Estate of Turner v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 17 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 21/10) BETWEEN ESTATE OF DAVID TREVOR TURNER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 1 November 2011 Appearances: Mr G A Turner advocate for appellant Mr S Hack for respondent Judgment: 20 January 2012 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a decision by the Corporation refusing cover as a treatment injury for death from heart disease while awaiting surgery at Wellington Hospital. The issue in the appeal is whether the failure was solely attributable to a resource allocation decision. [2] Mr Turner was diagnosed with moderately severe aortic stenosis in September 2002. Dr Thompson, physician, described him as well and quite active without any cardiovascular symptoms. [3] In February 2005 Dr Matsis saw Mr Turner and noted that a recent echocardiogram confirmed clinical findings of moderate aortic stenosis. Dr Matsis thought that the appellant would probably need an an aortic valve replacement within the next six to seven years. In September 2005, Dr Matsis reported some decreases in Mr Turner's physical capacity but no syncopal or anginal type discomfort. An echocardiogram showed moderate to severe stenosis, and Dr Matsis recommended and urgent coronary angiogram, with a view to aortic valve replacement surgery. [4] A diagnostic coronary angiography was carried out on 2 November 2005. It showed normal coronary arteries. Mr Turner's case was discussed at a cardio/surgical meeting and he was accepted for coronary artery bypass surgery. [5] Dr Thompson assessed Mr Turner on 10 January 2006. He noted that Mr Turner had been well, without any cardiovascular symptoms, and that he was symptomatically and clinically stable. He was then awaiting a dental assessment in preparation for cardiac surgery. The dental assessment was issued on 16 February 2006 and reported healthy oral mucosa with no abnormalities. The dental assessment was not received by the Cardiothoracic unit at Wellington Hospital until 30 March 2006. The delay is unexplained. Mr Hack for the respondent submitted that the delay in receiving the dental clearance did not cause any delay in Mr Turner's surgery, because at that stage he was not listed for urgent surgery. [6] The need to accelerate Mr Turner's admission to surgery was first raised in a letter of 26 May 2006 from his general practitioner, Dr Mclachlan, who reported to Dr Matsis that Mr Turner was getting increasingly breathless on exertion and even simple tasks of climbing modest hills made him have to stop and catch his breath two or three times. Dr Matsis wrote to the Department of Cardiothoracic Surgery requesting further urgency be given to Mr Turner's case because of his deterioration. That letter was written on 2 June 2006. On 19 June 2006, Mr Turner's case was re- prioritised as urgent and on 28 August 2006 surgery was provisionally planned to be carried out on 1 1 September 2006. [7] Mr Turner died on 1 September 2006, ten days before his scheduled date for surgery. Death was caused by a combination of severe aortic stenosis and arteriosclerosish disease. [8] The appellant's written submissions indicate that the Hospital wrote to the appellant's widow, acknowledging that the request for urgency was received in June 2006, and acknowledging a failure to write to Mr Turner's GP. That letter was not produced. The appellant seeks to enquire into the steps taken to schedule surgery with urgency and whether an opportunity for earlier scheduling was missed. The exclusion in s 32(2)(b) of the Act states that treatment injury does not include: (b) personal injury that is solely attributable to a resource allocation decision: Causation [9] Aside from the resource allocation question, there is the question whether the appellant could have recovered with surgical intervention. [10] A general review for Capital Coast Health District Health Board was prepared by Christchurch cardiologists Associate Professor John Elliot and Dr Ian Crozier. In their report, dated 1 October 2008, Mr Turner's case is referred to as "Case 2". [11] The review concerned 12 patients who had died whilst on the cardiac surgical waiting list between 15 June 2006 and 25 December 2007. Mr Turner's case was summarised as follows: "Case 2; This patient had severe symptomatic aortic stenosis. He died from aortic stenosis whilst awaiting an aortic valve replacement. His assessment and investigation prior to being accepted for surgery was expeditious and appropriate. He was placed on the cardiac surgical waiting list with a score of 60. After 6 months on the waiting list, his GP notified C&CDHB that he was deteriorating, and he was reprioritised as urgent 1 month later. He was assigned a provisional date for surgery, which would have been 10 months after being listed, but died 1 week prior to this." [12] The report commented that investigation before being accepted for surgery was expeditious and appropriate. It is not clear whether that evaluation applied to the appellant's reprioritising when he required urgent surgery. There seems to have been a normal investigation, but there is no material to explain the options in Mr Turner's case for scheduling of surgery before 1 September after the request of 2 June was received. Whether three months delay for urgent cases was a resource problem is not explained in the evidence. In relation to his case, the report also recorded: 'Case 2; This patient lived in a regional town. He died after 10 months waiting for an aortic valve replacement. This centre does not have a local cardiologist, but is staffed by general physicians. It also has a visiting cardiologist clinic but the volume of patients seen is severely limited by the small numbers of cardiologists at Wellington. Following acceptance for cardiac surgery, the patient was reviewed by the physician and discharged from follow up. After 6 months on the waiting list the general practitioner requested earlier surgery as the patient was dyspnoeac on moderate activity. In response to this the Wellington cardiologist forwarded the general practitioners letter and requested urgent surgery, but the patient was not reassessed by either the physician or cardiologist." [13] The report noted the delay of 41 days between dental review and the receipt of the dental review report. In the context of the appeal that may be of secondary relevance, because the dental review was received two months before urgency was requested for the appellant's valve replacement surgery. However there is also a question whether prompt receipt of the dental review would have resulted in scheduling of surgery in August on the semi-urgent track on which Mr Turner was already listed. [14] In its conclusions the authors of the report found that deaths could have been prevented by earlier surgery and that delivery of good clinical care was compromised by resource issues. It also noted that some patients did not undergo investigation and clearance of confounding factors such as dental fitness and other medical issues in a timely fashion. [15] In 2009 ACC sought clinical advice from cardiologist Dr Christopher Nunn. Dr Nunn wrote on 14 May 2009 advising as follows: "1 Personal injury details This patient has clearly died as a result of his severe aortic stenosis whilst awaiting treatment. He thus meets the criteria for having suffered a personal injury . 2 Treatment context The patient was awaiting treatment for his aortic valve stenosis within Wellington Hospital. 3 Causal link It is recognised that surgery for severe aortic stenosis is life-saving and it is reasonable to expect that had the patient undergone surgery that he would have made a good recovery. This person, therefore, meets the criteria for personal injury caused by failure to treat. 4 Necessary part or ordinary consequence This is not applicable in the context of this injury 5 Exclusions This injury was a result of failure to provide timely aortic valve replacement surgery. This is entirely attributable to resource allocation, the patient had been appropriately prioritized and that priority had been increased as symptoms deteriorated. Unfortunately Wellington Hospital, at that time, was unable to provide this treatment in a sufficient timeframe to prevent this patient's death, CONCLUSION: This patient, unfortunately, has died as a result of his severe aortic stenosis. It is my opinion that had surgery been undertaken earlier that this death would very likely have been prevented. The delay of surgery rests entirely with resource allocation within the Public Health sector. As such, it is my opinion this claim should be rejected according to current ACC legislation." [16] An ACC medical panel report was then signed off by Dr Maguire who noted: "In this case, I cannot see that treatment has caused a personal injury. Rather, Mr Turner was subject to a wait list, which appears to be a matter of resources and not treatment as meant by the Act." [17] The panel report carried a handwritten comment "Possibly resource issue. Need opinion"; indicating that another opinion was needed, apart from that of Mr Nunn which the panel had. How that document is to be interpreted was not explained. In any event, no further opinion was obtained and the Corporation issued its decision on 14 July 2009 declining cover because the delay in surgery was due solely to resource allocation decision. On review, the Reviewer found that the delay was solely attributable to a resource allocation decision. Submissions [18] Mr Turner, representing his father's estate, submitted that the date of injury was the date on which the appellant first received treatment for his aortic stenosis. That is misconceived, because the aortic stenosis was not the treatment injury. The treatment injury was the appellant's premature death on 1 September 2006. There is therefore no difficulty in identifying the injury as covered by the new treatment injury provisions that came into effect on 1 February 2005. [19] There is no dispute that the appellant suffered personal injury that was not a necessary part, or ordinary consequence, of the treatment. That was accepted by ACC on the basis of the 2008 report and also Mr Nunn's opinion. Delay in treatment is part of the process of treatment and can be a basis for cover. Cover is excluded if the delay is solely attributable to a resource allocation decision. But it is arguable that other reasons for delay may not exclude cover. 20] The appellant's case is that the injury was not attributable to a resource allocation decision but to prioritising surgery within the scope of the available resource. It is submitted that cardiac surgery was resourced during the period from 2 June 2006 when Mr Matsis requested urgency, until the appellant's death on 1 September 2006, but that the appellant's prority was not properly managed. [21] Mr Turner attemped to present appellant's case without supporting evidence. He presented a carefully prepared and well argued set of submissions, but the submissions depended on assertions of fact without documents or statements from an original source. The core of the submissions concerned his understanding of the shortcomings of the process for prioritisation of cardiac surgery in mid 2006, based on enquiries that he had made and conclusions that he had drawn. [22] Mr Hack for the respondent relied on the investigation and report by Prof Elliott and Dr Crozier, and on the opinion of Dr Nunn. The key passage in the report, referring to Mr Turner's treatment, was that "assessment and investigation prior to being accepted for surgery was expeditious and appropriate". Dr Nunn found that Mr Turner had been "appropriately prioritized and that priority had been increased as symptoms deteriorated". He concluded that the delay was entirely attributable to resource allocation. Discussion [23] The central point in this appeal concerns the application of $32(2)(b) of the Act excluding from treatment injury cover, personal injury that is solely attributable to a resource allocation decision. [24] There is potential for ambiguity or uncertainty in the application of the subsection. The widest interpretation would unfairly detract from the purposes of the Act and the principle of "generous and unniggardly interpretation" in ACC v Mitchell [1992] 2 NZLR 436 at 438. In the broadest terms, almost every administrative decision might involve some kind of resource allocation. For example the availability of medical staff in an emergency, might involve competing needs for the staff resource, but failure to recognise an emergency and to divert staff from routine tasks could not fairly be regarded as a resource allocation decision invoking the exclusion. In a similar way, the failure to accord priority to an urgent case awaiting surgery is not necessarily a resource allocation decision. The appellant's case is that the resource for cardiac surgery had been allocated and Mr Turner was entitled to fair consideration of priority among those waiting for surgery. There is an argument that this level of decision making does not concern the allocation of the resource, but the employment of the allocated resource. [25] Mr Nunn's opinion was that failure to provide aortic valve replacement surgery was entirely due to a resource allocation decision. That opinion justified the Corporation's decision at the time. However the underlying facts have not been fully examined in this appeal. [26] The exclusion, in this case, concerned the allocation of services and medical staff to cardiothoracic surgery, and the appropriate prioritising of patients accessing the resource. My provisional view is that the exclusion would not extend to arbitrarily or unreasonably excluding patients from accessing an available resource. There may be a question whether a negligent failure to recognise a pressing need for urgency falls outside the exclusion. The qualified expression "solely attributable" tends to narrow the exclusion so that an injury attributable partly to resource allocation, and partly to a lapse in management of the allocation, would not be excluded. The appellant's death was not caused solely by failure to allocate resources to the Cardiothoracic Unit, but by failure to allocate priority. If that failure was also a resource allocation problem, the exclusion could apply. But if there was a failure to properly utilise the resource, that may not fall within the exception. [27] The exact limit of the exclusion in the circumstances of this case has not been the subject of argument. It must depend on first ascertaining the relevant facts. If the appellant was not given a suitable level of priority at a time when it was available in order to schedule his surgery, then there would be a basis to argue that the exception did not apply. The question to be decided is whether or not a critical delay was attributable solely to a resource allocation decision or whether it was partly attributable to a scheduling decision that was not dictated solely by the available allocation of resources. [28] There is also a question whether prompt receipt of the dental review would have resulted in scheduling of surgery in August on the semi-urgent track. [29] Before the hearing, a direction was made on the basis that evidence of administrative actions was not relevant to the appeal. That direction assumed that the administrative arrangements were related solely to resource allocation. Mr Turner did not take the matter further, but he attempted to argue the appeal with the support of material that was unsuitable for evidential purposes. In that regard, he was disadvantaged by a ruling that may not have fully taken account of the nature of the appellant's argument. The problem was discussed during the hearing of the appeal. I think that the appropriate course is to give the appellant a further opportunity to offer evidence on the way in which the deceased's proposed surgery was scheduled. [30] In practical terms the evidence is likely to be difficult to obtain. For example, at the appeal hearing, Mr Turner stated that the Surgery Operations Manager at C&CDHB had told him that prioritisation for surgery was not well managed, and he elaborated on the supposed shortcomings in some detail. A Court is required to act on evidence from an original source. Matters of this kind require some form of verification from persons with direct knowledge of the subject matter, or equivalent documents. Mr Turner may well need some specialised legal advice in order to properly present this difficult appeal. As discussed at the appeal hearing, it would have been sensible to lodge a complaint with the Health & Disability Commissioner in order to initiate a formal investigation. [31] As the appeal stands at present, there is evidence from the Elliot and Crozier report that "assessment and investigation prior to being accepted for surgery was expeditious and appropriate", and from Dr Nunn's opinion that Mr Turner had been "appropriately prioritized and that priority had been increased as symptoms deteriorated". Mr Turner may question why those opinions should be acceptable as evidence in preference to Mr Turner's own carefully prepared submissions. Without finally determining the matter at this stage, I note that the Elliot and Crozier report and the opinion of Dr Nunn are authored by qualified professionals with access to hospital records, and each document comments specifically on the delay leading up to the death of Mr Turner senior. As evidence before a Court, the reports may be regarded as lacking in precise explanation of the steps taken following receipt of the Dr MacLachlan's letter of 29 May 2006, and the options for priority that were then available. But they have at least some weight as evidence and may prevail in the absence of any contrary evidence on the important points. [32] In an appeal such as this, the Court does not adopt an investigative role. A decision must be made upon the evidence presented by the parties. Because it would be unfair to reach a decision without giving the appellant a further opportunity to provide reliable evidence, an interim decision is issued at this stage. [33] The process for offering further evidence on an appeal is to provide a brief of the proposed evidence, or a document offered in evidence, and to apply to the Court for leave to introduce it. Both parties may then be heard on the question of introducing further evidence. The respondent is entitled to offer evidence in reply. [34] Depending on the evidence that is available, there may have to be a further oral hearing of this appeal. There has been no opportunity for argument concerning the precise steps taken to prioritise Mr Turner's surgery because there is no evidence as to what steps were taken. The respondent has relied on general opinions that have not been exposed to any detailed examination. The appellant's case is based on conclusions without an authoritiative source or sufficient supporting evidence. [35] The following partial timetable is now directed: (a) Mr Turner may indicate in 14 days whether or not the appellant wishes to offer further evidence; b) If the appellant wishes to offer further evidence, Mr Turner will specify the nature of that evidence within a further 14 days, or indicate what further time he may require; (c) Within a reasonable time, the appellant will provide briefs of the proposed evidence to the respondent and will apply to the Court; (d) Further directions will be made as required. [36] A further matter that could arise concerns the right of representation of the deceased estate. Proceedings of this kind should be brought with the authority of the executor of the estate. It may be a simple matter for Mr Turner to provide that authority. Judge D A Ongley District Court Judge