Wooding Estate of v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 81 ACR 379/12 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN ESTATE OF DER WOODING Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers at Auckland Judgment: 31 March 2015 JUDGMENT OF JUDGE L G POWELL [1] This is an application for leave to appeal a judgment of Judge Smith delivered on 15 September 2014. Judgment Appealed Against [2] In the appeal before him Judge Smith was required to determine whether the death of Dennis Wooding was a treatment injury pursuant to s 32(1) of the Accident Compensation Act 2001. [3] There was no dispute that Mr Wooding died of a dissected aneurysm in Waikato Hospital on 14 November 2010. Mr Wooding had been admitted to Gisborne Hospital at 8.15 pm on 3 November 2010 from which he was transferred to Waikato Hospital, arriving at approximately 5.00 am the next morning. Following a CT scan but before any substantive treatment for his condition could be attempted, Mr Wooding's condition deteriorated and he died just after 7.00 am. [4] It was also not disputed that there were a number of delays that arose in providing treatment to Mr Wooding. These included the lack of a CT scanner in Gisborne due to a replacement machine being installed, the initial unavailability of aircraft available to transfer Mr Wooding to Waikato Hospital as a result of technical or safety reasons, delays due to fog upon eventually arriving at Hamilton Airport, and finally, delays arising as a result of confusion between treating specialist. [5] Against that background Judge Smith concluded that while the unavailability of the CT scanner in Gisborne and the unavailability of the aircraft "led to considerable delays"! those delays were the result of allocation decisions, which pursuant to s 32(2)(b) of the Act were "explicitly excluded from cover [and] ... this case must include a delay in treatment due to that decision". Judge Smith then went on to exclude the delay caused by fog as a "natural and unavoidable delay due to weather conditions". (6] Having excluded these three types of delay from consideration Judge Smith concluded as a matter of fact that the confusion between specialists meant that Mr Wooding was delayed in receiving a CT scan at Waikato Hospital by some 15-30 minutes.3 [7] As a result at para [35] of the judgment Judge Smith reached the following conclusions with regard to the delay in treatment: [a] The significant delays are ones which are excluded by the Act, and accordingly, cannot be taken into account; [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 At [23] W N At [28] At [30] operating team would have intervened once Mr Wooding had gone into complications and arrest; [d] 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 7.00 am the aneurysm had fully dissected and fatality followed. [8] Having reached the conclusion that the delay attributable to treatment would not have made any difference Judge Smith then went on to observe more broadly that based on the evidence before him: [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, Ms 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. [Emphasis added] [9] As a result Judge Smith dismissed the appeal. Applicant's Case [10] The applicant argues that Judge Smith was wrong to rely upon s 32(2)(b) to exclude the delays attributable to the absence of a CT Scanner in Gisborne and the unavailability of the aircraft. In the applicant's submission Mr Wooding's personal injury was not solely attributable to a resource allocation decision issue, and therefore Judge Smith made an error of law. [11] In the applicant's submission, had the various delays not occurred and had Mr Wooding presented to a tertiary hospital, received an urgent and immediate CT scan and been offered surgery within a reasonable timeframe he could have survived his dissected aneurysm. Specifically the applicant questions the evidence of high mortality rate before the Court and submitted that Mr Wooding: ... was never given the opportunity to take this risk - and would most certainly have taken those odds - a 50% chance of survival being possible. [12] The applicant has also raised issues about significant legal costs incurred in pursuing the treatment injury claim and issues of compensation for the family for the "pain, suffering and mental anguish induced throughout the last months". Respondent's Case [13] The respondent opposes leave to appeal being granted. The respondent concedes that the proper construction of s 32(2)(b) is a question of law but submits, notwithstanding Judge Smith's conclusions, that s 32(2)(b) was not required to be applied in the present case because neither the absence of a CT scanner nor the unavailability of aircraft were treatment induced delays. Specifically: 3.15 In order for the unavailability of the CT scanner and fixed wing aircraft to be 'treatment' they must constitute failures by a registered health professional to provide treatment in a timely manner. There was no failure by the registered health professionals involved in Mr Wooding's treatment to arrange a CT scan (at Gisborne Hospital) or a fixed-wing aircraft in a timely manner. The two matters were entirely outside of the control of the registered health professionals. They were simply not available. 3.16 The decision at Gisborne Hospital to replace the CT scan was an administrative/management decision. The maintenance and repair of the fixed-wing aircraft were decisions made by the supply company. [14] In any event the respondent submits that any error of law was not determinative of the appeal as it does not establish that Mr Wooding would have survived had the two delays been avoided. In the respondent's submission: 3.21 A delay arranging surgical treatment for Mr Wooding was inevitable. Gisborne Hospital did not provide cardiothoracic surgery. There was always going to be a delay while Mr Wooding was transferred to Waikato Hospital. As Smith DCJ was at pains to emphasise, even if Mr Wooding had been transferred to Waikato Hospital immediately the outcome would likely have been the same. The nature of Mr Wooding's rare condition combined with the mortality rate for such conditions, even where patients have access to immediate surgical treatment, is high. Decision [15] In considering this application the question to be determined is whether there is a question of law raised which is "capable of bona fide and serious argument". [16] With regard to the first issue raised by the applicant I am satisfied that the exclusion of those delays attributed to Judge Smith to allocation decisions are arguably in error. In particular it is clear from the judgment that in addition to the two delays excluded by Judge Smith as attributable to resource allocation issues, he nonetheless acknowledges two other delays such that if Mr Wooding's injury did result from treatment, it could not be said to have been "solely" attributable to a resource allocation decision. [17] The respondent did not attempt to argue that the test was indeed properly applied by Judge Smith. On the other hand I am not persuaded that the respondent's alternative argument noted at [13] above is correct, that the delays excluded by Judge Smith stood to be excluded at an earlier point because they were not failures to provide treatment. Impact Manufacturing (unreported, High Court, Wellington per Doogue J, AP 266/00, 6 July 2001) [18] Specifically Mr Wooding presented for treatment at Gisborne Hospital on 13 November 2010 and it appears to me that his treatment continued until he died in Waikato Hospital the next morning. It is clear from the judgment and the respondent's submissions that a patient in Mr Wooding's position would have always had to have been transferred to Waikato Hospital, whether or not the CT scanner was operational in Gisborne. Mechanisms for the safe and timely transfer of a patient between hospitals so appropriate treatment can be administered are therefore an integral part of treatment. The provision of appropriate scanning and travel protocols to ensure that the transfer happened in a timely manner, without further prejudicing the patient's condition would most definitely have required clinical input, including ensuring that if aircraft were unavailable for any reason that alternative mechanisms for transfer were available, as well as having backup destinations alerted and available if it was impossible to land at Hamilton. [19] Despite this arguable error in law, as the respondent submits, it is not however determinative of this appeal. The applicant quite correctly notes that the delays meant that Mr Wooding in effect lost a chance at treatment. Unfortunately, as the respondent correctly submits, that is not enough. [20] As the Court of Appeal in Accident Compensation Corporation v Ambros noted at [38]:$ [38] The loss of a chance of a better medical outcome often arises in cases of delayed, missed or wrong diagnosis leading to a determination in the patient's condition. What must be determined is whether the damage is a result of the doctor's fault or the normal outcome of the pre-existing condition - see Laferriere v Lawson (1991) 78 DLR (4") 609 at 657(h) - 658(a) (SC). The answer, on traditional causation principles, will depend on the patient's prognosis at the time the correct diagnosis should have been made. If the patient was at that time more likely than not to recover if properly diagnosed and treated, then the faulty diagnosis will be treated as causative. Otherwise it will not be. If it is treated as causative then full damages are recovered and there is no discounting for the chance (which could be up to 49 per cent) that the negligence did not cause the deterioration. If it is not found to be causative, then the plaintiff fails to recover at all. [21] In the present case it is clear that when Judge Smith's comments at [36] - [40] are considered in toto His Honour concluded as a matter of fact that it is more likely [2007] NZCA 304 than not that Mr Wooding would have died anyway, irrespective of the delays that occurred, including those which Judge Smith had considered excluded. In terms of Ambros Judge Smith concluded as he was entitled to do on the evidence before him that Mr Wooding's death was ultimately the result of his condition with no causal link between the delays and the personal injury. The doubt expressed by the applicant over the statistical chances of success in the expert opinion relied upon by Judge Smith was not backed up by any medical evidence and in any event does not give rise to a question of law which can be considered by the High Court. Taken together this means that irrespective of any error with regard to the interpretation of s 32(2)(b) of the Act, the outcome would be the same, and as a result the present application must be dismissed. [22] For completeness I also note that the issues raised by the applicant with regard to the legal costs incurred and any claim for compensation for the "pain, suffering and mental anguish" incurred by family members are not relevant to the present application. Neither of these matters give rise to any legal issue with regard to the present judgment, and compensation of the type identified is simply not a part of the accident compensation regime. Result [23] The application is dismissed. There is no issue as to costs. Judge L G Powell District Court Judge ACR 379-12-Estate of D E R Wooding.doc(aw)