Estate of Wooding v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON Decision No. [2014] NZACC 217 UNDER the Accident Compensation Act 2001 (the Act) IN THE MATTER of an appeal under Section 151 of the Act BETWEEN ESTATE OF D E WOODING (ACR 379/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard: At Auckland, Tuesday 2 September 2014 Court: Judge J A Smith Appearances: Ms S Wooding for Estate of Dennis Edwin Wooding is excused (pursuant to an earlier ruling of Powell DCJ) Mr D Tui for the Accident Compensation Corporation (the Corporation) Judgment: 15 September 2014 RESERVED JUDGMENT OF JUDGE J A SMITH A. There were delays in attending to Mr Wooding at both Gisborne and Waikato Hospitals. B. Some of those delays, in particular the inability to utilise the CT scan and the unavailability of several fixed-wing planes to fly Mr Wooding to Waikato Hospital were allocation decisions and thus excluded from consideration pursuant to Section 32(2)(b) of the Act. C. Although there were failures to provide treatment in a timely manner, these were either due to allocating decisions, and thus excluded above, or were relatively minor in nature. D. In the circumstances, no failure to provide treatment caused personal injury to Mr Wooding, and accordingly, no treatment injury pursuant to Section 32 has occurred. D. Costs are reserved. Any application for costs to be filed within 20 working days; reply within 10 working days; final reply a further 5 working days thereafter. REASONS FOR DECISION Introduction [1] Mr Wooding died on 14 November 2010 at the Waikato Hospital after arriving at Gisborne Hospital at 8.15pm on 13 November 2010 and subsequent transfer to Waikato on the morning of 14 November arriving at around 5.00am, but with deterioration to death after 7.00am. [2] A copy of the timeline is annexed hereto as Annexure A, which I understand generally represents the timing in the matter. [3] Mr Wooding died of a dissected aneurysm identified as a contained rupture of an ascending and thoracic arch aneurysm with a cardiac tamponade, described as a rare event. [4] The issue for this appeal is whether there was a treatment injury under the Act. BACKGROUND [5] Mr Wooding was admitted to the hospital complaining of chest pains. As is noted in the events that followed, there was an inability to undertake a CT scan at the Gisborne Hospital as it was in the process of being replaced. Correspondence makes 2 it clear that this was a decision made by the management of the hospital, which meant that there was no CT scanner available at the hospital for around one week. [6] Subsequent discussion with the Waikato Hospital led to an arrangement for referral, understood to be accepted by Dr Toner as the vascular registrar between 10.30 and 11.00pm. [7] Subsequently the Waikato ICU team had assembled and departed for the Hamilton airport. There was a delay due to the fact that two planes utilised for such purposes were unavailable because of technical or servicing reasons. A plane was therefore required to fly from Fielding to Hamilton to pick up the ICU team and then fly to Gisborne Airport. [8] The ICU team arrived at Gisborne Hospital at around 2.10am. Mr Wooding was then prepared and the transfer flight commenced at around 3.15am. [9] There are delays in the flight from Gisborne to Hamilton, due in part to fog, with the plane eventually landing at around 4.30am. Upon arrival at the hospital around 5.00am there was some confusion and delay while various parties are contacted. Mr Wooding was not referred for the necessary CT scan until around 5.50am. [10] Upon completion of that scan it appears that an aneurysm of the proximal aortic arch and mediastinal haematoma in the right pleural effusion were identified. At that stage it was decided that the cardiothoracic team and not the vascular team would need to manage the patient due to the position of the aneurysm. [11] Mr Wooding developed further pain around 7.00am and deteriorated, with CPR ceasing at 7.40am before the emergency team had assembled. The Accident Compensation Act 2001 [12] Ms Wooding, acting on behalf of the administrator of the Estate, has made a number of complaints, including to the hospital, the Health & Disability Commissioner, the Ombudsman, and had sought a Review on an ACC claim and now appeals in respect of that decision. [13] Ms Wooding resides in Australia and may not be familiar with the New Zealand Accident Compensation Act 2001. I very briefly outline the Act. 14] The Act substitutes for any right to sue for personal injury in New Zealand and is a crystalline code which sets out the obligations of the Corporation to meet payments for personal injury in relatively clear terms. Only decisions of the Corporation under relevant sections can be appealed by way of Review, and then appeal to this Court. This includes, relevantly, decisions in respect of coverage. [15] The Court's powers on appeal are restricted to dismissing the appeal, modifying the Review Decision, or quashing the Review Decision. If it quashes the Review decision it has obligations to indicate the effect clearly. [16] Section 151 of the Act clearly envisages that there will be an open hearing of the appeal. Where both parties agree, the Court might consider the application on the papers, but otherwise under Section 153 of the Act it is obliged to issue a Notice of Hearing, including a place of hearing. [17] The Court does not have general powers of investigation, nor powers to go beyond the scope of the Review Decision, the subject of the appeal. I note that Ms Wooding seeks reimbursements of legal costs to date, compensation to the widow, children and others for pain, suffering and anguish, and other matters, such as apologies and the like. None of these powers are available to this Court and it is simply constrained to deciding the appeal and deciding any application for costs relating to the particular appeal. [18] In the circumstances of this case, I have noted that there has been extensive correspondence (running into many hundreds of pages) between the various parties and Ms Wooding. The Review Decision concluded that there were some delays in treatment, but considered that there was no injury established. Given that there was no appeal by the Corporation from the reviewer's decision, and this aspect of the Review Decision is accepted by the appellant, it is therefore presumed that there were delays. These fall into two types: [a] Allocating delays; and [b] Treatment delays. Allocating Delays Unavailability of the CT scanner [19] Section 32(2)(b) of the Act provides: (2) Treatment injury does not include the following kinds of personal injury: . . . (b) personal injury that is solely attributable to a resource allocation decision 20] Accordingly, when an injury occurs due to an allocation decision, it is explicitly excluded from cover. In this case this must include a delay in treatment due to that decision. [21] The key delay in this case was the unavailability of a CT scanner at Gisborne Hospital. As is well traversed in correspondence from the CEO and other parties, the decision to replace the CT scanner was made by the hospital management and this meant that there was a period of some 7 days when no CT scanner was available. Accordingly, that delay is not covered under the Act. Unavailability of fixed-wing aircraft [22] The arrangement between Gisborne and Waikato Hospitals was such that fixed-wing aircrafts were preferred for flights over 250kms, as in this case, given a preference for pressurised aircraft and room for accommodating a team. That is an allocation decision, and made on a reasonable basis. Furthermore, the unavailability of two fixed-wing aircrafts because of technical or servicing reasons, is an allocati decision made by the supplying company. It certainly could not be argued that anyone should fly an aircraft when it is not fully serviced as it is particularly important in respect of this type of emergency medical flight. Excluded Delays 23] It is clear that those two decisions led to considerable delays. The unavailability of a CT scan meant that a diagnosis could not be obtained until Mr Wooding was referred to Waikato Hospital where they undertook the scan. Until that scan was completed it was unclear whether a cardiothoracic team or a vascular team would need to be utilised to attend to Mr Wooding. Possible scenarios meant that either a ischaemic attack or an aneurysm could lead to either of the teams to be utilised. This in turn led to confusion as to who the referring specialists were. That delay was entirely occasioned by the decision to replace the CT scanner at Gisborne Hospital. [24] In the circumstances, if a diagnosis had been able to be made in Gisborne before the flight, it is likely that at least an hour, if not more, could have been saved by avoiding the necessity of referring Mr Wooding for a further CT scan. That decision is outside the scope of the Act, and accordingly this Court is unable to take it into account. [25] The subsequent delay due to the unavailability of an aircraft and the reason for it is difficult to ascertain in time, but it may have been something in the order of 30 minutes to one hour or so. The timeline which indicates the contact time of 10.30pm to the time of leaving Hamilton Airport at 12.45am may in part be attributable to the need to call in another aircraft. However, the exact extent of that is difficult to know, given that the transport team did not leave Waikato Hospital until nearly midnight. Accordingly, it appears that the aircraft may have left Hamilton Airport about the time that the transport team arrived, given that it left at 12.45am. 26] However, any delay that may have occurred due to that was again given entirely to an allocation decision which cannot be taken into account in terms of the Act. Delay due to Fog [27] The third delay was due to fog. Again, it is difficult to know how much time was involved in this, but one would have assumed that the aircraft could have landed normally within 30 minutes of its departure from Gisborne. [28] The arrival some 45 minutes later may be, in part at least, attributable due to fog and the difficulty of landing. Again, this delay is one that is not due to any form of treatment, but is simply a natural and unavoidable delay due to weather conditions Other Delays 29] There was clearly some confusion as to which team was appropriate for consideration of this patient. There seems to have been an unfortunate failure of information handover between Dr Nova and Dr Toner, and it may be that the aircraft did not pre-contact Waikato of their arrival. Whatever the reason, there seems to have been a delay in the order of 10 minutes or so while the correct specialist, Dr 6 Toner was located, and some further delays of perhaps some 15 or 20 minutes due to this confusion relating to the patient's unexpected arrival at Waikato Hospital. [30] Nevertheless, Mr Wooding was still referred for a CT scan at around 5.50am. In total it seems to me that this might have occurred some 15 - 30 minutes earlier, and I acknowledge that this is accepted by the Review Officer as being a failure on behalf of a medical practitioner in delaying treatment. 31] There is a great deal of discussion concerning Dr Nova as Registrar for the cardiac team. In the end, Dr Nova's non-attendance does not seem to have delayed any attendances beyond the initial handover already discussed. Treatment Delays Did the treatment delay cause personal injury? 32] Cases such as Sheppard v ACC discuss questions of causation in relation to treatment injury. That case reaffirmed ACC v Ambros' that there was a need to prove actual causation. [33] In a case such as this, the potential personal injury is clear, that is that the patient died. The question therefore is whether earlier intervention would have resulted in a different outcome. That outcome is not to be a mere probability, but to be a real or good probability.3 [34] However, overall I would suggest that the test for this Court is that it must be satisfied (on the balance of probabilities), that if a medical practitioner failures identified had not occurred, this would have led to a different outcome for Mr Wooding, that is, he would have survived the incident. [35] In this regard there are several telling issues counting against that argument such as: [a] The significant delays are ones which are excluded by the Act, and accordingly, cannot be taken into account; ' Estate of Ian Sheppard v Accident Compensation Corporation, [2013] NZACC 117 Accident Compensation Corporation v M Ambros, [2007] NZCA 304; [2008] 1 NZLR 340 (CA) See Sheppard at [30] - [37] [b] The treatment delays led to a delay of around 30 minutes, which would have meant that Mr Wooding's diagnosis would have been available at 6.00am rather than at 6.30am. Given the 60 - 90 minutes needed to assemble the relevant emergency team, Mr Wooding would have still been in complications and then arrest by the time the team had been assembled; [c] I note in particular that the hospital were unable to decide which team should undertake any operation until a diagnosis had occurred after the CT scan. In reaching this conclusion I am making an assumption that the hospital would have operated, yet there was no certainty that the operating team would have intervened once Mr Wooding had gone into complications and arrest; [p] The prognosis for this injury is particularly poor, with fatality rates at around 50 - 70% where operations can be undertaken quickly. Otherwise they are essentially fatal; and [e] I am satisfied that by the time of Mr Wooding's complications at 7.00am the aneurysm had fully dissected and fatality followed. Discussion 36] May I say in reaching these conclusions that case law (including the cases already mentioned) makes it clear that I am to take into account all of the information and circumstances (and there are dozens of reports), medical advice and other information, and reach a robust conclusion on the facts. [37] In short, at the time of admission at around 10.15pm on 13 November, Mr Wooding's condition was desperate. Even if he had been in a main centre, and even if he had been diagnosed and an operating team assembled quickly, I have serious doubts as to whether or not this condition was survivable. Certainly, one could not attribute blame in the event that he had died. Particular complications appear to be not only the dissection of the aneurysm (which in itself is an extremely dangerous condition), but its positioning. I accept that this condition was a rare condition and has a low survivability rate. 38] Accordingly, I am not satisfied that there was any personal injury, and in particular, I am not satisfied that any of the delays were causative of the outcome in this case. In that regard I take into account that the Act requires me to only consider treatment delays, and it is clear that those did not lead to a different outcome. [39] But my view overall is that Mr Wooding's condition was one which put him in grave danger from the outset, particularly in a remote centre such as Gisborne. I am not confident that even if the CT scanner had been in place and he had been transferred nearly immediately to Waikato Hospital, the outcome would have been any different. 40] I recognise that this position is noted by a number of specialists but has done nothing to dissuade the concerns of the family. I have looked at the matter in the broad context of all the various documents filed, and looked at the facts in an objective but generous way. In my view the claim cannot succeed. OUTCOME [41] Whilst I accept there were delays, some of which were allocating and some which were treatment delays, these were not causative of the outcome. Costs [42] I understand that the Corporation does not seek costs on these appeals. Nevertheless, I reserve costs because Ms Wooding was not before the Court. However, I do note that costs normally are only awarded against unsuccessful parties and only in respect of legal costs and disbursements. SIGNED at AUCKLAND this 15 day of September 2014 Judge JA Smith District Court Judge 9 Annexure A Chronology of Events (from Clinical Notes) Waikato District Health Board WAIKATO HOSPITAL 13 November 2010 Time Event 2015 Mr Wooding presented to Gisborne Hospital 2030 Mr Wooding is seen by Gisborne clinician 2120 Mr Wooding is taken for X-Ray Time unknown X-ray reviewed by radiologist oncall. Mediastinum widening reported to Gisborne clinician 2230 Gisborne contacted Waikato to initiate initiate transfer as x-ray showed widened mediastinum and unable to carry out CT at Gisborne due to CT refurbishment 2230 Transfer initiation from Waikato commenced Some delay as "Awaiting aircraft to arrive as our own plane was unavailable" as documented on ICU transfer sheet) 2315 Mr Wooding transferred from ED to ICU (in Gisborne) 2355 Transport team leave Waikato Hospital via ambulance 14 November 2010 0045 Transport team take off from Hamilton airport in fixed wing aircraft 135 Transport team arrive Gisborne airport 0210 Transport team arrive Gisborne Hospital via ambulance 0240 Transport team and Mr Wooding leave Gisborne hospital via ambulance 0315 Transport team and Mr Wooding take off from Gisborne airport aircraf 0433 Transport team and Mr Wooding arrive Hamilton airport and travel to Waikato Hospital via ambulance 500 Transport team arrived Waikato Hospital ED 0500-0515 Mr Wooding transferred off stretcher and handover given to receiving ED staff 0516 Mr Wooding assessed by ED physician ED physician contacted radiology registrar and arranged CT Consent obtained from Mr Wooding for contrast agent LWHOI-109532 Pembroke & Selwyn Sts, Private Bag 3200, Hamilton 3240, New Zealand T: 07 839 8899 Oncall radiology registrar and radiographer travel to hospital to complete CT scan 055 Mr Wooding is sent to CT department 0600-0633 Mr Wooding had CT, ED physician, vascular registrar and radiology registrar are in attendance 0640 Mr Wooding is returned to ED and the results of the CT scan are discussed with him. Seriousness is explained to him and cardiothoracic review is to take place next 0700 Mr Wooding deteriorated with shortness of breath, followed by arrest. Mr Wooding is transferred to resuscitation room fo CPR. CPR commenced immediately and medical emergency call raised. Intensive care physician, ED physicians, ED nursing staff and clinical resource nurse in attendance 0715 Cardiothoracic team (consultant and registrar) arrive 0740 CPR discontinued and Mr Wooding is declared deceased .. .