Estate of Gibbs-Love v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2011] NZACC 104 Al 270/09 IN THE MATTER OF an intended appeal under s. 162 of the Accident Compensation Act 2001 BETWEEN ESTATE OF JALI GIBBS- LOVE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD ON THE PAPERS DATE OF THIS DECISION S April 2011 COUNSEL Mr A Beck for appellant Ms A J Douglass for ACC DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The Issue [1] The appellant seeks leave to appeal against the decision of Judge Beattie given on 23 July 2010 (Decision [2010] NZACC 110), and referred to further below, on the grounds that the decision is wrong in law. The issue was whether ACC was correct on 11 September 2008 in declining the appellant's claim for treatment injury. The basis for that ACC decision was that Jali Gibbs-Love's death was caused wholly or substantially by his underlying health condition of cerebral palsy, and so excluded from ACC cover. Factual background [2] Jali Gibbs-Love suffered from severe cerebral palsy since birth. He was under the care of his GP in Whanganui (i.e. Dr Contition). Following the recommendation of experts at Starship hospital in 1999, he was being treated with Baclofen (90 mg daily) and Diazepam. [3] In August 2007, a decision was made by his carers to have Jali admitted to a rehabilitation unit under Dr de Groot at Palmerston North Hospital. He was admitted 2 to the hospital on 12 November 2007 with a background of Athetoid/Spastic Cerebral Palsy. [4] Dr de Groot soon reduced the dosage of Baclofen to 10 mg and prescribed Tetrabenzanine. [5] On 16 November 2007, Jali suffered hyperextension of the neck muscles which resulted in respiratory arrest. He developed dystonia and was given Cogentin. He was transferred to the Coronary Care Unit. [6] On 17 November 2007 at 17.45, his Baclofen was reinstated. His condition stabilised and he was transferred back to Dr de Groot's ward. [7] Following dissatisfaction expressed by Jali's mother, he was transferred to a ward under the care of Dr Yap. [8] On 20 November 2007, Jali had repeated dystonic episodes which led to hyperextension of the neck and suffered multiple respiratory arrests. All medication was stopped with an NFR order. He was provided with morphine intravenously during his last 48 hours but died on 25 November 2007 aged 22 years. A more detailed statement of the above background is set out by Judge Beattie in his decision. 9] Dr Rutherford (forensic pathologist) prepared an autopsy report for the Coroner. He considered that the cause of death was respiratory arrest from airways obstruction, cervical musculature spasm, and cerebral palsy (longstanding). [10] Jali's mother, Mrs Love, lodged a claim with ACC for a treatment injury. ACC obtained reports from Jali's GP, from Drs de Groot, Wallis (a neurologist), Martin ( a physician), and from Professor Burgess a pharmacologist. ACC declined cover on the grounds that Jali's death was not caused by treatment. A Reviewer upheld the decisions reached by ACC, and an appeal was taken to the District Court. The District Court decision [11] Further evidence was provided to the District Court by Mrs Love. She contended that the withdrawal of the long-term medication, Baclofen and Diazepam, was a medical error with potentially serious consequences. She put it that this was supported by articles from medical journals. [12] Judge Beattie held that the appeal was wholly determined by the medical evidence (his para 9). He referred to all the reports that had been produced by ACC and concluded (his para 22): "I have carefully considered the evidence and find that there is no causal nexus between the treatment which the deceased received at Palmerston North Hospital and his death." [13] Judge Beattie's response to the arguments put up by Mrs Love was (para 23): 'There is simply no evidence which would suggest that any changes to medication, reduction of dosage or withdrawal of medication, played any causative part in the deterioration of the deceased's condition over the last 48 hours of his life, and the unqualified assertion of the deceased's mother must 3 simply be recognised as that and cannot displace the specialist medical opinion which has been presented." [14] The Court went on to say that no further investigation could be required from ACC (para 24): "I find that the investigation which the Corporation did carry out was more than satisfactory and more than satisfied the requirements contained in section 57 of the Act." [15] The Court also stated that (para 25): 'The deceased was at all times under careful and close supervision, and the respiratory arrest, which was the ultimate cause of his death, was a condition which had been building over the days leading to his death, and it was the situation that the spasms caused by the cerebral palsy were not able to be controlled." [16] Judge Beattie concluded that no treatment or failure to treat caused or contributed to the death of the deceased. The appeal was dismissed. Mr Beck's submission for applicant/appellant [17] It is submitted for the appellant submits that this Court has erred at law by failing to follow the approach required of an appeal Court; by failing to take into account material evidence, by relying on reports which were not independent; and by concluding that a full and proper investigation had been carried out. [18] Mr Beck submits that Judge Beattie relied on only some of the evidence produced and chose to rely only on the reports presented by ACC and disregarded the evidence of Mrs Love disparaging it as "the unqualified assertions of the deceased's mother". [19] Mr Beck puts it that Mrs Love was not making assertions but produced material from eminent medical practitioners which (he puts it) supported her contention that Baclofen Withdrawal Syndrome is a well recognised condition with potentially fatal consequences. Mrs Love also raised concerns that abnormalities shown in blood tests were not addressed, and that these provided support for the possibility of Baclofen Withdrawal Syndrome. Mr Beck puts it that this significant evidence was not taken into account by Judge Beattie and at no stage does he mention Baclofen Withdrawal Syndrome which was a critical aspect of the case presented by Mrs Love. [20] Mr Beck put it that the significance of Baclofen Withdrawal Syndrome was recognised in the report of the ACC Medical Adviser, Dr Moughan, who thought that further ECA comment was appropriate and that was not obtained. Accordingly, Mr Beck submits that it is difficult to see how Judge Beattie was able to conclude that a full and proper investigation had been carried out. He notes that syndrome is not mentioned in any of the expert reports relied on by ACC. [21] Mr Beck submits that without any reference to that syndrome, it cannot be safely concluded that it was taken into consideration either in treating Jali, or in producing the reports for ACC; and the abrupt withdrawal of Baclofen was contrary to Medsafe warnings and there is no indication in any of the reports that appropriate monitoring was undertaken. [22] Mr Beck submits that it is seriously arguable that Judge Beattie's conclusion is undermined by the fact that it is based on reports which have omitted to consider vitally significant issues in relation to the effects of treatment. Mr Beck also submits that the reports produced by ACC all refer back to the initial report by Dr de Groot. Mr Beck points out that it is the treatment of Jali by Dr de Groot that is in issue in this case so that he should not be regarded as an independent expert, nor can reports of other experts who rely on what Dr de Groot has said. [23] Accordingly, Mr Beck submits that a fair investigation by ACC required a report from an outside expert which did not use as its starting point the material assembled by Dr de Groot, and that Judge Beattie's conclusions could be unsafe because they are, Mr Beck submits, all predicated on reports which lack the fundamental characteristic of independence. [24] Mr Beck referred to the conclusion in Dr Moughan's report, as ACC's adviser, that further investigation was needed and submits that Judge Beattie's conclusion cannot be justified on the material before him. [25] Mr Beck submits that there is a seriously arguable matter for appeal. The stance for ACC (26] It is submitted for ACC that the intended appellant cannot show an arguable case that Judge Beattie's decision is wrong in law as required under s. 162(1) of the Act. [27] Ms Douglass submits for ACC that the questions raised for the appellant are issues of fact which are not capable of bona fide and serious legal argument. She referred to Judge Beattie having weighed up all the relevant medical evidence and making findings of fact which he applied to the applicable law and, indeed, held at his para [9]: "The issue in this appeal is wholly determined by the medical evidence, and in that regard I find that the Court, and before it, the respondent, had a significant body of evidence on which to consider the issue of cover entitlement for the deceased". Ms Douglass referred to Judge Beattie having carefully considered the evidence and found that there was no causal nexus between the treatment which the deceased received at Palmerston North Hospital and his death and to Judge Beattie having concluded his decision as follows: "[26] Accordingly, I find on the facts that there is no evidence that any treatment carried out by any medical personnel at Palmerston North hospital, either by acts of commission or omission, caused or contributed to the death of the deceased, and this being the case, statutory requirement of causation cannot be established and therefore there can be no cover in the circumstances. This appeal is therefore dismissed." [28] Judge Beattie reviewed the evidence and submissions and formed his own opinion on the medical evidence before him. No new evidence has been adduced by ACC for the appeal. As the appellant was self-represented by Mrs Love, ACC prepared a bundle of documents which included all the relevant medical reports and advice upon which ACC had reached its 11 September 2008 decision letter and treatment injury report. 5 [29] Mrs Love provided information on Baclofen Withdrawal Disorder as part of the bundle of documents provided to the Court; but none of the supporting information supplied by Mrs Love provided any specialist medical opinion contrary to the reports provided by ACC as summarised in Judge Beattie's decision. [30] ACC submits that there was no specialist medical evidence which challenged substantively the expert medical opinion that the deceased died from a deterioration of his medical condition of cerebral palsy. [31] I agree with Ms Douglass for ACC that the correspondence and references provided on behalf of the appellant could not be regarded as anything more than assertions by Mrs Love that there was a possibility of a detrimental effect from the reduction of dosage and/or withdrawal of the Baclofen medication. [32] Dr de Groot, the treating consultant, and the three expert clinical advisers all considered the effect of the reduction in dosage and withdrawal of the drug Baclofen. They discussed the possible adverse side effects weighed up with the concerns regarding the deceased's rapid deterioration with respiratory weakness and increased seizures and his underlying condition of cerebral palsy. Although the potential adverse effect of the reduction in dosage was not expressly described as Baclofen Withdrawal Disorder, the change in dosage of Baclofen was considered by all of them in their reports to ACC and referred to in the judgment. [33] ACC submits that the appellant has not provided a specialist medical opinion contrary to that provided by it, including the autopsy report for the Coroner, and that Judge Beattie properly considered the medical evidence before him. That is correct. [34] ACC submits that the appellant's submission as to the significance of Baclofen Withdrawal Disorder was duly considered by Judge Beattie in the context of the medical opinions provided to ACC and there being no specific medical opinion on this point adduced by the appellant. [35] The Coroner's report was never made available to ACC by the appellant; and, apparently, the appellant did not pursue the Coroner's report for the purposes of the appeal. [36] The appellant criticises the external clinical adviser's reports as lacking independence, because they refer back to the initial report prepared by Dr de Groot, the treating consultant. ACC submits that the brief of the external clinical advisers is to consider all relevant information required to form an expert opinion in giving treatment injury advice. An expert adviser must state the facts, assumptions and reasons upon which the expert opinion is founded. To suggest that an expert medical opinion should not refer to the factual and medical evidence from the clinician responsible for the care of the patient fails to appreciate the role of expert opinion evidence. An opinion can only be reached if there is a foundation of factual evidence upon which the expert can form an opinion. The response of Mr Beck [37] Mr Beck puts it that there is no suggestion in the Act that the Court should be confined to what the respondent describes as "specialist medical opinions"; and, on the contrary, the legislation suggests that the Court should be prepared to take into 6 account material which would not satisfy evidentiary requirements in a civil court. I can accept that approach for probative evidence. [38] Mr Beck submits that the material relied on by the appellant was produced in evidence before the Court without objection; so that it was evidence properly before the Court, and was required to be considered by the Court in reaching a decision. The appellant produced material from eminent medical authorities, notably Dr Albright, Dr Samson-Fang. The evidence from these authorities was set out in appendices 11-15 of the appellant's material under the heading "Medical Evidence". The appellant also produced case reports from Cunningham and Santiago-Palma. However, Judge Beattie did address the evidence. [39] Mr Beck submits that the evidence demonstrated that Baclofen Withdrawal Disorder, resulting from abrupt cessation of long term treatment, can have fatal consequences; and that this highly significant issue was not addressed by any of the medical opinions relied on by ACC. The respondent contends that, although not mentioned by name, the issue was nevertheless considered. Mr Beck submits that is not correct. He notes that Dr de Groot mentions "adverse side effects", but makes no mention of the possibility of death; and that the other reports are all based on what Dr de Groot stated. I disagree with those points of Mr Beck as I state below. [40] Mr Beck also submits that Judge Beattie made no reference to the medical literature relied on by the appellant, or to the reports made from Santiago-Palma and Cunningham; so it is unsurprising that he did not mention Baclofen Withdrawal Disorder. [41] Mr Beck puts it that ACC is unable to deny that the expert opinions it relied on were all based on what Dr de Groot had said, and claims that there is no other way for opinions to be prepared. Mr Beck also emphasises that Dr de Groot's report was a reconstruction with the benefit of hindsight; and an independent opinion would be based chiefly on the primary materials prepared contemporaneously, and bringing expert opinion to be bear on whether appropriate treatment had been provided. He submits that an independent report would also require expert knowledge of the relevant medical literature, and be able to take into account issues such as Baclofen Withdrawal Disorder; and that type of report was lacking in this case. [42] Mr Beck put it as a matter of the utmost concern that the Court seems to have not given full consideration to evidence from the deceased's mother. He submits it is seriously arguable that full and proper investigations were not carried out by ACC so that Judge Beattie did not have all the material facts. My views [43] Pursuant to s. 162(1) of the Act, the appellant is only entitled to leave to appeal to the High Court on questions of law. It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law, as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law, and a Judge's treatment of facts can amount to an error of law. 7 [44] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. [45] I agree with Mr Beck that an error of law will arise where the Court has misinterpreted or misapplied a statutory provision; where there is no evidence to support a decision; where the evidence is inconsistent with, or contradictory to the decision, or the true and only reasonable conclusion on the evidence contradicts the decision; where a decision is wrong in principle, or where a decisionmaker has failed to take into account some relevant matter, or has taken account of an irrelevant matter; and where the Court has rejected evidence without a clearly articulated and rational basis for doing so. [46] There is no specialist medical evidence to show that Jali did not die from his cerebral palsy. The evidence is that he did. The medical witnesses considered carefully the change in dosage of Baclofen. There is no reason to question the professional integrity or competence of Dr de Groot. Judge Beattie's decision was based on the evidence. [47] I have no reason to believe that Judge Beattie failed to take into account material evidence or relied on inadequate evidence. On the evidence, he was entitled to conclude that there had been a full and proper investigation of whether or not there had been medical error. I accept that the views of Mrs Love (mother of the deceased Jali) are very important as mothers seem to have particular sensing powers in such a situation as the present. However, any lack of focus on Baclofen Withdrawal Syndrome does not seem to me to detract from Judge Beattie's careful and reasoned findings. [48] For all that Mr Beck has put forward, it seems to me that Judge Beattie has comprehensively absorbed and dealt with the evidence before him and that the appellant's challenge Judge Beattie's decision is solely in respect of the factual findings made by Judge Beattie. I do not think that the appellant is entitled to be granted leave to appeal, because there is no seriously arguable case that Judge Beattie's decision is wrong in law. [49] I consider that the content of the submissions for ACC is correct. [50] Accordingly, this application for leave to appeal is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 270-09.doc(aw)