 1 month and then from 5 December 1978 took only 1 at night. On 8 March, some three months later, Mrs Peddie stated she would never take another pill. On 15 September 1988 Dr Pottinger prescribed Serenase liquid 2 mys per 1 ml does which was a 15 ml dose 5 drops in the mouth 2 x daily. Ms Peddie took one does of 5 drops which she reported as jerking her tongue out, so she did not take any more. Dr Pottinger believes the prescribing was appropriate, the amounts were small and he does not accept that they are responsible for the conditions which Ms Peddie describes. The Committee has before it the response of Dr Williams from the Medical Practitioners Disciplinary Committee. He has reviewed the medicines described and the does level and that there were some side-effects from those medications. However, the prescribing was both appropriate to the symptoms of which Ms Peddie complained at the time, and the dose levels were low and not night enough to harm Ms Peddie's health. The Committee has carefully considered the evidence of Dr Pottinger and the reports from Ms Peddie. We have been unable to establish that Ms Peddie has suffered a personal injury in terms of the 1992 Act. What prescribing was done, was appropriate to the symptoms and at appropriate levels. There is no evidence before the Committee to establish that Ms Peddie has suffered a personal injury. Our recommendation therefore is that this claim be declined to become final after 15 working days. ACTION REQUIRED: The proposed advice of the Committee is that cover be declined, as neither medical error nor medical mishap have occurred. This advice to become final advice following the 15 day consultative period, should no evidence to the contrary come to light. FINAL ADVICE: No new relevant information has been received that challenges the Committee's finding, therefore proposed advice is confirmed, and final advice is that cover be declined as neither medical error or medical mishap has occurred." As a result of that recommendation, the respondent notified the appellant on 12 October 1995 that her claim for cover was declined. The appellant applied for a review of that decision. At the review hearing the appellant was represented by her advocate Mrs A de Jong who provided numerous excerpts from various journals in relation to the effects of various medications and the problems which could arise from over-medication in respect of those drugs. The appellant's advocate also submitted that in her view having regard to the articles which she had submitted to the review officer, the appellant suffered Tardive Dyskenesia. It was also submitted on the appellant's behalf that she was entitled to cover because of the failure of Dr Pottinger to properly advise her of the possible effects of the various drugs which he had prescribed with the result that she had not given her informed consent to the treatment he provided. The review officer concluded that there was no evidence which supported the claim that there was a lack of informed consent. In his view, there was no evidence which could support the claim that Dr Pottinger had acted negligently in failing to obtain the appellant's consent to the treatment he gave. The review officer also held that on the basis of the findings of both the Medical Misadventure Advisory Committee and the Medical Practitioners Disciplinary Committee that the medication prescribed by Dr Pottinger was appropriate for the symptoms of which the appellant claimed and that the dose level could not have been injurious to her health. The appellant appealed against that decision At the appeal hearing the appellant provided a long submission prepared by Mrs de Jong who was unable to be present for the hearing. That submission again refers to the various medications prescribed by Dr Pottinger and refers to the articles which the appellant had submitted to the review officer as to the possible side effects of over-medication of those particular prescriptions. While the submissions refer to the appellant's complaints that Dr Pottinger had not provided full details of his attendances upon her and various complaints as to other medical reports on the file, there is no evidence from the appellant which contradicts those reports. The appellant submitted that the report provided by Dr Pottinger as to the nature of his prescribing was inaccurate and omitted various drugs. She then submitted "no fair and honest decision can be arrived at with the medical evidence provided. I ask that my claim be considered on the true facts. This is my basic right." The appellant also made submissions on the nature of the lack of informed consent, but gave no details as to what occurred between herself and Dr Pottinger. 6 The appellant also made submissions regarding the nature of medical negligence and medical error, but relied on decisions in relation to medical misadventure under the Accident Compensation Act 1982. In addition, the appellant provided by way of further medical evidence a report from Dr James S Howard III, a consultant psychiatrist for Southland Hospital which is dated 15 October 1996 and states: "This is to certify that I have reviewed the Psychiatric Records of this patient and interviewed her both alone and with the Mental Health Director. From this information some primary statements can be made: 1. This patient appears to be quite stressed, upset and anxious over her past Psychiatric Records dating back to 1976 which were provided to her by the Mental Health Act, specifically she voiced concern that she was placed on neuroleptics without her consent and that these neuroleptics caused her several episodes of Transient Dystonia. The patient also voiced concern that her previous General Practitioner apparently restarted her on one of these medications with a similar adverse affect and that she is in some process of action in this regard from the perspective of therapeutic misadventure. 2 . After careful evaluation of the physical state of this individual it was clear from both examining physicians that this patient shows no persisting movement disorder symptoms of Dystonia, at this time, including lack of fascicularions of the tongue. It is hoped that this information will be of use to you and if we can be of further help in this matter, please do not hesitate to call or write. This letter was written per the patient's request." Mr Cleary submitted that the issue falls to be decided under s.5 of the 1992 Act and that the submissions made by the appellant in relation to what constitutes medical misadventure under that Act were misconceived and applied to the provisions of the 1982 Act. He submitted that in order to qualify for cover under the 1992 Act the appellant must demonstrate that she has suffered personal injury as defined by s.4 of the Act as a prerequisite to a finding that she has suffered medical misadventure. In his submission the review officer was correct in holding that the appellant had not demonstrated that under the definition in the 1992 Act she had suffered personal injury. He submitted that in support of this that Dr Talway was not convinced in his diagnosis that the appellant had suffered personal injury as a result of over-prescription of drugs and that Dr Howard was not able to certify that the appellant was suffering personal injury from the over-prescription. Mr Cleary also submitted that the review officer was correct in finding that there was no evidence that Dr Pottinger negligently failed to obtain the appellant's informed consent to the taking of moderate doses of the prescribed drugs. As the claim was not lodged until May 1995 it falls to be decided under the 1992 Act. Section 5 of that Act deals with the question of medical misadventure and states: 7 "5. Definition of 'medical misadventure'- (1) For the purposes of this Act, - 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. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results: Medical mishap' means an adverse consequence of the treatment by, or at the direction of, a registered health professional, properly given, if - (a) The likelihood of the adverse consequence of the treatment occurring is rare; and The adverse consequence of the treatment is severe. (2) For the purposes of the definition of the term 'medical mishap', the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured - ( a) Was known to that person; or (b ) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be, - prior to the treatment. (4 ) For the purposes of the definition of the term 'medical mishap', the adverse consequences of treatment are severe only if they result in death or- (a) Hospitalisation as an inpatient for more than 14 days; or (6 ) Significant disability lasting for more than 28 days in total; or (c) The person qualifying for an independence allowance under section 54 of this Act. (5) Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless medical error or medical mishap occurred at the time of the procedure. (6) 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. (7) Medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent. (8) Where personal injury to a person results from medical error or medical mishap that occurs in a clinical trial, that personal injury shall constitute medical misadventure only where - 8 (a) The trial - (i) Has been approved by an ethics committee approved by the Health Research Council or the Director-General of Health; and (i1) The ethics committee has certified that it is satisfied that the trial is not conducted principally for the benefit of the manufacturer or distributor of the medicine or item in respect of which the trial is carried out; or The person has not agreed in writing to participate in the trial. (8A) For the purposes of subsection (8) of this section, the term 'treatment' includes anything done or omitted as part of a clinical trial. (9) The Corporation, - (a) In making any decision under this section in relation to any claim for cover under this Act that is claimed to be based on personal injury resulting from medical error, shall obtain and have regard to independent advice in accordance with procedures prescribed by regulations made under this Act; and (6 ) In making any decision under this section in relation to any claim for cover under this Act that is claimed to be based on personal injury resulting from medical mishap, may be obtained and have regard to independent advice in accordance with procedures prescribed by regulations made under this Act. (10) Where the Corporation considers that medical misadventure may be attributable to negligence or any inappropriate action on the part of a registered health professional it shall - (a) Give the registered health professional a reasonable opportunity to comment on the matter; and (b) If satisfied that there may have been negligence or inappropriate action - report the circumstances to the appropriate body with a view to the institution of disciplinary proceedings, and to any other body that may be appropriate. (11) For the purposes of section 9(2) of this Act, the term 'registered health professional, in this section, includes a person who has qualifications equivalent to those of a registered health professional in New Zealand. Section 4 which defines personal injury under 1992 Act states: "4. Definition of 'personal injury' - ( 1 ) For the purposes of this Act, 'personal injury' means 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, and has the extended meaning assigned to it by section 8 (3) of this Act. (2) For the purposes of this Act, no cardio-vascular or cerebro-vascular episode shall be regarded as personal injury unless - ( a) It is a result of medical misadventure; or b) It is a work injury by virtue of section 6 (1) of this Act." 9 I am concerned at the appellant's submission that there has been a failure by Dr Pottinger to disclose all details of his attendances upon the appellant and the medication he provided. Very full details of numerous reports and examinations of the appellant from specialists in a number of fields are on the file and were considered by both the Medical Practitioners Disciplinary Committee and the respondent's Medical Misadventure Advisory Committee with the result that both those bodies were convinced that the medication prescribed by Dr Pottinger was at the time of prescription moderate in quantity and appropriate for the then problem of which the appellant complained. The only way in which an appeal of this nature can be considered is on the medical evidence which is available on the file and if the appellant disagrees with that evidence then the onus is on her to provide support for the claim which she makes. I do not consider that the report from Dr Howard takes the matter any further and it appears that the diagnosis of Tardive Dyskenesia has been made by Mrs de Jong on the basis of her knowledge of the possible side effects of over-medication of some of the drugs prescribed by Dr Pottinger for this appellant's problems. There is certainly no medical support for that diagnosis. The starting point in a claim for medical misadventure under the 1992 Act must be that the appellant has suffered a physical injury. There is absolutely no evidence from which it can be established that the result of the prescriptions provided by Dr Pottinger have caused the appellant a physical injury. The problem which initiated the complaint has been the problem with her jaw which she complained precluded her from wearing her dentures. These complaints appear to have become more and more vivid to the appellant who had to be recommended for other treatment because of the apparent failure of the treatment prescribed by Dr Pottinger. None of the reports in any way indicates that the prescription of the medications has caused the appellant a physical injury. As I have already said, I agree with the review officer that there is no evidence which indicates that Dr Pottinger negligently failed to obtain the appellant's informed consent. The appeal is dismissed. DATED at WELLINGTON this 5thday of february 197 gunnadub A W Middleton District Court Judge dca32-96.doc(rd)