Zamal v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND (2015] NZACC 385 ACR 62/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN FATIMA ZAMAL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 9 November 2015 Appearances: The appellant in person D Tuigeregere for the respondent Judgment: 15 December 2015 RESERVED JUDGMENT OF JUDGE JH WALKER 1] The issue in these proceedings is the refusal of the Accident Compensation Corporation (the Corporation) to approve the appellant, Ms Zamal's (the appellant) claim for treatment injury. Background [2] The appellant developed acute bloody diarrhoea on 5 December 2010 while holidaying in Fiji and was admitted to a Fijian Hospital. Faecal tests done at the hospital were negative for faecal pathogens. [3] After an overnight stay the appellant transferred herself as a walk on passenger to Auckland and was admitted to the Auckland City Hospital on 9 December 2010 with diarrhoea and blood stained stools along with fever, abdominal pain and vomiting. [4] She was treated as a presumed infective ASC (acute severe colitis). The Gastroenterology Team became involved on 12 December 2010. Faecal specimens from the appellant were collected and sent to LabPlus on 9 December 2010 and 10 December 2010. No pathogens were isolated from the specimen collected on 9 December 2010. From the specimen collected 10 December 2010, a strain of E.coli was isolated that could possibly have been a pathogenic strain. [5] An interim report on 13 December 2010 from the microbiological lab to the clinicians reported a possible pathogenic strain of E.coli. [6] The Infectious Disease Team's review was undertaken and the impression was of an E.coli culture, suspicious for enterotoxogenic E.coli. [7] On the basis of the initial information, and after consultation of the infectious disease specialists, she was given supportive treatment as it considered the antibiotics would not be helpful because the acute colitis was thought to be due to an infection rather than a chronic inflammation bowel disease. Antibiotics were withheld at this stage on the advice of the Infection Diseases Department and intravenous steroids were not indicated in this setting where infection was presumed. [8] The appellant was managed on this basis over the coming days which included supportive management with blood transfusion, Dietary Team input and several reviews and abdominal x-rays. However clinically she made little improvement over the next few days. [9] The applicant's colitis remained severe. She had a fever, very abnormal laboratory markers and thumb printing on her plain abdominal x-ray. On 17 December she was still anaemic. [10] A flexible sigmoidoscopy was undertaken and showed severe endoscopic changes in the rectum and sigmoid colon. In particular there was granularity, friability and oedema of the mucosa and deep ulcerations photographically documented. She was seen by the Surgical Team which included Mr Rowan Collinson, Professors Bryan Parry and Ian Bissett on 17 December. [11] On the basis of the clinical, laboratory and endoscope findings the applicant undertook a laparoscopic total colectomy and end ileostomy on 18 December 2010. [12] This, in the opinion of Mr Rowan Collinson, Colorectal and General Surgeon, was on the basis that there was an acute severe episode of colitis, most likely on the basis of enterotoxogenic E.coli, but on the understanding that idiopathic ulcerative colitis could not be excluded. [13] He states recovery went extremely well and she was discharged six days after the procedure. [14] A treatment injury claim was filed by the appellant on 24 July 2012. This was undertaken through her general practitioner Dr Shobi Gopal. Her injury was stated to be total colectomy and included in the symptoms of the injury "delay in diagnosis of ulcerative colitis that lead then to undergo total colectomy on 18/12/2010". [15] The claim, in respect of how it has affected her daily activities stated: Delayed diagnosis leading to worse outcome as a result of surgery affected her life due to prolonged hospital stay, big hospital bills causing stress and worry. Had to manage colostomy. [16] Attached to the claim were various clinical notes including a report from Dr David Rowbotham, Gastroenterologist and Endoscopist, dated 5 April 2011. The Corporation obtained a copy of a letter to the Auckland District Health Board from Mr Rowan Collinson dated 9 September 2012 in response to a complaint from Ms Zamal. [17] Her ACC claim was followed up by a letter from Ms Bawden, Barrister for the appellant, which enclosed a report obtained by the appellant from Dr John Wyeth dated 18 September 2012. [18] ACC responded to the application on 1 October 2012 and sought more time to assess the claim. [19] A further report was received from Dr J.H. Hedley, Internal Medical Specialist, dated 31 October 2010 [20] Subsequently on 1 March 2013 The Corporation wrote to the appellant stating: Thank you for your patience while we assessed your claim for a treatment injury. After careful consideration, we are sorry to say your claim has not been approved. Unfortunately, this means we are not able to help with the costs of treatment or other support for this injury. Attached to this letter was a treatment injury report. [21] A letter from the appellant dated 17 May was received by the Corporation on 28 May 2013 and this constituted the application for a review. Accordingly the review was set down and heard on 5 November 2013 and concluded on 27 November 2013. [22] On 3 December 2013 the reviewer issued a decision dismissing the application and finding that the ACC correctly declined Mrs Zamal's claim for a treatment injury . [23] Mrs Zamal filed a notice of appeal on 4 February 2014. The Law [24] Pursuant to s 20 of the Accident Compensation Act 2001 (the Act) the claimant is entitled to cover for "personal injury" which is suffered in New Zealand after 1 April 2002. S 20(2)(b) provides that cover applies to a "personal injury that is treatment injury suffered by the person". [25] The "treatment injury" provisions are found in ss 32 and 33 of the Act. [26] Section 32(1) to (3) provides: 32 Treatment injury (1) Treatment injury means personal injury that is- (a) suffered by a person- (i) seeking treatment from 1 or more registered health professionals; or (ii) receiving treatment from, or at the direction of, I or more registered health professionals; or ifi) referred to in subsection (7); and caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including- i) the person's underlying health condition at the time of the treatment; and ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: (a) personal injury that is wholly or substantially caused by a person's underlying health condition: (b) personal injury that is solely attributable to a resource allocation decision: (c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. (3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury. [27] The term "treatment" includes, as set out in s 33, the following inter alia: [a] The giving of treatment. [b] The diagnosis of a person's medical condition. [c] The decision on the treatment to be provided (including the decision not to provide treatment). [d] A failure to provide treatment, or give treatment in a timely manner. [28] As stated in the submissions of counsel for the respondent: A treatment injury required to be satisfied were summarised in the District Court in Fifield 8/09: [22] ... the applicant must establish the following: (a) A personal injury; (b) Suffered at the time when she was taking or receiving treatment; (c) From a registered health professional; (d) A causal link between the treatment and the injury. In addition to the foregoing, it must be established that the treatment injury was not a necessary part, or ordinary consequence of the treatment, taking into account all the circumstances of the treatment including; (i) The person's underlying health condition at the time of the treatment; and (ii) The clinical knowledge at the time of the treatment. [29] The onus is on the appellant to establish entitlement to cover. Medical Evidence [30] The applicant's doctor Dr Gopal completed the claim form for the applicant on 19 April 2012. [31] The accident date was identified as 9 December 2010 and the claim relies on a delay in diagnosis of ulcerative colitis: . . .leading to Ms Zamal undergoing a total colectomy on 18 December 2010. [32] The notes attached to the claim included medical records from the White Cross Health Care of 8 December 2010 prior to admission and also medical records from the Auckland District Health Board. [33] In addition it would appear that a complaint had been made by the appellant to the Auckland District Health Board in respect of treatment. As a result, one of the treating specialists, Mr Rowan Collinson prepared a report detailing the treatment provided to the applicant from 9 December 2010. [34] He reports that the appellant presented on 9 December 2010 with a four day history of bloody diarrhoea having returned from Australia. A specimen was taken and sent to the laboratory for assessment. He stated the appellant was treated "as a presumed infective ASC (acute severe colitis) and the Gastroenterology Team became involved on 12 December 2010. He states the microbiologist laboratory provided a verbal report on 13 December 2010 with a finding of E.coli cultured in a stool specimen from 10 December. The Infectious Diseases Team review was undertaken and the impression was of a "E.coli culture suspicious for enterotoxigenic E.coli". [35] The appellant was managed on this basis in the subsequent days and was seen by Mr Collinson, Professor Bryan Parry and Professor Ian Bissett on 17 December 2010. On the basis of the clinical, laboratory and endoscopic findings the appellant underwent a laparoscopic total colectomy with end ileostomy on 18 December 2010. This was on the basis that: ... this was an acute severe episode of colitis, most likely on the basis of enterotoxigenic E.coli, but on the understanding that idiopathic ulcerative colitis could not be excluded. [36] Mr Collinson further notes, in his report on 9 September 2012 that the appellant's recovery proceeded extremely well following the surgery and that the applicant was discharged six days post operatively. Mr Collinson notes the histology reports from the total colectomy specimen were reviewed and the results were consistent with: ... an infective colitis, and in fact less consistent with inflammatory bowel disease (i.e. ulcerative colitis). [37] Mr Collinson also described the treatment provided to the appellant up to January 2012, noting, inter alia, that the: ...she continued under my care and apart from a minor episode of a small bowel obstruction, has been making very good progress ... [38] Mr Collinson concludes: Hopefully, the above information clarifies some of the initial management of Fatima in December 2010. Comment has been made that surgery took place on the presumption of an E.coli infection and that the results were not checked. On the contrary, we were acting on immediate verbal information from the laboratory at all times and in fact to wait for the definitive result (as signed out on 22 December 2010) could well have endangered Fatima's life in the setting of ASC. The unusual presentation did not fit into the typical presentation of an infective or inflammatory colitis one way or the other, and the important thing is that appropriate clinical decisions were made in the setting of atypical presentations. As an aside, I note that the ACC 2154 [i.e. the treatment injury claim] was completed by Dr Gopal. It has always been my understanding that the patient's general practitioner is Dr Sharad Paul, which is why correspondence has been addressed to him. If indeed Dr Gopal is the patient's general practitioner, I was not made aware of this and therefore Dr Gopal would not have been included in my correspondence. This may explain some of the inaccuracies found in the ACC 2152. [39] As noted the appellant's then barrister Ms Bawden forwarded a report obtained by the appellant from Dr John Wyeth dated 18 September 2012. He is a gastroenterologist and provided opinion regarding the care treatment provided to the appellant in 2010. [40] A number of questions were put to him which he answered accordingly: 1. Was the diagnosis of E.coli reasonable? Points to note: a. Acute onset of bloody diarrhoea is consistent with an infectious aetiology. Other causes need to be considered and excluded including inflammatory disease and ischaemic colitis. b. E.coli, or more importantly more virulent forms of E.coli colitis called Enterohaemorrhagic E.coli (EHEC) can present in this way. C. EHEC would be diagnosed by the presence of the organism and also the toxin in the stool. The organism will usually be present in the stool for up to 6 days after symptoms first begin. In this case faecal samples were definitely obtained on Day 5 and Day 6 of the illness, and possibly also on Day 4 whilst still in Fiji. No organism or toxin was found according to the copies of laboratory reports supplied for review d. There appears to be an error in the hand written medical file on Day 9, 3 December and also Day 10, 14 December. A note from the registrar on Day 9 states "E.coli +ve on stool spec" and on Day 10 Infection Control has written in the notes "Patient has a toxic ecolir infection (sic) (VTEC)". There are no laboratory reports on record supporting these statements. e. Other organisms such as Campylobacter, Shigella, Yersinia and Salmonella could present with a similar history. There was no record of these organisms being identified on faecal specimens. f. in view of this the diagnosis of EHEC should have been reviewed after he repeated negative faecal specimens for the organism and also the absence of toxin. Conclusion: E.coli was an appropriate and likely diagnosis on first presentation. The repeated absence of the organism and toxin in faecal specimens subsequent to presentation should have led to a review of the diagnosis. What appears to be an error in the written notes regarding the laboratory findings on E.coli probably influenced management. 2. Was the associated decision to isolate and withdraw antibiotic treatment reasonable? Antibiotic therapy is not recommended for EHEC. It does not shorten the duration of the illness and there is evidence from animal models that antibiotics increase excretion of the toxin potentially worsening the disease. 3. Was the question to remove the colon, without waiting for confirmation of the E.coli diagnosis reasonable? Points to note: a. Colectomy was performed on Day 14 of the illness and after 10 days of in hospital management. b. By definition she had developed an acute severe colitis. Acute severe colitis should be defined as six or more bloody stools daily with evidence of systemic toxicity as demonstrated by fever, tachycardia, anaemia or an elevated erythrocyte sedimentation rate (ESR). C. Colectomy is indicated if there is no response to medical therapy and better outcomes, including reduced mortality, are obtained if it is performed early in the illness. d. A trial of medical therapy would usually include use of intravenous steroids for at least 72 hours, if there is confidence there is no infectious aetiology. e. Colectomy for infectious acute severe colitis is rare and is usually only required for Clostridingifficile pseudomembranous colitis. Conclusion: Colectomy was appropriate as an acute and severe colitis was present. The aetiology of this colitis, whether it be infectious or inflammatory, is not overly relevant once this degree of severity has been reached. 4. Would the same surgery have been necessary regardless of the misdiagnosis? Or would it have been necessary in any event to treat the ulcerative colitis? Points to note: a. Acute severe colitis unresponsive to medical therapy requires colectomy to reduce risk of perforation, sepsis and death. b. A trial of therapy for ulcerative colitis using intravenous steroids could have been given for a 72 hour period prior to deciding on colectomy. Conclusion: Surgery was required for the severity and duration of illness regardless of the diagnosis. All treatment options were not trialled prior to performing colectomy and in view of this there is a possibility surgery could have been prevented. 5. Did her condition deteriorate during the delay prior to the correct diagnosis? Her condition was being closely monitored in hospital with adequate and appropriate support measures including hydration, blood transfusion and nutritional support. 6. Did the treatment regime exacerbate her condition? Points to note: a. In retrospect there is still uncertainty regarding the exact diagnosis. b. In my opinion, from experience and information provided to me about this case, I do believe ulcerative colitis is the most likely diagnosis. Reasons to support this are listed: i. Previous history of iron deficiency anaemia 6 months before admission. ii. Absence of infective agent. iii. Typical findings of ulcerative colitis on flexible sigmoidoscopy. iv. Chronic features of colitis on flexible sigmoidoscopy biopsy. V. Recurrent disease post-operatively. vi. Acknowledged difficulty in interpretation of pathology specimens in acute stages of illness. Conclusion: In this case of presumed ulcerative colitis, her care in hospital would not have induced a remission in her disease prior to colectomy; however she had adequate and appropriate symptomatic support and care in hospital. [41] Under Optimal Care he states: Her initial assessment and differential were appropriate. The handwritten, and probably inaccurate, record of E.coli being found on a stool specimen probably influenced the ongoing management of this patient. Laboratory reports would be available on line for cross checking. [42] In summary Dr Wyeth says: Antibiotic treatment is not recommended for E.coli colitis. A trial of steroid therapy, though debatable for an infectious colitis, is generally considered appropriate in the management of a sub-fulminant colitis. The likelihood of success is in the order of 40-70%. If a response had been obtained with steroid therapy, colectomy may have been deferred or avoided Dr Hedley [43] A Treatment Injury report was received from Dr John Hedley dated 31 October 2010. Under the heading External Clinical Advisor Report he states: 1. The general medical care was of a high standard, but the delay in diagnosis was almost completely as a result of the lab's suspicion of the pathologenic form of E.coli. This was the premise of the general physicians treating her, and the INF diseases specialist. We now know this was incorrect, having received the final micro report. 2. The issue is when does the Oxford 3 - Day Rule for acute severe colitis have been invoked, and the diagnosis of infective colitis discarded. The definitive test was the flexible sigmoidoscopy done on the 17" showing deep ulceration. 3. This path should ideally have been chosen on the 12" with hystoenterology and surgical consultants consultations at that time. If E.coli had not been regarded as the underlying cause, then treatment with IV antibodies, steroids, and possibly infliximals could have been given, and may have precluded colectomy. [44] Subsequently the Corporation also obtained further records from the Auckland District Health Board regarding the LabPlus results. These were not available to Dr Wyeth or Dr Hedley at the time of making their reports. [45] There are 2 documents provided by LabPlus. One dated 21 November 2012 is a report prepared by Maree Gillies, Technical Head, Microbiology. The second dated 23 November 2012 is a letter from Ross Hewett, Laboratory Manager, LabPlus. [46] Ms Gillies report noted: .. . Microbiology culture results generally take 3-5 days workup to reach a final report - and longer if the preliminary testing indicates the need to refer to national testing service for further testing or verification of results. She confirms two faecal samples were sent to the lab dated 9 December 2010 and 10 December 2010. She states results were reported to show: No Salmonellae, Shigellae, Campylobacter or Yersinia isolated No Aeromonas isolated No Vibrio isolated No E.coli 0157 isolated Due to the clinical presentation of this patient additional testing for verocytotoxin-producing strains of E.coli will be carried out at the national reference centre, ESR. Further report to follow. [47] The second report reads: No Salmonellae, Shigellae, Campylobacter or Yersinia isolated No Aeromonas isolated No Vibrio isolated Due to the clinical presentation of this patient additional testing for verocytotoxin-producing strains of E.coli will be carried out at the national reference centre, ESR. Further report to follow. Growth of E.coli The E. Coli strain isolated from the patient's stool has phenotypic characteristics (failure to ferment sorbitor) consistent with a diarrhoeagenic strain. The isolate has been referred to ESR: Health for verocytotoxin testing. [48] She states: In lay terms this means that at the time there was a high index of suspicion from the preliminary testing that there was potentially a toxin producing Ecoli present - but this would require referral for further testing. E.coli are a normal part of bowel flora and presence of Ecoli in itself is not of concern. [49] Ms Gillies states the final results from ESR became available on 22 December 2010 and the Ecoli strain isolated from the patient was shown to be non verocytoxin producing. Both preliminary reports were superseded and replaced by the 'updated report'. [50] She states in summary the medical team was provided with preliminary reports on 11 and 13 December where there was indication of a potential pathogen (which could not be eliminated as a risk at that time). [51] It should be noted that verocytotoxin is a shiga-like toxin produced by the E. coli strain 0157 and Shigella type 1. [52] The letter from Mr Hewett confirmed the above procedure and reports provided. [53] This LabPlus information was later supplied to Dr Hedley and he was asked to comment on the following: While the subsequent diagnostic tests demonstrate that the client did not have E.coli was the treatment path taken by the medical team reasonable in the circumstances when considering the information at hand, and without using the benefit of hindsight? [54] Dr Hedley's response of 3 December was as follows: 1. The E.coli was never highlighted in the lab reports as being a very likely pathology. The treatment path chosen was based on a higher probability of the presence of pathogen E.coli than existed. 2. It would have been simple to perform earlier bedside sigmoidoscopy - biopsy. 3. The three day rule means the appropriate surgical and other consultations needed to be in place at that time, therefore although the treatment given was reasonable, there were deficiencies in the use of steroids, inflexomac antiobiotics and earlier surgery. Dr Kevin Luey [55] The Corporation supplied additional information from LabPlus, together with information provided by the Auckland District Health Board for specialist comment from Dr Luey, a gastroenterologist. [56] Dr Luey responded to the following questions on 19 February 2013. Without using the benefit of hindsight should a different diagnostic and management path have been followed? Please explain your reasoning. A Undoubtedly alternative diagnoses such as ulcerative colitis would have been considered when she presented to Auckland Hospital but the acute onset while holidaying in Fiji and some vomiting during the initial stages would have been in more in favour of an infectious colitis. The verbal report that the E. Coli was isolated would have also reinforced this diagnosis so the initial plan to manage her as an acute infectious colitis was reasonable and was backup by opinion from an Infectious Disease Physician. An earlier flexible sigmoidoscopy is unlikely to have changed management as both the endoscopy findings and history findings on biopsies would still have been non specific and therefore would not have distinguished between the acute infectious colitis and the acute ulcerative colitis. Even with hindsight, one cannot be certain that her illness was due to ulcerative colitis rather than an acute infectious colitis. Negative stool cultures do not rule out the presence of pathogens though the absence of toxins makes it unlikely that she had a toxigenic E.Coli. Therefore, faced with the information available at the time, there was no indication to take a different diagnostic and management path. Should steroid and immunosuppressant treatment have been used earlier in admission given the concern with toxigenic E.coli? A One would be very reluctant to use steroids and immunosuppressant agents if one thought the illness was due to a toxic E.coli infection. There could be an argument for trying steroids and immunosuppressant agents when the colitis wasn't improving and surgery was being seriously considered. However, this is a clinical decision and undoubtedly there will be clinicians who argue for, and clinicians who argue against giving steroids and immunosuppressant agents a trial for a few days before resorting to surgery. In the end it comes down to how ill the patient is at the time and the clinical judgement of the Medical Teams managing the patient at the time. The decision appears to have been a collective decision of General Physicians, Infectious Disease Physicians, Gastroenterologists and Surgeons so it would be difficult to argue against the decision not to use steroids or immunosuppressant agents prior to the surgery in this case. If steroids and anti immunisation treatment had been used earlier in the admission would the outcome (colectomy, ileostomy and ileoanastomios) have been any different? A Severe acute colitis from any cause whether it be infectious or ulcerative colitis does have a high colectomy rate of around 40% even when steroids are used, but the ACT trials show that this can be reduced to as low as 10% if infliximab is used but these trials included patients with only moderately sever ulcerative colitis and not just acute severe colitis. There therefore would still be a significant chance of a colectomy being necessary even if steroids and immunosuppressant agents were used. Early data also suggest that these agents only postpone the need for a colectomy in many cases and more research is needed on this question. Discussion and Analysis [57] It is accepted in terms of s 32 of the Act that the appellant was being treated by one or more health professionals. [58] Section 33 of the Act sets out as follows: 33 Treatment (1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes a) the giving of treatment: b) a diagnosis of a person's medical condition: a decision on the treatment to be provided (including a decision not to provide treatment): d) a failure to provide treatment, or to provide treatment in a timely manner: ... [59] The appellant contends is that the surgery could have been prevented by early diagnosis and medical intervention based on a diagnosis of ulcerative colitis. Her concern, as she stated in her submission to the review, and also voiced at the hearing was that on admission she was asked for a stool specimen and that she was treated as a presumed infective E.coli patient without any factual basis. [60] In her submissions at the review she included: Initial clinical management focussed on treating Mrs Zamal on the assumption that she had infectious colitis, despite no confirmation of positive test results of E.coli; . Contrary to the lack of evidence of E.coli, numerous instances in the clinical notes the attending medical team recorded positive E.coli results from specimens and either E.coli as a diagnosis or the presumed diagnosis; . As a result of this error, Mrs Zamal's treatment plan towards ulcerative colitis was skewed ... resulting in surgical intervention; and No other presumptions or interim diagnosis was put in place for her symptoms after the above presumed E.coli infection was communicated among the doctors present at that time. [61] As later reports from LabPlus indicate (not available at the review hearing), it was only after the "verbal" report from the microbiology laboratory team four days later on 13 December 2010 that the Infectious Disease Team review was undertaken and "the impression" was of an E.coli culture. [62] The appellant is of the view, that no other investigations were done to monitor the extent of the severity of the E.coli infection and it was only after four days, on the 17 December 2010, that the Gastroenterology Team were asked for input. She stated: The much needed sigmoidoscopy was only after eight days of prolonged hospital stay as the infectious disease patient with E.coli, revealed and demonstrated severe inflammation to my colon. [63] She refers to Dr John Wyeth's report where he said: There seems to be an error in the handwritten medical file that states, E.coli positive on stool specimen. There was no laboratory reports on record supporting these statements. (64] She states: Dr John Wyeth also advised "colectomy is indicated if there is no response to medical therapy and medical outcomes that ... a trial of medical therapy would usually involve use of intravenous steroids for at least 72 hours". He also stated that all treatment options were not trialed prior to performing colectomy and therefore possible surgery could have been prevented. [65] As stated above, s 32(1), (a), (b) and (c) must be satisfied to determine a person has suffered a treatment injury. [66] It is accepted s 32(1)(a)(1) is satisfied in that the appellant received treatment from health professionals. [67] The second step is that it must be established that personal injury was caused by treatment. [68] As Counsel for the Corporation identifies, the questions are: [a] Whether there were any failures by the registered health professionals, including a failure to provide a timely diagnosis; and [b] Whether any such failure caused the need for a total colectomy or whether earlier alternative treatment would have avoided the need for a total colectomy. [69] Accordingly, it is important to look at the care provided to the appellant. The evidence supports that she was treated by a number of specialists from various medical fields including surgeons, enterologists and an infectious disease physician. There was also input from the laboratory. Reports were obtained, as stated from the laboratory manager of the Auckland District Health Board and from Ms Maree Gillies, the technical head. [70] What these reports do bring to light is that although it has been suggested in some of the evidence that the lab reports indicated prior to the date of the operation that there was no presence of E.coli. This is not strictly correct and it was not the sole matter that required consideration. [71] The LabPlus reports indicate that there was sufficient uncertainty to require additional testing and then report to the medical team prior to the operation indicating a potential pathogen. This may have been recorded as 'Patient has a toxic E.coli infection (VTEC) which indicates a more positive finding However, this does not distract from the LabPlus evidence that the information provided in the preliminary reports indicated a potential pathogen (which could not be eliminated as a risk). [emphasis added] [72] Dr Wyeth's comments that "The handwritten, and probably incorrect record of E.coli being found on a stool specimen probably influenced the ongoing management of this patient" and that "laboratory reports would be available on-line for cross checking" are accordingly incorrect. It is accepted his comments were made prior to the LabPlus reports being received. However, at the date of operating, there was an indication of potential pathogen and it was not until 22 December that the E.coli strain from the appellant was shown to be non verocytotoxin producing. [73] It is accepted, also by Dr Wyeth and Dr Luey, that the appellant was closely monitored and that her health was deteriorating. [74] Dr Hedley accepts a high standard of care but suggests alternate treatment which is at odds with the other health professionals taking into account the appellant's presentation at the time and the imperative to treat the appellant urgently given her deterioration. [75] It is significant in fact that both Dr Wyeth and Dr Luey acknowledge that the appellant's diagnosis remains uncertain. Even in hindsight they do not state with certainty that she had ulcerative colitis in her presentation in December 2010 as opposed to infectious colitis. [76] Dr Wyeth states antibiotics were not appropriate. Dr Luey states an earlier sigmoidoscopy was unlikely to have changed management as as the endosope findings and histology findings on biopsies would still have been non-specific and therefore would not have distinguished between the acute infectious colitis and acute ulcerative colitis. [77] Accordingly, it should be noted that Drs Wyeth and Luey, together with the operating surgeon, Mr Rowbotham acknowledged the appellant's diagnosis remained uncertain, even after the operation and the LabPlus report of 22 December that the E.coli strain was non vercytoxin. [78] The appellant, in her oral submissions, referred to the fact that her sister had recently been treated for ulcerative colitis. However, the severe symptoms Mrs Zamel presented, and the reports from LabPlus, support that the diagnosis of infective colitis were highly likely to be accurate. [79] In respect to the question whether alternate treatment could have avoided a colostomy Dr Hedley says that it may have precluded a colostomy. Dr Wyeth however opines that the colostomy was required because of the severity and duration of her illness regardless of the diagnosis. The likelihood of surgery prevented was "a possibility only". It is submitted by counsel for the Corporation accordingly, that this does not meet the legal threshold. [80] The appellant has also relied on documentation from her GP but the difficulty as has been expressed by counsel for the Corporation, is that Dr Gopal's opinion is that he does not have the expertise that Dr Wyeth and Dr Luey have in this field. [81] In the review hearing the reviewer states Mrs Zamal contended that surgery could have been prevented with earlier diagnosis and medical intervention for ulcerative colitis. She relied on the opinion of Dr Gopal, Dr Wyeth and Dr Hadley in support of her case. The reviewer states "At best, I find the evidence confirms a loss of chance, in other words a lost opportunity to earlier diagnosis and treatment of ulcerative colitis". [82] I support the position of the Reviewer and find that any lost opportunity of early diagnosis and treatment would not be sufficient to meet the test of causation. Causation remains a separate, and essential ingredient to prove a treatment injury. [83] In respect to "loss of chance" the case of ACC v Ambros' states: Whatever the future developments and loss of chance in other jurisdictions, the loss of chance analysis seems to us to be incompatible with the accident compensation regime. Under a no fault regime, either there is cover or there is not. ... in terms of 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 identiable added injury, cover would be available for that injury. [84] The onus lies with the appellant to prove that the personal injury has been caused by treatment which includes either s 33(1)(a), (b), (d) or (e) in these particularly circumstances. [85] Based on the medical evidence on the file it is accepted that the majority medical consensus of the specialists is an acceptance that a diagnosis of presumed infective ASC was appropriate, and the likely diagnosis of presentation. There is nothing to suggest that the time taken prior to the operation taking place amounted to a failure to provide appropriate treatment. [86] It was clear that the medical team were very aware of the time factors and the need to address her condition. It is accepted that the surgery was required because of the severity and duration of the illness regardless of the diagnosis. [87] The appellant relies on an assumed diagnosis of ulcerative colitis which is not borne out by the evidence. Accordingly it is accepted that, given her presentation, [2007] NZCA 2004 paragraph [46] the steps were taken to ensure that medical treatment reflected the best outcome based on the information known at the time was appropriate. [88] Based on the above I do not find that the appellant has discharged the onus. [89] Accordingly this appeal is dismissed. [90] In the circumstances costs are to lie where they fall. Judge J H Walker District Court Judge ACR 61-14-Zamal