Executors of the Estate of Tangiora v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 120 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN THE EXECUTORS OF THE ESTATE OF HOHAIA TERENCE TANGIORA (Deceased) (Al 573/04) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent AND MITRA VAHDATI-BOLOURI Medical Registrar Third Party HEARD at HAMILTON on 6 May 2008 APPEARANCES Mr D Heperi, Advocate for Appellant. Ms L Rice, Counsel for Respondent. Mr A Lewis, Counsel for Dr Vandati-Bolouri Mr W G Manning, Counsel for Dr B Little. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent's decision of 18 March 2004, whereby it declined to grant cover to the deceased for personal injury, namely his death, arising from medical misadventure, being medical error. (2] This appeal raises two issues, the first being whether or not it can be established that there was medical error on the part of any health professional, and secondly, if so, was that error causative of the deceased's death. 573.04 (pg) 2 [3] In broad terms, Mr Heperi for the Appellant contends that the deceased's death was caused by medical error on the part of Dr Vandati-Bolouri by her failure to pass on vital information regarding laboratory tests on the deceased to Dr Little at hand-over to him at 2300 hours on 13 December 2001 in the Emergency Department at Tauranga Hospital. [4] It is contended that if that information had been provided to Dr Little he would have initiated the administering of antibiotics to the deceased at or shortly after the time of hand- over and which, if so administered, would be more likely than not to have prevented the deceased's death, the cause of the deceased's death being meningococcal septicaemia. [5] At the commencement of the hearing Mr Heperi advised that no claim of medical error was now being made against Dr Little. [6] The background facts relevant to the issues in this appeal may be stated as follows: . The deceased was a fit 24 year old timber worker. At about 2.50 p.m. on 13 December 2001 the deceased was brought home from work by work-mates complaining of feeling unwell. He felt cold, although it was a warm day, and his body was aching. At about 4.30 p.m. the deceased's mother, concerned for her son, made an appointment for him to see Dr Bryan Stout at the Te Puke Medical Centre. At about 5.15 p.m., Or Stout examined the deceased. Dr Stout noted that he was febrile with a temperature of 39.7 and tachycardia. There was no skin rash, his throat appeared normal and his chest was clear Dr Stout's provisional diagnosis was viral meningitis and that he needed to go to hospital. Dr Stout telephoned the Duty Medical Registrar in the Emergency Department at Tauranga Hospital, namely Dr Vandati-Bolouri, and made arrangements for his admission. At about 6.13 p.m., the deceased arrived at the Emergency Department at Tauranga Hospital where he was triaged as Category 3, meaning that he should be seen within 30 minutes. 3 . It would not be an understatement to say that the deceased's admission to hospital and his initial care was less than satisfactory. This was due in large part to the huge pressure which that department was under at that particular time. Although the deceased was attended by nurses from time to time, he was not seen by the Duty Registrar, Or Vandati-Bolouri, until 2000 hours. . After taking the history and examining the deceased Dr Vahdati-Bolouri's assessment was that the deceased was likely to be suffering from a viral infection. Blood tests and other laboratory analyses were set in train at that time. . At 2150, the Laboratory telephoned the Emergency Department and gave brief details of the blood analysis, to the effect that the white blood count was low and that the scatter showed a probable marked left shift. Platelets were normal. The caller advised that a film comment would follow. At 2200 hours Dr Vandati-Bolouri performed a lumbar puncture and CSF samples were sent to the Laboratory for analysis of biochemistry and microbiology. . At approximately 2300 hours Dr Vandati-Bolouri went through the hand-over procedure to Dr Little, who had in fact been in the Emergency Department since about 2230 hours. Full particulars relating to events at the hand-over will be set out at a later point in this decision. The evening duty continued to be busier than usual for Dr Little and he had a number of seriously ill patients to attend to. At 2319 a person in the Laboratory telephoned through details of the film comment from the blood test earlier taken. That comment noted: "Moderate left shift, moderate toxic granulation". . It is Dr Little's statement that that information was not passed on to him. The deceased was transferred to a general ward at 2330 hours and a further drop in blood pressure recorded at 0145 on 14 December. At 0100 hours, Dr Little was given the initial cerebrospinal fluid (CSF) results from the Laboratory. He described it as being slightly reassuring as white cell count for tube 3 was within normal range. 4 At this point, Dr Little had no information or reason to depart from the view that the deceased had a viral illness, as had been intimated by Dr Vahdati-Bolouri at hand-over. By 0300 the deceased was becoming quite distressed . At 0513, he was sent to Intensive Care where antibiotics were administered at 0530. The deceased continued to deteriorate and was declared dead at 0618 hours with the cause of death being determined to be meningococcal septicaemia. . Consequent upon the deceased's death, Tauranga Hospital initiated what was described as a Sentinel Event Investigation. Conclusions from that report will be referred to later in this decision. . In addition to that investigation there was a full inquest conducted by the Tauranga Coroner and he also made certain findings, which similarly will be referred to later in this decision. The personal representatives of the deceased lodged a claim for cover with the respondent in April 2003, alleging medical error on the grounds that there was a failure to identify the illness and consequently a failure to introduce antibiotics at a much earlier stage following his admission to hospital. The claim was referred to the respondent's Medical Misadventure Unit and in addition to the numerous statements that had been prepared for the purposes of the Sentinel Investigation, the respondent sought independent advice from two specialist physicians, namely Dr Scott Pearson, Emergency Physician, and Dr Andrew Swain, Clinical Director, Emergency Department, Palmerston North Hospital. . Consequent upon the advice received from those independent advisors, the respondent issued its decision on 18 March 2004, declining the claim. The reason given was that the deceased died of meningococcal septicaemia and that infection had not been caused by any medical treatment he received. . The decision went on to also record that there had been no failure to diagnose the deceased's condition and that no medical error had occurred. . The appellants sought a review of that decision and a Review Hearing took place in October 2004 at which further evidence was introduced, in particular further evidence from Dr Little. 5 . In his decision dated 19 October 2004, the Reviewer, Mr J W Haines, ruled that the allegations of medical error against Dr Vahdati-Bolouri could not be sustained in face of the independent opinions which had been received, and he therefore confirmed the respondent's primary decision to decline cover. . For the purposes of the appeal to this Court, the appellant has introduced a further independent opinion from Dr Peter Freeman, Clinical Leader of the Department of Emergency Medicine, Wellington Hospital. [7] The foregoing represents a chronological outline of the events as they occurred, more or less from the time the deceased saw his GP, Dr Stout, in the afternoon of 13 December 2001, down to his death at 0615 hours on 14 December 2001. The claim now being made on behalf of the appellant is that Dr Vandati-Bolouri was guilty of medical error in relation to the circumstances of her hand-over of responsibility at the Emergency Department to Dr Little at 2300 hours. (8] The specific contention is that Dr Vandati-Bolouri failed to properly inform Dr Little of the blood analysis which had been carried out and to advise him to take cognizance of the blood film report when that report was sent through from the Laboratory. This is a different particular of medical error than the failure to diagnose which had been alleged in the original claim. (9] The contention is that if Dr Little had been so informed, he would have taken positive action to commence a regime of antibiotics for the deceased some five to six hours earlier than when antibiotics in fact commenced at 0530 hours. [10] The evidence which bears upon this issue comes from a number of sources. [11] Dr Vandati-Bolouri was the Registrar on duty in the Emergency Department at Tauranga Hospital on 13 December 2001. Her term of duty was scheduled to finish at 2230 hours, and at which time she was to be succeeded by Dr Little. [12] Dr Vandati-Bolouri provided a report for the Sentinel Event Investigation and subsequently a follow-up statement to the respondent's Medical Misadventure Unit in July 2003. 6 [13] In her principal statement Dr Vahdati-Bolouri made the following points: . The deceased was first seen by her at 2000 hours. She noted the terms of his referral from his GP as being suspected viral meningitis . She noted a two-day history of frontal headache, myalgia, severe arthralgia, sore throat and fever. There was no neck stiffness and no rash . After obtaining the history and examining the deceased the impression she gained was that this was likely to be a viral infection, especially in view of the athralgia, myalgia and sore throat. . She initiated blood tests and received the results from the Laboratory at 2150. She noted white blood count low and moderate/marked left shift. . In view of the these results she decided to perform a lumbar puncture, even though she felt it unlikely to be a bacterial meningitis from the history, examination and results thus far. . Lumbar puncture performed at 2200 and clear colourless CFS fluid obtained and sent to the Lab. . At hand-over to the night Medical Registrar, she asked him to check the CSF results and act on them accordingly. . She did not administer antibiotics for the following reasons: i) There was no obvious focus of infection; if) patient was not acutely unwell; (ili) his WCC was not raised and his inflammatory markers were reassuringly normal. (iv) he was haemodynamically stable. (BP 110/70). [14] In her subsequent statement of 15 July 2003, Dr Vahdati-Bolouri referred to her previous report to the Sentinal Event Investigation and then stated as follows: "I would like to add that it was a very difficult case, and certainly on presentation, the patient did not appear acutely unwell. In fact he had been in to work on the day he presented. in addition, his symptoms had been going on for 2 days before he presented to hospital, which is presumably when he had contracted the illness, so that on presentation he must have had fairly advanced meningococcal septicaemia (which has an overall mortality of 40%). The fact that he was unable to mount a significant inflammatory response or a white cell response is also in support of this. This fact made the diagnosis even more difficult on presentation. I therefore feel that this 7 patient would have been unlikely to survive, even if antibiotics had been administered earlier, in view of the rapid rate at which he deteriorated whilst he was in hospital, despite subsequent antibiotic therapy and intensive care support." [15] Dr Little has made two statements in relation to events surrounding the hand-over, the first being for the purposes of the Sentinel Event Investigation, the second being for the Review hearing which took place in September 2004. The statement to the Sentinel Event Investigation, of course, covered the whole of his involvement with the deceased down to the time of death. It is to be noted that Dr Little did not have any personal contact with the deceased until 0500 hours, after he had been paged that the deceased was now displaying significant deterioration. [16] In relation to events surrounding the hand-over, Dr Little stated as follows in his Sentinel Statement made on 20 January 2002. "I arrived at work in the emergency department at or just before 2230h the evening of 13/12/01. I had a handover meeting with Or Melanie Farr, one of the two long-day registrars on arrival, the other, Or Mitra Vandati, being busy with a lumbar puncture on Mr Tangiora. I met with Or Vandati for a handover meeting at approx 2300h The evening on-call was discussed with me, including Mr Tangiora. Dr Vahdati's stated diagnosis at that time was of a viral illness. Or Vandati also said that she decided to perform a lumbar puncture after viewing the results of the combined blood h was abnormal with a low white cell count. I was asked to chase the results of the lumbar puncture. My understanding as a result of the meeting was that / should check the results of the CSF analysis and take further action if they were abnormal. Shortly after the meeting I was asked to review an ECG on Mr Tangiora. This showed a sinus tachycardia but no other abnormality. I felt this was consistent with Or Vandati's diagnosis and took no further action, other than to sign off the ECG as viewed." (17] In his statement to the Review Hearing, Dr Little stated as follows: ". . . At the time that I started my duty, Dr Vandati was busy administering a lumbar puncture on Mr Tangiora. I met with Dr Vandati at approximately 2300 hours for a handover meeting. Although I cannot recall now all of the details of that meeting, I do recall that Or Vandati told me that Mr Tangiora had been referred by his GP with a possible case of viral meningitis, and that the patient's combined blood count showed a reduced total white cell count. Dr Vandati advised that Mr Tangiora had presented with symptoms of viral illness, including a headache. I was told that the patient otherwise looked well, and that she was not unduly concerned bout his condition. While she considered that he had a viral illness, in light of the GP's concern and the abnormal blood count, she had performed a lumbar 8 puncture to rule out meningitis. She asked me to chase up the results of the lumbar puncture with the laboratory. I was not asked by Dr Vandati to review the patient at any time. In the normal course, once the results of the lumbar puncture were in, I would review the results, see the patient, and make any adjustments to his management plan as necessary. My handover from Dr Vahdati took place in the Emergency Department, but not at Mr Tangiora's bedside. I did not see Mr Tangiora at this time. Dr Vahdati did not have the patient's charts or clinical notes with her, and I did not review them. Given the very significant work pressures which the resident medical staff were operating under at Tauranga Hospital, unless a patient's condition was such as to require reassessment at handover, Dr Vandati's handover of Mr Tangiora was the usual mode of night time handover. Indeed given our workload, the opportunity to physically review each patient and his or her notes on handover was simply not available In the course of her handover, Or Vandati made no mention about the presence of polymorphs in the blood test results. Nor did she say anything about a left shift, nor make any mention of any pain experienced by the patient in his joints or muscles. Or Vandati was a more experienced registrar than myself. She had been a medical registrar for at least two years, and had passed the first membership exam for the Royal Colleg Physicians in the United Kingdom. On the information she conveyed to me at handover, I had no reason to question her working diagnosis of a viral illness." [18] On events subsequent to the handover, but which have relevance, Or Little stated as follows: "Shortly after my handover from Dr Vandati, I was asked to review Mr Tangiora's ECG. The ECG showed a mild sinus tachycardia with a slightly elevated pulse rate of 110 beats per minute, but no other obvious abnormality. This result was consistent with Dr Vandati's working diagnosis of viral illness. On its own, it did not cause me to alter her management plan for Mr Tangiora. I signed the ECG to record that I had reviewed it. From my subsequent review of the clinical notes, I see that laboratory staff reported toxic granulation in Mr Tangiora's white cells at 2319 hours. That data was indicative (although not diagnostic) of a serious infection. Quite aside from any other data, receiving that information would have been sufficient to cause me to review the patient, and in all probability to commence the administration of antibiotics. However, that information was never conveyed to me. As I describe below, I was not aware of it until I reviewed the patient's blood film at 0500 hours." [19] It is that evidence in the main which has been considered by a total of four independent specialists. (20] The first in point of time was Dr Graham Mills, Infectious Diseases Physician, at Waikato Hospital. Dr Mills provided a very comprehensive seven-page report in which he considered the Sentinel Event Investigation Report and the Draft Summary of Root Causes which that report had identified. Not all the root causes on which he commented 9 are relevant for the purposes of this appeal, but for those that are, his comments are as follows: 'Root Causes 1. The intrinsic virulence of this bacteria, Neisseria meningitisis, and its ability to induce a rapid patient deterioration. In this cause a changing clinical picture occurred. The severity and likely bacterial nature of the patient's illness did eventually become obvious but by this time efforts to reverse the decline were not successful. Dr Mills' Comment I agree completely with this initial statement. As already outlined a number of young adults presenting with meningococcal septicaemia have had a similar outcome within New Zealand. The illness is rapidly progressive and can only be altered by the appropriate timing of antibiotics. A clinical diagnosis therefore needs to be made before any laboratory confirmation can be provided. 2. The clinical decision not to give antibiotics earlier, when although subtle, signs of septicaemia were present and the haematology findings were abnormal Dr Mills' Comments The difficulty is that subtle signs of septicaemia are just that, they are subtle and can occur in any type of viral illness. From previous descriptions of people presenting with meningococcal sepsis the finding that may suggest that this presentation is one of an overwhelming bacterial illness rather than a viral illness is the degree of myalgias. Unfortunately, fever, headache and tachycardia are not discriminating enough to distinguish the two illnesses. In addition, a mild shift to the left of a white blood cell count does not necessarily reflect bacterial sepsis as suggested in the prior statement that the haematological findings were abnormal, implying that bacterial aetiology was most likely. A number of publications reflect this issue. I have chosen an older reference (Morens D, Am J Dis Child 1979:133:25-27 that states) "In our experience, the WBC count and differential could not differentiate between bacterial and nonbacterial disease' 3 Communication failures that resulted in the concerns of the haematology technician regarding the blood film not being appreciated by the junior medical staff caring for the patient. Dr Mills' Comments I disagree with this statement. The clinical notes written by Dr V indicate that she was well aware that there was a marked left shift in the full blood count. The decision was made by the Medical Registrar that this piece of information was not specific enough to warrant antibiotics. I have already alluded to the lack of specificity of this test. / disagree with the statement on page 21 of the draft report that "the initial blood test was pathognomonic of bacterial infection". 4. Decision to carry out a lumbar puncture (LP), the results of which were falsely reassuring. 10 Dr Mills' Comments The decision to carry out the lumbar puncture was appropriate. The findings of lumbar puncture in themselves were not falsely reassuring. They truly indicated that Mr Tangiora did not have meningitis. What was falsely reassuring was the failure to recognise that meningococcal sepsis can occur without meningitis and with a normal lumbar puncture result. The Registrar, Or V handed over to the night registrar Dr L, the need to check the findings of the lumbar puncture. If Dr L had been handed over that Mir langiora was a sick person who required a check of his lumbar puncture results and a subsequent review on the need for antibiotics than the outcome may have been different. " [21] Dr Mills then summarised his assessment as follows: "In summary, therefore, on reviewing the case notes and the draft report that has been written I find that the root case (sic) for this sentinel event was the decision not to give antibiotics due to a failure to recognise the subtlety of the early presentation of meningococcal sepsis. .. . The major action point is the establishment of a protocol with an extensive education campaign stressing a change in antibiotic prescribing behaviour as a result of our current meningococcal epidemic. Ongoing education needs to occur highlighting that meingococcal disease includes both septicaemic presentations in addition to meningitis presentations." (22] The next independent specialist to assess the situation was Dr Scott Pearson, Emergency Physician. He was provided with all the information that had been gathered from this incident, including statements from health professionals and he also had the Sentinel Event Investigation Report and Dr Mills' comments thereon. [23] Dr Pearson narrated the circumstances of the hand-over and the events leading up to it which had been undertaken by Dr Vahdati-Bolouri. He then went on to consider the actions of Dr Little and events which occurred right down to time of death. Under the heading 'Medical Error' he stated as follows: 'The cause of death is not disputed. Clearly earlier treatment with appropriate antibiotics may have altered the tragic outcome. There have been issues in the treatment of Mr Tangiora which could, retrospectively, have been improved. However, I do not believe that individual health professions (or more than one) failed to observe a standard of care and skill reasonably to be expected in the circumstances. The main reason for this findin for this finding is that, based on the extensive information proved to me and my own experience, other medical practitioners may have managed Mr Tangiora similarly with the same outcome. This is because of the difficulty in differentiating viral and bacterial septicaemia in the early stages. As a result of Mr Tangiora's death (and other deaths in young people from meningococcal disease) many hospitals around New Zealand have developed protocols (or are in the process of) for managing the febrile adult patient where no 11 source of infection is apparent. These protocols invariably involve early use of emperic antibiotics.' [24] The Medical Misadventure Unit then sought a second opinion from Dr Andrew Swain, Clinical Director of the Emergency Department at Palmerston North Hospital. In a lengthy report which identifies and sets out the statements which had been obtained from all parties associated with this matter, Dr Swain then made his assessment of the actions of Dr Vahdati-Bolouri. He stated as follows: 'Dr Vandati recorded an appropriate history and examination when she assessed Mr Tangiora on the evening of 13 December. No signs of bacterial meningitis were evident but a range of tests were undertaken and pain-relieving medication was given. The positive finding was a low white cell count which is often associated with a viral infection. However, there was also a marked 'left shift' in the white cells and a predominance of polymorphs. These findings are consistent with bacterial infection. The C-reactive protein level was positive for inflammation but this is a non-specific test. In the presence of headache, I consider it appropriate that the registrar performed a lumbar puncture and on observing clear and apparently healthy cerebrospinal fluid, the next stage was to await the result of its laboratory examination. It has been argued that Dr Vandati should have prescribed antibiotics at this point. In my opinion, there was only one indicator of bacterial (rather than viral) infection and that was the change in white cells. in all other respects, Mr Tangiora could have been suffering from a viral infection. In my opinion, opinion, it was not unreasonable to wait for the result of cerebrospinal fluid analysis before taking any further decision on treatment. Unfortunately, Dr Vandati went off duty at this point and I do not believe that the incoming registrar was able to give full consideration to Mr Tangiora's results in conjunction with a review of his clinical condition." [25] Dr Swain made the following comments on the blood count report provided to Dr Vahdati-Bolouri, at 2150 hours, when he stated as follows: "Were errors made? The initial blood count reported a high proportion of polymorphs (84%) in the total white cell count, accompanied by a left shift. These are usually features of bacterial infection, although left shift can occur in viral disease. The abnormalities appear not to have been flagged up in the transfer of information from the day to the night medical registrar. Another important piece of information which seems not to have been municated to medical staff was the presence of toxic granulation in Mr Tangiora's white cells. This is another marker of bacterial infection. In combination, I believe that these three haematological features should have prompted the administration of intravenous antibiotic. According to the laboratory technician, toxic granulation was reported at 2319 hours but I cannot find any evidence that this finding was communicated to Dr Little, the medical registrar, who would have been the person to act on it. The failure of medical staff o receive this information, or their failure to respond if they did receive it, could be considered an error. However, I cannot identify any specific individual or individuals as being responsible for this. Furthermore, I cannot say that the outcome would necessarily have been different if antibiotic had been administered shortly after 2319 hours." 12 He further commented as follows: "The medical registrar's initial assessment of Mr langiora was appropriate and a lumbar puncture was performed. The cerebrospinal fluid appeared normal to the naked eye and at that point, care was handed over the medical registrar on night duty whilst the results of aboratory analysis of the fluid were awaited. Unfortunately, aspects of the blood white cell count which pointed towards a bacterial cause for the patient's condition were not communicated or flagged up during the handover period." His final comment was as follows: 'I believe that Mr Tangiora required intravenous antibiotic before he was admitted to the ward if he was going to have a chance of survival and that clinical pressures on hospital staff prevented him from receiving the prompt and continuing medical attention he needed to counter a rapidly progressive and lethal illness." [26] The final independent report was that provided by Dr Peter Freeman, Clinical Leader of Emergency Medicine at Wellington Hospital. Dr Freeman was requested by Mr Heperi to comment on the information which should be communicated between incoming and outgoing registrars at handover. He stated as follows: "The information included in handover will depend very much on the differential diagnosis for each individual patient. Once a doctor has narrowed the diagnosis down to a likely clinical condition - handover will tend to include information relevant to that condition. Doctors are trained and encouraged to make decisions. This may mean a decision to omit information at handover that is not considered relevant. It would appear in this case that Or Vandati-Boloun considered the most likely diagnosis for Hohaia Tangiora to be a viral infection. This would have influenced the information included in handover - just as if she had considered a diagnosis of septicaemia - this would also have influenced the information exchanged. MY interpretation of the handover discussion is that the main point main point of discussion was for Or Little to Little to check the Lumbar Puncture results and treat the patient accordingly. The presence of neutrophil polymorphs and a left shift in the white blood cell examination indicates infection but is not specific for bacteria infection (1). I disagree with the comment made in the Sentinel Investigation report (page 21) which states that "the initial blood test was pathognomonic of a bacterial infection". It would be more accurate to say that changes in the neutrophil polymorphs were indicative of severe bacterial infection (2). The blood count was completed by the lab technician and the result phone through at 21.50, the film inspection (identifying toxic granulation) was completed at 23.19 - so this information was not available at the 23.00 handover." [27] Dr Freeman was asked the following question: "When and how should the information 'moderate left shift, toxic granulation' reasonably have been brought to the attention of the registrar and/or house officer when it was entered by a laboratory technician at 23:19 hours on 13/12/01? 13 Or Freeman responded as follows: "It is the responsibility of the doctor ordering tests to review, interpret and act on results. When test results are ordered but the doctor goes off duty before the results are known - it is that doctor's responsibility to alert the incoming doctor that there are test results outstanding. Policies vary from one hospital to another on how abnormal laboratory or radiology results are alerted to treating clinician or team.' [28] As final comments Dr Freeman stated as follows: "Whilst I do not find that any of the clinical staff treating Hohaia Tangiora in error, they were clearly disadvantaged by the workload they faced the night they cared for Hohala Tangiora. There are times in medicine when the number of patients to be assessed and treated exceeds the amount of clinical time available." There is little doubt that had Hohala Tangiora been diagnosed as suffering from a serious bacterial infection before, or as soon as he became shocked - the chances of him responding to antibiotics and surviving would have been greater. The sad outcome for Hohala Tangiora was not due to any single error by any individual but as a result from a virulent disease that presented non specifically to doctors who were frantically assessing and treating more patients than allowed them the necessary time to pick up on the subtle changes that were pointing more to a bacterial than a viral illness." [29] Mr Heperi submitted that on the basis of the opinions of Or Swain and Dr Freeman there was medical error on the part of Dr Vahdati-Bolouri in failing to inform Dr Little of vital information regarding the deceased's case, namely the drop in blood pressure that was recorded at 2215 hours and secondly, and as I understand it more importantly, the failure to pass on all the haematological information which had been provided by the laboratory at 2150, and of the fact that there was a film comment to follow in relation to those blood tests. He referred to the evidence of Or Little, that if he had received the information regarding the toxic granulation of the deceased's white cells, that information would have been sufficient to cause him to review the patient, and in all probability to commence the administration of antibiotics, 30] Ms Rice, for the Respondent, submits that the totality of the evidence from the specialists does not support a finding of medical error on the part of Dr Vahdati-Bolouri in relation to the circumstances identified. Counsel submits that that assertion takes no account of the valid working diagnosis which Dr Vahdati-Bolouri had of a viral infection. Further, counsel referred to the statutory provision of the Act which notes that medical 14 error does not exist simply because subsequent events show that different decisions might have produced better results. [31] Mr Lewis, Counsel for Dr Vahdati-Bolouri, supported Ms Rice in her submissions, but further submitted that there was no expert evidence which found that Dr Vahdati-Bolouri had fallen below the standard of care and skill to be expected in the circumstances. He submitted that it was not until after Dr Vandati-Bolouri had ceased her term of duty that an indicator for a bacterial infection was presented, and it was the failure of the system to have passed that information on to the relevant health professionals, and in particular Dr Little, which caused the delay in identifying the bacterial infection and the administration of antibiotics. [32] Mr Lewis further submitted that in any event there was no causative link between any alleged act or omission on the part of Dr Vandati-Bolouri and the deceased's death as the evidence was that this particularly virulent bacterial disease would have required him to be treated with antibiotics at a time earlier than the deceased's presentation at the hospital. DECISION [33] The death of the deceased was indeed a tragedy. An otherwise fit and healthy young man struck down in the prime of his life by what has been described as an extremely aggressive and virulent meningococcal bacteria. The deceased's death engendered wide-ranging investigation and report by the hospital administration itself, then an equally in-depth Coroner's Inquest, and now the review and appeal process under Accident Compensation Legislation. To put it mildly, the circumstances of the deceased's death have been thoroughly investigated and commented upon. [34] The inquiry which this Court is required to undertake in terms of Accident Compensation Legislation is to identify whether cover can be had by the deceased for his death as having been caused by medical misadventure, in this case, medical error. 15 (35] The statutory provisions which pertain to the deceased's claim for cover need to be correctly noted. The first point being that "personal injury" includes the death of a person. In the present case, the deceased suffered his personal injury during the currency of the Accident Insurance Act 1998, although a claim for cover was not lodged until after that Act had been repealed and replaced by the Injury Prevention, Rehabilitation and Compensation Act 2001. [36] In those circumstances, Section 360 of the 2001 Act states that a claimant has cover only if the claimant would have had cover under this Act and also would have had cover under the Act that was in force at the time the personal injury was suffered. [37] This provision has real significance in the present case, as the Medical Misadventure provisions of the 1998 Act were not as wide-ranging as they became when the 2001 Act came into force. [38] While the definition of "medical error" has not changed, under the 1998 Act that medical error had to have been committed by a registered health professional. Under the 2001 Act an important addition was made to the parties who could be considered as committing medical error where, by Section 33(2) of the Act it is stated: "33 Medical error (1) (2) If the treatment in question is being provided at the direction or under the management of an organisation (other than the Corporation) and the error cannot readily be attributed to a particular registered health professional involved in the provision of the treatment, medical error includes the failure of the organisation to observe a standard of care and skill reasonably to be expected in the circumstances." [39] As a first point, therefore, I rule as a matter of law that in the present case the appellant cannot seek to have cover by invoking Section 33(2) of the 2001 Act, as there was no such provision for organisational error in the 1998 Act. Therefore, even if organisational error could be established, cover could not have been had under that Act. [40] As an observation, I find that there were organisational errors and failings on the part of Tauranga Hospital and its Emergency Department procedures, which could well have 16 given rise to a finding of medical error in this case. Regrettably for the claimant, recourse to this statutory provision cannot be had. [41] The allegation made is of medical error on the part of Dr Vandati-Bolouri in terms of Section 33(1) of the 2001 Act, and of its equivalent in the 1998 Act which states: "(1) Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.' [42] The words "reasonably to be expected in the circumstances" mean that this Court is required to consider what were the standards expected in a busy Emergency Department in 2001. In that regard when considering the actions of a health professional, protocols that were then in place would need to be observed and noted, but protocols that may have subsequently come into existence cannot be regarded as relevant when assessing the standard of skill and care. [43] I make mention of this because it is the case that both the Sentinel Event Investigation Report and the Coroner's findings, identified a number of matters which required attention and for the putting in place of protocols so that the circumstances which led to the unfortunate death of the deceased might not be repeated. [44] As earlier noted, the alleged medical error is that of Dr Vandati-Bolouri and her failure, at handover to Dr Little, to give him all the information about the deceased's condition, and in particular information relating to the blood tests which she had earlier arranged to be taken and then analysed. [45] At the time the claim was made the error now claimed was not stated. The Medical Misadventure Unit considered medical error in general, and not specifically that particular error on the part of Dr Vahdati-Bolouri, with the main emphasis and inquiry being on whether Dr Vahdati-Bolouri ought to have commenced a regime of antibiotics during her watch, on the information which she then had. The consensus of opinion from the specialists was that there was no error on her part in not instituting a course of antibiotics, as the information which she had in her possession was equivocal and tended to suggest a viral infection. 17 46] However, it is the case that the reason for Dr Vandati-Bolouri initiating a lumbar puncture was specifically for the purpose of confirming or eliminating bacterial infection and this clearly indicates that she considered bacterial infection a distinct possibility. [47] The taking of the cerebrospinal fluid for analysis was in every sense a proper procedure and at the time it was taken it was noted to be clear, which was another pointer against bacterial meningitis. [48] The cerebrospinal fluid is a pointer and I here quote from Black's Medical Dictionary, 37th Edition - 'The all-important evidence is gained by lumbar puncture and examination of the cerebrospinal fluid (q. v.). In meningitis the pressure of this fluid is increased, changes in its appearance and constituents occur, and the infecting agent can usually be isolated from it. in meningitis the protein and the number of cells increase and the glucose decreases. A decrease in the amount of chlorides of the cerebrospinal fluid is characteristic of tuberculous meningitis. Increase in the number of cells may make the normally clear cerebrospinal fluid opalescent, as in tuberculous meningitis, or turbid, as in pneumococcal and pyogenic meningitis. Clinically, the symptoms are due to irritation of the meninges and rise in the intracranial pressure: headache, vomiting, photophobia, rigidity of the neck, Kernig's sign (q.v.), convulsions, paralyses, coma." [49] It was for this reason that the specialists were of the view that it was appropriate to await the cerebrospinal fluid analysis before making any further decision on treatment, and it was for this reason that Dr Vahdati-Bolouri specifically spoke to Dr Little and asked him to follow those reports up. [50] It is the case, as I find it, that although the emphasis seems to have been on the CSF analysis, Dr Vahdati-Bolouri did not impart to Dr Little all the information that she had obtained from the laboratory blood analysis carried out earlier. According to Dr Little, the only information she imparted was that there was a low white cell count and he was aware that this was also equally indicative of a viral infection. [51] Dr Little has stated he was not informed of the marked left shift in the white cells and the predominance of polymorphs, those two factors being consistent with bacterial infection. Dr Little was not told that a further report in the form of a blood film comment was still pending in relation to that blood analysis. 18 [52] It is the case that at the time of handover, that blood film comment had not been forthcoming, but equally, Or Little was not aware that such information would be forthcoming at some time during his watch. 53] The evidence is that the blood film comment came through at 2319 hours, being after handover and by which time Dr Vandati-Bolouri had left the hospital. [54] It has been found, and I need not go into detail, that the information imparted by the Laboratory to nursing staff was not passed on to Dr Little and he therefore remained unaware of it until it was too late. [55] It is the case that the blood film result which identified toxic granulation was a significant indicia of bacterial infection, and it is to be noted that the full CSF results were not finally advised until after the deceased's death. The decision to implement antibiotics was made because of the now presence of other signs which pointed to a virulent bacterial infection. [56] Dr Little has stated, and it is not contradicted, that Dr Vahdati-Bolouri did not mention the presence of polymorphs or of the marked left shift, or of the fact that other data would be forthcoming. Dr Little has stated that if he had been aware of the blood film comment as showing toxic granulation, that information would have been sufficient for him to review the patient and in all probability commence the administration of antibiotics. [57] The fact that he was not informed of that information cannot be put down to any act or omission on the part of Dr Vahdati-Bolouri, as it was an organisational error, but I find that if Dr Little had been aware that there was a blood film comment to come he could be assumed to have kept it in mind, as he did with the laboratory tests from the lumbar puncture. [58] As I have earlier noted, the two medical specialists who provided independent advice for the Medical Misadventure Unit, were primarily looking at the question of whether or not there was error in the delay in introducing the administration of antibiotics. The consensus was that on the information that was to hand no such error could be said to have occurred either by Dr Vahdati-Bolouri, or indeed Dr Little or any other member of the medical staff. 19 [59] However, I find that that is not the whole picture, as the Court was concerned to learn what obligations were there on the Charge Registrar to inform his/her replacement at handover in relation to the patients under his/her care. That issue has been considered directly by Dr Freeman, and earlier in this decision I have set out Dr Freeman's evidence on this matter, [60] Dr Freeman has said, unequivocally, that it is the responsibility of the doctor ordering tests to review, interpret and act on the results, and where test results are ordered and are not available when that doctor goes off duty, it is that doctor's responsibility to alert the incoming doctor that there are test results outstanding. [61] In the present case, Dr Vhadati-Bolouri failed in that duty. The failure resulted in Dr Little not being aware of the outstanding tests and therefore not being in a position to seek them out if necessary. He remained in ignorance of those results for a number of crucial hours after the information was imparted by the laboratory. (62] In all the circumstances, I find that the actions of Dr Vhadati-Bolouri in not imparting the full nature of the laboratory results, as known to her, and of the fact that further results were pending, constituted medical error on her part. She was in breach of the duty of care to be expected of her at handover. [63] The narrative of events which occurred from approximately 0100 hours onwards was that the deceased began to deteriorate, there were drops in blood pressure, and the evidence of a number of nurses who were attending him clearly establishes the fact that the appellant's physical condition was deteriorating. [64] It was 0530 hours before antibiotics were administered and as events too clearly showed, that was far too late. [65] The next issue that requires to be considered is whether the medical error which I have identified caused or contributed to the deceased's death. It is clear that the actual cause of death was meningococcal septicaemia, but if it is the case that on the balance of probabilities his death could have been prevented by the earlier implementation of 20 antibiotics, then I find as a matter of law it is the case that the acts or omissions of Dr Vahdati-Bolouri are causative of personal injury. [66] It is Dr Freeman's opinion that if the deceased had been diagnosed earlier with a bacterial infection, the chances of him responding to antibiotics and surviving would have been greater. [67] I note that the deceased was admitted to a ward at 2330 hours and it is the advice of Dr Swain that if the deceased had received intravenous antibiotics before he was admitted to the ward, he was going to have a chance of survival. [68] However, I do note that earlier in his report Dr Swain stated that he could not say that the outcome would necessarily have been different if antibiotics had been administered shortly after 2319 hours. (69] Dr Pearson notes that the mortality from meningococcal septicaemia is less than 5%, but without antibiotic treatment death is very likely. In this particular case he says that earlier treatment with appropriate antibiotics may have altered the tragic outcome. (70] Dr Mills advises that the cause of death was probably attributable to the non- administration of an appropriate antibiotic in the early hours after presentation. He also referred to a Ministry of Health paper entitled The Epidemiology of Meningococcal Disease in New Zealand in 2000, and noted that meningococcal septicaemia had a case fatality of 5.2%. 71] Taking account of those expressions of opinion, and of the fact that by 2330 hours a regime of antibiotics could have been implemented if the appropriate information had been made available to Dr Little, I therefore find that there must have been every prospect that with antibiotics administered some six hours earlier than they were, the deceased had a good prospect of survival. (72] Accordingly, therefore, I find that there is a causal nexus between the medical error and the subsequent death, although I hasten to add that the error on the part of Dr Vandati-Bolouri was not the sole error that occurred on that evening, as there was clearly 21 organisational error on the part of staff who cannot be identified. The "system" was clearly at fault as well. 73] In terms of Accident Compensation Legislation, however, it need only be the case that the particular error identified was contributory causative, and as I have found this to be the case in the circumstances of the late Mr Tanglora, it must therefore follow that he is entitled to cover for personal injury by medical misadventure. The decision to decline the deceased's cover is therefore quashed and is substituted by a grant of cover, as I have set out above. 74] The decision I have made will, I know, only be small comfort to the deceased's family, and while his death was indeed a tragedy, it is the case that by reason of the Coroner's Inquest and the Sentinel Event Report, significant changes have been made to processes in the Emergency Department at Tauranga Hospital, which are intended to address the shortcomings that were found to be there in the case of this deceased. It is likely to be the case that subsequently lives have been or will be saved because the deficiencies in the system which his death highlighted have now been addressed by positive change. [75] The appellant being successful, I allow costs to Mr Heperi of $3,500 together with qualifying disbursements. DATED this 16 th of June 2007 M J Beattie District Court Judge