Rae v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 85 196 HELD AT HAMILTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND 19/ 95 0023 IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN GLADYS ESTELLE RAE Appellant (Appeal No. DCA 97/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21st day of August 1996 APPEARANCES Anna de Jonge for appellant T P Cleary for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a medical question whether Parkinsons disease suffered by the appellant was caused by her treatment with the neuroleptic drug Stelazine. The appellant's medical history indicated that she was taking Stelazine 5mg daily until she gradually withdrew between October and December 1989. Tremor of her left hand began to develop in late 1988. She was seen by Dr D L Mcauley, neurologist, who found clear evidence of significant Parkinsonism asymmetrically affecting her left side, particularly the arm. He considered the question whether that was entirely drug induced caused by the chronic administration of Stelazine, or whether she had underlying idiopathic Parkinson's disease which had merely been made more obvious by the chronic administration of the Stelazine. He said that while it was very likely that the Parkinsonism was drug induced, the asymmetry and the tremor argued a little in favour of her having underlying idiopathic Parkinson's disease and that there was a possible family history. She showed some improvement in aspects of her Parkinsonian - 2- syndrome by March 1990 but Dr Mcauley was not able to settle the question whether that disorder was all drug induced or not. There was some improvement during the following 2 years but in June 1994 Dr Mcauley noted more marked Parkinsonian appearance with generalised hypokinesia. Since then the Parkinsonism has not abated. The case was referred to the Medical Misadventure Committee. It would be helpful to set out the definitions in s 5 of the Act: 5. Definition of "medical misadventure" - (1) For the purposes of this Act, - "Medical Misadventure" means personal injury resulting from medical error or medical mishap. "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 results are not achieved or because subsequent events show that difference decisions might have produced better results. "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. .. ... (6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian, or welfare guardian, as the case may be, is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent. The Corporation obtained advice from its Medical Misadventure Advisory Committee which discounted medical error, but that is a question that has to be revisited for reasons that will appear. The Committee also discounted medical mishap because the likelihood of the adverse consequence of Parkinsonism from the treatment of Stelazine administered as it was in this case is not a rare occurrence. To be rare, according to s 5(2) of the Act, the probability of the adverse occurrence must be one percent of cases or less. The Committee did not make a finding about the question whether the appellant's Parkinsonism was caused by Stelazine. Such a finding was not necessary to dispose of the medical misadventure claim. In considering the claim, however, the Committee remarked as follows: "The Committee accepts that Parkinsonism is a significantly disabling condition, although we do note that in Mrs Rae's case, where one would expect the Parkinsonism symptoms to regress when the drug Stelazine was withdrawn (sic). We note in Mrs Rae's case that this did not happen. It is not possible to ascertain whether she has in fact drug induced Parkinsonism or idiopathic Parkinsonism. - 3 - However, the Committee would accept that any such Parkinsonism type syndromes constitute a significant disability in terms of the Act. However, as this does not satisfy the rarity criteria, our recommendation of this claim should be declined, to become final after 15 working days." The Committee met again on 5th July 1995 and stated: "This is the second consideration of this claim, the first hearing being on 22 February 1995. We have before us two new pieces of evidence, the first from Dr Ian Wakefield, dated 31 May 1995, and the second from Anna de Jonge, on behalf of Mrs Ray, dated 24 March 1995. The Committee has reviewed the evidence presented carefully, and has come to the view that Mrs Ray is not suffering from drug induced Parkinsonism. The Committee believes that her Parkinsonism is idiopathic because her condition did not improve within a year from the time the Stelazine (the drug which is believed to have caused the condition) was withdrawn. For that reason the Committee finds there was no medical mishap. Proposed advice remains that cover be declined." There were therefore two reasons for declining a claim based on medical mishap. The first is that the condition does not meet the rarity criteria, and the second is that it was idiopathic and not caused by administration of Stelazine. I am satisfied of the first reason. There is really no dispute about that on the material before the Court, although Mrs de Jonge advances an argument that where the consequences are especially severe they should be viewed as different consequences and the rarity test should be applied to them. In other words although Parkinsonism might be a side effect occurring in more than 1% of cases, if severe Parkinsonism occurs in less than 1% of cases it satisfies the rarity test. On the material before me there is no convincing evidence that the symptoms are especially severe, so as to require consideration as a separate category of consequences and the legal argument raised by that submission will have to be left unresolved. This appeal will have to be dismissed, however, a further question has now been raised and is the subject of a further claim. At the review hearing, evidence was given to the effect that the applicant had not been advised of the possibility that the prescribed drugs could possibly cause Parkinson's disease. Before making his decision, the review officer called for further information and obtained an opinion of 16 November 1995 from Dr Greig Mccormick, Psychiatrist. After briefly reviewing the history, Dr Mccormick said that the appellant stated she was never informed that her medication could cause significant long term effects. That itself raised a question of medical error if she was treated after negligent failure to obtain her informed consent. That claim would depend also on proof that the treatment induced Parkinsonism. It is open to this Court to make a finding on causation, and if the finding was adverse to the appellant she would be prevented from pursuing her claim of medical error. I prefer not to make such a finding. Although a finding to that effect was made by the review officer, the medical information on the file is not conclusive. Furthermore, even if the appellant is thought to have an idiopathic form of Parkinsonism, I am not sure that the question has been fully explored whether her symptoms could have been accelerated by, and to an extent caused by, treatment with Stelazine. That sort of question may involve issues of law and fact and it should not be lost sight of when dealing with the appellant's remaining claim. - 4 - The appeal is dismissed and the appellant is free to pursue a further claim for medical error DATED at WELLINGTON this 16thday of September 1996 D A Ongley District Court Judge