Estate of Brown v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON Decision No. [2014] NZACC 214 UNDER The Accident Compensation Act 2001 (the Act) IN THE MATTER of an application under Section 151 of the Act BETWEEN ESTATE OF RONALD BROWN (ACR 589/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard: At Auckland, 5 September 2014 Court: Judge J A Smith Appearances: Mr M Darke for Estate of Ronald Brown (Mr Brown) Mr D Tui for the Accident Compensation Corporation (the Corporation) Judgment: 12 September 2014 RESERVED JUDGMENT OF JUDGE J A SMITH A. Mr Brown did not have cancer (hepatocellular carcinoma or HCC) as at March 2006. B. There was a failure to undertake regular screening from March 2006 at six-monthly intervals before September 2008. The earliest screening date would have been September 2006, and accordingly, if the cancer had been present prior to 2008 the HCC could have been diagnosed in screening between September 2006, March 2007, September 2007, and March 2008. However, given the treatment for HCC, an earlier diagnosis would not have led to any significant difference in treatment. C. I am not satisfied that any personal injury to Mr Brown (including possible extension of life) occurred as a result of the failure to diagnose his HCC at an earlier date. D. There is no order for costs. REASONS FOR DECISION Introduction [1] Mr Brown had significant problems with his liver for some considerable time. The detailed report provided by Dr Harry is accepted by both parties as a fair summary of the background to this case. [2] In short, Mr Brown had had problems with his liver readings for some time. The first abnormal liver function test was in 1993. There was no sign of cancer at this stage and a core biopsy was not undertaken that can be discovered by the parties. Blood tests showing abnormalities are present through the 90s, and by 2001 Dr Finucaine comments: abnormal liver function tests since the 1980s and appears to have developed cirrhosis and portal hypertension. [3] Dr Rankin and Dr McGrath in 2003 comment on thrombocytopenia, but no further comment is made about portal hypertension (established cirrhosis) as a cause for the thrombocytopenia. In 2006 the ultrasound is repeated and the sonographer, T. Stewart, finds: appearances are suggestive of hepatocellular disease such as cirrhosis, also the presence of oesophageal varices and splenomegaly suggests a degree of portal hypertension. 2 Although scans were indicated, no further scans were performed until September 2008. [4] It is important to note that the cirrhosis is not alcohol related and in Dr Harry's view is that the most likely explanation is NAFLD related to insulin resistance and diabetes which was diagnosed around 1992. (5] I accept Dr Harry's view that the cancer should have been diagnosed prior to September 2008: Patients with cirrhosis of the liver are at increased risk of HCC. As such, it is standard practice that such patients are screened for HCC using blood tests ... and ultrasound scans at 6 monthly intervals. [6] Accordingly, I conclude that in the circumstances of this case, there was a failure to undertaken regular 6-montly screening of Mr Brown, as indicated by the diagnosis of cirrhosis of the liver in 2006. 7] So far as the question of whether or not his cirrhosis should have been diagnosed earlier, I do not consider that the evidence is clear enough to reach a conclusion on this matter. Certainly regular examinations were taken and although mention of portal hypertension was recognised, I am satisfied that the clear diagnosis for cirrhosis was not available until 2006. Is a shortening of life a personal injury? [8] I acknowledge for current purposes that the shortening of a human life is a personal injury. This matter has been discussed relatively exhaustively in the case of Estate of Sheppard v ACC. The Court considered the question of whether earlier death was wholly or substantially caused by the cancer or by the failure to treat. At [30] the Court considers the cases of ACC v Ambros' and Atkinson v ARCIC' and the requirement to show clear proof that failure to follow up would have made a difference by at least slowing the course of the disease. [9] After quoting [32] of Ambros, the Court noted at [31]: [31] The reasoning here is that even a large increase in risk from a treatment failure may not necessarily demonstrate that the treatment failure [2013] NZACC 117, Estate of Sheppard v Accident Compensation Corporation, 24 April 2013 [2007] NZCA 204 [2002] 1 NZLR 374 (CA) caused an ensuing injury. However, the Court is permitted to draw a robust inference depending on all of the circumstances of an individual case. [10] The Court in Sheppard then discusses the case of Gregg v Scott where the delay in diagnosis reduced Mr Gregg's chance of survival from 42% to 15%. The Court then quotes [46] of Ambros: [46] ... In terms of the causation principles set out in Atkinson, any risk must be realised in the occurrence of a personal injury and the personal injury must be proved to have been caused by the risk factor involved. In keeping with this principle, if the omission to treat causes an identifiable added injury, cover would be available for that injury. [11] It then notes at [34]: [34] Under the accident compensation regime, loss of a chance is not a proper basis for causation when considering cover. Where the failure increases the risk of a poor outcome, the statistical evidence may permit an inference that the poor outcome was caused by the failure. That is to say a Court may draw a robust inference where there is a high probability in the individual case of a better outcome from treatment, or a worse outcome from failure to treat [12] Accordingly, I have concluded that for the current purposes, I must be satisfied (on the balance of probabilities) that failures to screen Mr Brown were: [a] A treatment injury under Section 32(1)(a)(ii) which may include a failure to treat; and [b] That this treatment caused Mr Brown's life to be shortened. I do not consider the question of his death because this is raised as a far more remote possibility than an extension of his life. [13] Dr Harry suggested that: Treatment options include liver transplantation, liver resection and radio- frequency ablation all of which may be curative. In addition, there is transarterial chemoembolisation which can slow the progression of the tumour ... [14] I accept that in 2006 and 2007 Mr Brown had an intact synthetic function. This had been lost by 2008. Dr Harry acknowledges that resection should not be performed given Mr Brown's existing portal hypertension in 2006. She also notes [2005] 2 AC 176 that Mr Brown had multiple co-morbidities including the diabetes which may have precluded liver transplantation even with early diagnosis. [15] Mr Brown was already wheelchair bound with an undiagnosed neuropathy. She is not confident that ablative techniques, such as radiofrequency ablation (RFA) s necessarily suitable for Mr Brown. [16] She notes: Chemoembolisation ... is considered of high risk in patients with decompensated liver disease or portal vein thrombosis or large tumour volume ... 17] By September 2007 she notes that there was some evidence of synthetic dysfunction contraindicating chemoembolisation. Mr Brown's Health [18] It is clear from the file that Mr Brown was in poor health. He was wheelchair bound with undiagnosed neuropathy, diabetes mellitus, and cirrhosis of the liver. [19] In the end I am unable to be satisfied that Mr Brown would have been available for any of these treatments, or that any of these treatments would have been curative or life extending. The only realistic one that might have been considered, in my view, is chemoembolization, and its sole purpose is to extend life. Whether or not a specialist would have recommended this is uncertain, given his cormorbilities and his history. [20] In the end I have concluded that Mr Brown did not suffer a personal injury as a result of the failure to detect his cancer earlier, and acknowledge that the Act is not amenable to the prospect of chance, or good chance, of a better outcome. Even if this was the test, I do not consider Mr Brown had a good chance of extending his life by undertaking earlier treatment. [21] For reasons discussed in Ambros and in other cases, I acknowledge that the Act is intended to provide cover in defined circumstances. OUTCOME [22] Overall for reasons found by the Court in Sheppard, I have concluded that earlier detection of Mr Brown's cancer is unlikely to have led to any significant difference in the outcome. [23] For this reason I have concluded that the Act does not provide cover in this situation and it does amount to a treatment injury as defined under the Act. [24] Accordingly, the decision of the Review Officer is confirmed. Costs 25] I note that the Corporation has indicated that it is not seeking costs, and accordingly there is no order for costs. SIGNED at AUCKLAND this day of September 2014 Judge JA Smith District Court Judge