Anning v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 182 /99 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GEORGE LEONARD ANNING (DCA 425/98) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURRANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th of April 1999 APPEARANCES Mr G L Anning in person Ms S Scott counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover under section 5 of the Act for personal injury by medical misadventure. BACKGROUND In November 1993 the appellant, then aged 74 years, was referred by his GP, Dr Cox to Mr John Mercer, a Christchurch Vascular Surgeon. The reason for this referral was that Dr Cox had diagnosed that the appellant suffered from intermittent claudication affecting both legs. Claudication is described in 2 Blacks Medical Dictionary as a cramp like pain that occurs in the legs on walking. It may cause the sufferer to limp, or if severe, stop him or her from walking. The usual cause is narrowing or blockage of the arteries in the legs due to artherosclerosis. Intermittent claudication occurs when a person has to stop every so often to let the pain, caused by the build-up of waste products in the muscles, subside. The appellant's claudication had got to the stage where he found it intolerable. Dr Mercer examined him on the 30" November 1993 and arranged for him to have an aortogram of the iliofemoral arteries. It was Mr Mercer's opinion that his symptoms were due to his peripheral vascular disease. The appellant underwent an aortogram in December 1993 which disclosed extensive combination disease involving the iliofemoral and tibial arteries. Mr Mercer determined that the first step was to get more blood flow into both femoral arteries and he considered the safest way of doing that would be an axillo-bifemoro graft. Mr Mercer placed him on the waiting list at Christchurch Hospital for this operation. On the 17th of February 1994 Professor John Morton, Associate Professor of Surgery at Christchurch Hospital, assisted by Mr J Swinnen, carried out a left axillo-bifemoral Dacrom bypass graft. The subsequent history is well summarised in the report of the Medical Misadventure Advisory Committee which states as follows: His recovery was slow, complicated by a chest infection, and on 13 June 1994 he was readmitted with a clinically thrombosed bypass graft. He underwent an aortogram however Mr Morton and Mr Mercer felt that, as he was in no immediate danger of losing his limb, further surgery was not justified. In early 1995 Mr Anning contacted Mr Shirer regarding the possibility of further surgery, as his legs, particularly the right, were worse than before the original surgery. He underwent extensive tests including a Duplex scan which revealed a 95% stenosis in the right internal carotid artery, therefore on 29 March 1995 he had a right carotid endarterectomy. On 22 May he underwent an angioplasty for the left iliac artery system, and on 30 May grafts were passed from the left common femoral artery, to the right profunda femoris artery and to the right popliteal, and also to the left popliteal. Mr Anning is now able to play bowls, mow lawns, 3 etc, again however he feels that inadequate tests were carried out before the initial surgery and that he was significantly disabled as a result of that surgery. In November 1995 the appellant lodged a claim for cover under the Act alleging medical misadventure. In a letter accompanying the claim form Mr Anning alleged that the Christchurch surgeons who had performed the initial operation were incompetent and he was in effect seeking to recover costs of the further operations carried out by Mr Shirer. In particular Mr Anning referred to the discovery of a blocked carotid artery in the right side of his neck which was unblocked in a subsequent operation and thereby reduced the possibility of a stroke. As is the practice in claims for medical misadventure, reports were sought from all treating health professionals and reports were obtained from Mr Mercer and Professor Morton, including the surgery notes made by Professor Morton at the time of the surgery. In addition, the committee had the benefit of correspondence which had passed between the various specialists and Dr Cox at the time that Mr Anning was being treated. The MMAC had its first meeting in March 1996 and its report stated as follows: The committee has considered all the material carefully but is of the view that the matters of which Mr Anning complains, the claudication and its exacerbation, are in fact directly related only to the progress of the disease that he had and not in any way related to the surgery that he had. There is, therefore, no causal link and certainly no evidence in the committee's view of any suggestion of error either. The proposed advise is that the claim be declined for these reasons and that this become final advise if no new information arises to challenge it. The committee was further of the view that although there was some evidence from Mr Anning of changes in circulation levels about the time of the procedure, following it and following corrective procedures, nevertheless, the committee is of the view that although the changes might be said to be caused by the surgery, it is not a sufficiently rare consequence of it to qualify for cover on the grounds of mishap and the proposed advise would further be that the claim be declined for that reason." The appellant sought a review of that decision. A review hearing took place on the 16th of October 1996 but because the tape recorder malfunctioned there is 4 no record of the evidence given by Mr Anning, save for the references to that evidence by the review officer in his decision. Mr Anning's contention was that before his operation he had a 50% circulation rate in his legs, was able to play bowls and could attend his garden, but that after the operation the circulation rate in his legs reduced and he was unable to do many of the things he formerly could. He said that he was led to believe that if the circulation rate dropped any lower he was likely to lose a limb. It was for that reason that he sought a further opinion from Mr Shirer, a Vascular Surgeon in Wellington. At the conclusion of the evidence the review officer undertook to seek a further opinion from another vascular surgeon and in that regard he referred all the reports to Mr S G K Packer, Consultant Surgeon at Dunedin Hospital. In addition to the review officer's letter of instruction, the appellant himself submitted a letter to Mr Packer so that there could be no doubt about what the appellant was complaining of and alleging. Mr Packer reported to the review officer on the 11" of April 1997 and included in his advice was the statement that it was highly likely that the restricted circulation would have progressed to the point that it did in any case even if no surgery had been undertaken. The review officer noted that there was no medical evidence stating a contrary view. In those circumstances the review officer found that it had not been established that the treatment given by the registered health professionals had caused injury, that is decreased circulation. On that ground the review was declined. The appellant has now appealed to this Court from that decision. RELEVANT STATUTORY PROVISIONS Definition of "medical misadventure": (1) For the purpose of this Act- "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. It is not medical error solely because desired 5 results are not achieved or because subsequent events show that different decisions might have produced better results. "Medical misadventure" means personal injury resulting from medical error or medical mishap: "Medical mishap" means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given, if- (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (b) The adverse consequence of the treatment is severe. ( 2 ) For the purposes of the definition of the term "medical mishap", the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured- (a) Was known to that person; or ( 6 ) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be,- prior to the treatment. ( 4 ) For the purposes of the definition of the term "medical mishap" the adverse consequences of treatment are severe only if they result in death or- (a) Hospitalisation as an inpatient for more than 14 days; or (6) Significant disability lasting for more than 28 days in total; or ( C ) The person qualifying for an independence allowance under section 54 of this Act. 6 MEDICAL EVIDENCE In his first report to Dr Cox, Mr Mercer noted the appellant's history and went on to state: "On examination he is a well looking man. His blood pressure was 160/80, and his pulse rate was 82 and regular. There was no lymphadenopathy. His carotid arteries felt and sounded normal. Abdominal examination was essentially normal. There was some moderate distension present, but no masses were palpable, and his aorta is not dilated. The femoral pulses are weak bilaterally, the right barely palpable. There is a bruit present on the left. I couldn't feel popliteal or pedal pulses in either leg. His feet are reasonably warm and well perfused, although there are chronic ischaemic trophic changes. The Doppler studies show a brachio pedal ratio of 0.5 on the right and 0.55 on the left. I am arranging for him to have an aortogram of the iliofemoral arteries. I don't think there is any doubt that his symptoms are due to peripheral vascular disease. I hope that angioplasty may be helpful in this situation. I will see him again following his arteriogram." In his further report to Dr Cox of 15" December 1993 following the arteriogram Mr Mercer stated: I reviewed this man today following his arteriogram. You will have received a copy of this which shows extensive combination disease, involving the iliac femoral tibial arteries. The first step is to get more blood flow into both femoral arteries and I think the safest way of doing this would be an axillo bifemoro graft. Although an aorto-bifemoral graft is technically more satisfactory, I saw George as he was walking out my stairs, and he certainly gets pretty short of breath after one flight of stairs, and this combined with his previous abdominal surgery, makes me reluctant to try and go into his aorta directly through the abdomen. Following his axillo-bifemoral graft, of course he will still have superficial femoral artery occlusions, and tibial artery occlusions and he will still continue to have intermittent claudication. This may not be disabling, however, and may well let him enjoy a round of golf if he takes it quietly. If he continues to have severe disabling symptoms following the axillo bifemoro graft, then we will have to carry out femoral popliteal grafts as well. I have been through all this carefully with him and he has a good understanding of this. I have placed his name on the waiting list at Christchurch Hospital for this to be carried out. 7 Finally Mr Mercer reported to the MMAC on 5" February 1996, having noted the history of the appellant's first operation he stated: Failure of an axillary bifemoral bypass graft due to thrombosis, which in itself comes from poor blood flow due to widespread vascular disease, is an expected complication of this operation in at least 50% of patients within a two year period. In a time of stringent budgeting, we do have to be selective on whom we keep trying to carry out further re-vascularisation procedures, and both Mr Morton and myself agreed that this man did not justify further major life threatening surgery in terms of the expectation of improvement of symptoms. The long term benefits of his recent surgery have yet to be determined. In my opinion there is no justification for any claim of medical misadventure. Mr W C Shirer gave a detailed report to the MMAC dated 25" January 1996 and after reviewing the events that had occurred prior to the appellant consulting him, he then went on to state: - - - - On examination he had a poor left femoral pulse, no right femoral pulse and no pulses below that in either leg. His blood pressure that day was 160/90; the pressure in the left calf was 100; in the right calf 90; pressure in the left thigh was 100; pressure in the right thigh 100. I use oscillometry figures and these were all virtually nil. We then investigated Mr Anning fairly fully. He had an aortogram showing the extent of the disease in his aorto-iliac vessels and the femoral vessels of the legs. This showed an occlusion of the right external iliac artery and the right common femoral artery, the right superficial femoral artery and severe stenosis of the right common iliac artery. On the left side the origin of the left common iliac artery was dilated and the rest of it severely stenosed. There were to areas of stenosis in the left external iliac artery. The left common femoral artery was open and the left superficial femoral artery was occluded. On examination also his left arm was weak and he was dropping things, and it was numb. His left leg was rather stiff. These neurological symptoms in his left arm waxed and waned and there was a bruit in the right carotid artery. With the Doppler machine, I felt that this was rather tight. He then had a Duplex Scan which showed a 95% stenosis in the right internal carotid artery. With this type of cerebral symptom waxing and waning that obviously hadn't been diagnosed previously, there was some urgency for operating on that stenosis to relieve it. So on 29-3-95 he had a right carotid endarterectomy. That operation showed that there was virtually no flow through the internal carotid artery and it is of interest that when flow was re-established to that 8 side of the brain, his left arm improved quite dramatically, which meant that the neurological problem to the left arm was intermittent. We also noted during that operation that the cardiac side of this patient was not good which would confirm the choice of operation in Christchurch. He was investigated extensively from the cardiac point of view by Dr O'Malley to see how we would handle the problem from there on in. It was decided that he should have an angioplasty for the left iliac artery system and the bottom half of the left common iliac artery was dilated and a stent put in along the length of the left common iliac artery up to the aorta to keep it open. The two areas of stenosis in the left external iliac artery were also opened with angioplasty. This gave a good pulse flow into the left common femoral artery. This was done 22-5-95. On 30-5-95 we did an operation where we took a graft from the left common femoral artery to the right profunda femoris artery and we used a vein from each leg and reversed this and on the left we took it from the common femoral artery to the popliteal above the knee, and on the right from the graft going into the right groin to the popliteal above the knee on the right. This means that all the blood flow to both legs has to go through the left iliac system that we dilated up, and there is a certain risk in the long term that this could fell and needs to be monitored. The dilatations can be repeated and it can be operated on again if necessary. He has had a good result from this and he is now fully mobile and much fitter than he was previously. COMMENT In the copy of Section 5 of the Act, "medical error" is not solely because the desired result was not achieved. In this particular case that the surgeons in Christchurch, because of his cardiac state and general vascular problems, chose to do an axillo bifemoral artery. This is what we would do in Wellington as a last resort. In fact we very seldom do it, having a much higher incidence of going for the aorta area to obtain a blood supply for the legs. The main reason is because in the past we have not made axillo femorals work all that well. You can see from the above that obtaining the result that we did was high tech, complicated, took a lot of investigation and was our preferred option. As you can see from me explaining all the technology above, this requires a lot of backup systems which we have in place in our hospitals, both in public and in private in Wellington although easier to obtain in private. I have great sympathy with Mr Anning in his approach to this problem but there is not a uniform opinion amongst vascular surgeons anywhere as to what should always be done in these situations. A lot of it depends upon choices, backup system that are available and experience of the staff available. Even now one can't guarantee that Mr Anning's arterial reconstruction can last out the rest of his days and will need to be supervised and, in fact, possibly revised at odd times. This is the nature of the management of arterial disease in the modern day. Finally there is the report of Mr Packer to the review officer dated 11th April 1997 and his report in full states: As requested I have reviewed the information provided concerning this man who underwent a number of vascular surgical operations in February 1994. The operation chosen at that time was an axillo- bifemoral graft because of bilateral calf claudication. Initial clinical examination was followed by Doppler pressure measurements of the legs and subsequent arteriography. The clinical assessment was that a major abdominal aorto-iliac reconstruction was not advisable, in part because of his long history of smoking, his shortness of breath and his previous abdominal operations. The option of axillo- bifemoral grafting was offered and this was subsequently carried out. Mr Hanning claims that he had not been seen by the anaesthetist and that Mr Morton, the surgeon, did not visit him before the operation. He was in fact seen by an anaesthetist at a pre-admission clinic, diagnosed as having complicating factors of chronic obstructive airways disease, and graded as ASA 3, ie having severe systemic disease. When he was admitted to the ward he was in fact seen by Professor Morton and Mr Jan Swinnen who undertook the operation with the assistance of Mr Morton. The consent process that Mr Mercer had earlier undertaken was reviewed at that time. With respect to later suggestions that the carotid disease should have been evident and dealt with, the possibility of cerebro-vascular disease was considered and there was no clinical evidence of this when he was first assessed in 1993 nor at the time of his admission in February 1994. Post operatively he had a significant chest infection, not surprising considering his long-term smoking history, and chronic obstructive airways disease and letters from Professor Morton and subsequently Dr Mercer indicate that the graft functioned for some weeks but he presented with an occlusion which was resistant to thrombolysis. At that stage the decision not to undertake further reconstruction surgery was made unless further deterioration occurred in which case something would be considered as a salvage procedure. He subsequently self referred to Mr Shirer in Wellington, underwent further investigations, then complex major vascular surgery including 10 a carotid endarterectomy, angioplasty and stenting of the iliac artery, a cross-over graft and bilateral femoro-popliteal grafts. The end result of these to this point in time seems to have been a success. In considering whether the outcome of the first surgery could be considered either medical mishap or medical error, as those terms are defined in the ARC Act 1992, I have to agree with the previous review that neither medical error nor medical mishap have occurred. There was no failure of registered health professionals to observe the standard of care and skill reasonably to be expected in the circumstances. Although the desired long-term results were not achieved and subsequent events have shown that a different decision in fact was able to produce better results medical error cannot be ascribed. With respect to medical mishap this cannot be sustained either in that the known long-term patency rates of axillo-bifemoral grafting, particularly in the presence of impaired distal runoff, are poor, as Mr Shirer indicated. The adverse consequence of this failure of treatment was such that the circulation in the right leg subsequently became worse than it had been before surgery but it is highly likely that it would have progressed at this point in any case even if no surgery had been undertaken. In response to contentions made by the appellant in written submissions to the Court that he underwent the operation with Professor Morton with a heavy chest infection and a 95% blocked right carotid artery with the result that he suffered a stroke which affected the left side of his body particularly his arm, Mr Mercer responded as follows: A great deal of consultation occurred between Mr Morton and myself in deciding what we should advise Mr Anning in terms of future treatment for his circulation problems. We were very mindful of that fact that the first operation to improve his circulation (axillo- bifemoral Dacron bypass graft) was associated with Mr Anning's congestive heart failure for which he really struggled to get through in combination with a chest infection. We were therefore very apprehensive about recommending any further major surgery to Mr Anning and advised him to live with his symptoms. Mr Shirer's operation was successful but it carried with it a considerable risk in the process, and I don't think Mr Anning has ever appreciated how risky that operation was to him. However, he did get away with it and Mr Anning is fortunate to have reasonably good circulation to his legs now. There is no evidence that he ever had a stroke during his original surgery by Mr Morton. 11 SUBMISSIONS Mr Anning submitted that no pre-operative tests were carried out before Professor Morton and Mr Swinnen carried out their operation and he contended that if they had done so they would have found the blocked right carotid artery. He contended that he had suffered a stroke and that their omission directly led to the stroke. Mr Anning also contended that the circulation level in his legs had dropped after the operation to a level lower than had been the case before the operation and that the operation was wholly unsuccessful. Mr Anning also commented on the fact that the operation had been carried out by a junior trainee surgeon and that he was not informed of that fact. He submitted that he had suffered a significant disability which lasted more than 28 days after the first operation. Ms Scott, counsel for the respondent, submitted that the medical evidence is that the pressure levels on the appellant's legs after the surgery were initially better than had been before surgery, and that it was not until seven months after surgery that the pressure in the right leg fell to a level below its pre- operative level. She submitted that when those measurements are looked at in that light it cannot be contended that the lower level has been caused by the axillo-bifemoral graft. Counsel further submits that the opinion of Mr Packer was that the lower level would have been reached even without the operation. Counsel submits that there is no evidence of anything that can be identified as personal injury resulting from the treatment and that the deterioration that occurred following the operation was substantially as a result of disease and excluded from cover by section 10 of the Act. Counsel further submitted that so far as medical error is concerned, Mr Mercer's first report indicated that he considered an aorto-bifemoral graft but it was his opinion that the appellant's physical condition did not make such surgery appropriate. Counsel submitted that Mr Mercer's assessment was 12 supported by Mr Shirer who noted that he would agree that an aorto-bifemoral graft would not be appropriate if the patient was not fit. Counsel submitted that the whole range of the medical opinion obtained indicates that there was no medical error in this case. So far as medical mishap is concerned, counsel submitted that there is clear evidence that the failure of an axillary-bifemoral bypass graft due to thrombosis is an expected complication which can arise in at least 50% of patients within a two-year period. Counsel submitted that that evidence coupled with the opinion of Mr Packer establishes that there was no medical mishap. DECISION In this case the appellant has sought cover under the Act for personal injury by medical misadventure. In fact the original claim for cover and associated letter did not mention the personal injury aspect, it simply contended that the initial operation had been unsuccessful and had required further operations at considerable cost to the appellant. The file discloses that it was not until the review officer's decision that the appellant himself was aware that he was required to address the issue of personal injury and that it was not simply a question of establishing whether a registered health professional had made an error or that there may have been a mishap. It was at this point that the appellant identified the narrowing of the blood pressure in his legs and effect of the blocking of the carotid artery which required an operation under Mr Shirer, as injury. It is now these two matters which the appellant contends are the personal injuries that he has suffered. Dealing with the first claimed injury, namely the loss of blood flow in the legs, the medical evidence from Mr Mercer shows that he measured the appellant's brachio-pedal ratios prior to the operation as showing 0.5 on the right and 0.55 on the left. The brachio-pedal ratio is a measure of the blood flow in the legs as a proportion of the blood flow in the upper body. Subsequent to the operation Mr Mercer took further readings on four occasions between April 13 1994 and September 1994. Initially the ratio for the right leg improved from 0.5 to 0.67, then went to 0.41, then back to 0.5 and finally 0.32. The left leg remained constantly at or about its pre-operative level. It is to be noted that it was the disease in the appellant's arteries which was causing the restriction of blood flow and it was upon the failure of that operation to ultimately remedy that defect that the original pre operative condition reasserted itself with the expected deterioration which had been foreshadowed. For the appellant to establish personal injury within the meaning of that term for medical misadventure it has to be established that the misadventure was causative of the personal injury. It was the opinion of the MMAC that there was no causative link. The medical evidence is that the deterioration in the blood flow to the appellant's legs was as a consequence of his condition and not a consequence of the surgical procedure. Mr Packer further notes that the appellant's condition was highly likely to have reached the same point had this surgery not been performed. There has been no medical evidence produced which suggests anything contrary to that view, therefore I find as a matter of law that the appellant did not suffer personal injury as a result of treatment given to him by Mr Mercer or by Professor Morton and Mr Swinnen at the time of that axillo-bifemoral graft operation in February 1994. Dealing now with the issue of the blocked carotid artery, which the appellant contends led to a stroke, it is the appellant's contention that there was a failure to diagnose the fact of that blocked artery. If it is established that the appellant did suffer a stroke then that is indeed personal injury and in the context of the claim for that injury the question of medical error needs to be considered. Section 5(7) of the Act states: 14 Medical mishap does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent. The evidence on this issue is firstly that of Mr Mercer in his report to Dr Cox on 30" November 1993. In his advice he stated that the appellant's carotid arteries felt and sounded normal. The significance of this report is that it was made at the time of the examination when no issue of carotid arteries or the blockages of same had arisen. Thus I find its impact to be weighty. The further evidence from Mr Mercer is that he and Professor Morton were in joint consultation regarding the surgery and there is no evidence to suggest that the blocked carotid artery was present at the time of that surgery. The evidence of Mr Packer confirms that when he states "with respect to later suggestions that the carotid disease should have been evident and dealt with, the possibility of cerebro-vascular disease was considered. There was no clinical evidence of this when he was first assessed in 1993 nor at the time of his admission in February 1994." There is no medical evidence on which this Court could form a view that either Mr Mercer or Professor Morton were in some way negligent in the carrying out of their professional duties. There is no evidence that the appellant did indeed suffer from a blocked carotid artery at the time of his examination prior to his operation and there has been no evidence which establishes that the fact that a blocked carotid artery was discovered by Mr Shirer in March 1995, that is, a little over 12 months from the date of his first operation, would have been present and discernible in February 1994. From the reports from Mr Shirer to Dr Cox it does seem that the appellant did suffer a form of stroke at some stage because of his blocked artery. However, in his final report to Dr Cox, Mr Shirer stated that the appellant was going to be enjoying life free of claudication and free of the threat to a stroke from his right carotid. 15 The medical opinion is that there was no negligence on the part of either Mr Mercer or Professor Morton and the evidence that would be required to be presented to this Court would need to establish that either or both of those health professionals had fallen below the standard of care and skill reasonably to be expected in the circumstances. There is no evidence which the Court could consider as being factors which might point to a falling below the standard of care and skill expected. Therefore, despite the fact that the appellant did suffer some form of stroke, the direct cause of that was the blockage of the carotid artery and I find on the facts that there was no negligence on the part of any health professional in - -- - - failing to diagnose that blockage before that stroke, whenever it may have occurred. So far as medical mishap is concerned, I agree with the submission of counsel for the respondent that the evidence clearly establishes that the likelihood of failure of an axillary-bifemoral bypass graft is high, therefore the fact that the operation, was not successful cannot bring it into the realm of medical mishap as it cannot be considered that any adverse consequence from that surgery was rare as is required under the statutory definition of medical mishap. Thus, even if it were to be held that the appellant had suffered a personal injury in relation to that failed operation, yet no entitlement to cover would be forthcoming as it could not be said to be a medical mishap as that term is defined in the Act. For completeness I find that the evidence of Mr Shirer and Mr Packer establishes that there was no medical error on the part of Mr Mercer, Professor Morton or Mr Swinnen in the carrying out of the particular surgery they did or the decision to carry out the axillo-bifemoral graft surgery as opposed to aorto- bifemoral graft. The evidence establishes that Mr Mercer formed the view that the appellant's fitness or lack of same was a prime reason for choosing the more conservative approach. Again that fact is noted in Mr Mercer's letter to the appellant's GP of the 15" December 1993 where he stated: 16 Although an aorta-bifemoral graft is technically more satisfactory, I saw George as he was walking out my stairs, and he certainly gets pretty short of breath after one flight of stairs, and this combined with his previous abdominal surgery, makes me reluctant to try to get into his aorta directly through the abdomen. Mr Shirer confirmed that in those circumstances there could be no medical error. Accordingly then, for the foregoing reasons the appellant's claim for cover for personal injury by medical misadventure fails. The decision of the review officer is confirmed and this appeal is dismissed. DATED at WELLINGTON this 7th day of July 1999 M J Beattie District Court Judge 425.98 Anning doc