Williams v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 165/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GLYN WILLIAMS of New Plymouth Appellant (Appeal No. DCA 98/98 AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS This appeal was set down for hearing at New Plymouth on 14 July 1998 where Mr A Johnson appeared for the respondent but there was no appearance from the appellant. However, he had provided written submissions from which I have concluded that he did not wish to make any additional submissions. In addition, he has had a copy of the respondent's submissions so that I am issuing this decision on the papers now before me. On 15 May 1997 the appellant lodged a claim for cover with the respondent in which he stated that he had suffered personal injury as a result of a medical misadventure. The claim was then referred to the respondent's Medical Misadventure Unit for consideration. A report was obtained from the appellant who stated that he had suffered trauma and great pain both physically and mentally because of a twisted right testicle. He said that he consulted his general practitioner, Dr Churchman on 22 May 1995 because of the pain and swelling which had been present since 20 May 1995. He said that he suggested to Dr Churchman that he should see a specialist because he was concerned that he might be suffering testicular cancer. He stated that Dr Churchman considered it may have had an infection or possibly a twist of the 2 testicle so she referred him to the outpatients department at the hospital. She made the necessary referral and at the same time prescribed antibiotics. As a result the appellant underwent surgery on 21 July 1995 for removal of one testicle. He was advised that he was not suffering testicular cancer but a twisted right testis. He said that the experience caused him unbearable pain, sadness and depression and believes he should have been offered counselling in order to deal with the stress. He also considers that he has been socially disadvantaged because friends to whom he has mentioned his problem have commented on his condition in a degrading manner. In a report of 17 June 1997, Dr Churchman said: "Glyn was seen by me on Monday 22nd May 1995 complaining of 3 days of pain in the right and left sides of the groin and a two day history of an inflamed, red, swollen right testicle. He was very anxious and mentioned that he thought he may have cancer of the testis. I tried to reassure him that I didn't think this was the most likely diagnosis. I considered that he had an infection known as Epididymitis but that it could also possibly be a torsion or 'twist' of the testicle. I told him that this required urgent surgery and that I would like to refer him up to the Base Hospital A&E Department to be assessed for possible torsion by the Surgical team on call. Glyn agreed to this and did not seem at all unhappy to be referred to the hospital. Nor did he request referral to anyone else. I therefore rang while he was in the room and arranged for him to go straight up to the Hospital for assessment. In addition I gave him a prescription for antibiotics (Vibratabs) if he was discharged from A&E. I enclose copies of my referral letter and the written reply of the Registrar, Dr Edmonson, although I did not receive the repy (sic) for several days. In fact it was after Glyn's next visit on 1/6/95. Glyn also received a copy of the letter which stated that clinically Dr Edmonson thought he had an Epididymitis and that even if it was torsion urgent surgery was unnecessary in view of the period of time which had elapsed since the symptoms began. He felt the antibiotics I had prescribed were 'appropriate'. On 1/6/95 Glyn returned for a follow up assessment once he had completed the antibiotics. He brought in a copy of his letter from Dr Edmonson as I had not yet received one and which I photocopied for the notes. He did not seem unhappy with the treatment he had received from me or the Hospital and did not request another opinion. Examining him I noted that the testicle was still swollen but not as tender so I thought the 'infection' required a longer course of antibiotics and prescribed Augmentin and Vibratabs, asking Glyn to return for review when they were completed. He came back on 11/7/95 for the third appointment. On this occasion I noted that there was NO tenderness at all and the swelling had also diminished, but that the testis was very much firmer than previously. I was concerned on this occasion that he may have a 3 malignancy and it was my suggestion to refer him to Mr Gilkison, a General Surgeon, in private as this would be quicker than being referred through the Hospital Outpatient Department. He was seen by Mr Gilkison on 17th July and had an ultrasound examination on 18th July. Mr Gilkison thought he had carcinoma and arranged admission on 20th July for surgery at Taranaki Base Hospital. I visited Glyn on 22nd July at the Hospital as I knew he had little in the way of social supports and his parents were away on holiday in the U.K. at the time. Glyn informed me that he had had his surgery and been told there was no malignancy and that there was evidence of an old torsion. He said the doctors thought this had happened the previous year. I was very relieved that he didn't have cancer, as was he, but surprised that it was thought the torsion had occurred the previous year. I asked him if had had symptoms that year and he said yes and that he had not seen any medical person at that stage Because Glyn seemed happy with his treatment and has never expressed dissatisfaction to me, I have never had the opportunity to discuss the events preceding his surgery with him." The operating surgeon, Mr Gilkison, provided a report of 11 June 1997 in which he states: 'I write in response to your letter of 5.6.97. I first met this man on 17.7.95 when he was referred by his General Practitioner. I have subsequently reviewed my notes in the rooms and the notes at Taranaki Base Hospital. He told me that he had woken one morning about six weeks ago with right sided abdominal pain that moved to the scrotum over 24 hours and lasted for about two weeks. It was associated with an increase in size of the testicle by a factor of six and treated by his GP with antibiotics. He had been comfortable for the last 4 weeks but his testicle was still three times normal size. He said that he had a similar episode a year earlier with complete resolution. On examination he was a fit nervous man with a regular pulse and no lymphadenopathy. The abdomen and pelvis were normal while the left testicle was on the small side but normal. The right was increased three times to its normal size and hard without any fluid clinically. My first thought was a testicular malignancy. Blood was taken for tumour markers and an MSU was also taken. An ultrasound examination was organized for the following day and reported as showing a normal left testicle but an abnormal one on the right 4 with 'what is seen must for practical purposes be regarded as a primary tumour of the right testis' MSU and tumour markers were normal. He was admitted to Taranaki Base Hospital and exploration of the right testicle via the groin was carried out on 21.7.95. Clinically it looked like an old torsion with viable cord but dead testicle and this was confirmed on Frozen Section. The testicle was replaced in the scrotum and then the left testis was delivered through a scrotal incision and fixed. The testis itself seemed a little small and soft on this side and there was a high insertion of the tunica vaginalis. He was seen in my Outpatient Clinic on 12.9.97 when he was described as painfree. As expected the testicle had shrunk. He was discharged at that time. Base Hospital notes show that he was seen by the Duty Surgical Registrar in A & E on 22.5.97 after being referred by his GP with pain in the right and left groin over the weekend. The Registrar noted a 48 hour history of right groin and testicular pain with swelling of the right testicle and moderate tenderness. The cord was palpable and the 'draw' test negative. Clinically this was felt to be inflammatory and the comment was made that even if this was torsion a 48 hour history made exploration unnecessary. This man has lost a testicle because of testicular torsion. I think with hindsight that he probably had an episode of torsion in 1994 as well and that there was spontaneous resolution. Standard teaching is that a testicular torsion is an emergency and that if the testicle is going to be saved surgery should be carried out within four hours at the most from the onset of symptoms. Unfortunately many patients present much later than this. A loss of testicle is of course permanent. In cases where there is a significant cosmetic disability consideration can be given to insertion of a prosthesis. The condition usually can affect both testicles but this man should be protected against any problems on the left side now that the testicle has been fastened to the inside of the scrotum so that it can't spin round." As a result of those reports the Medical Misadventure Advisory Committee concluded that "the issue is that given the length of time that Mr Williams presented following initial onset of the pain and swelling with any intervention at that time would not have led to preservation of normal testicular function". As a result of that report the respondent advised the appellant that he did not qualify for cover under the Act because he had not suffered personal injury by accident by medical misadventure. The appellant applied for a review of that decision in which he said that his claim was not based on the loss of normal testicular function but "for unnecessary prolonging of pain due to the inaction on Dr Churchman's behalf. Unlike the findings, I find the treatment given to me in the circumstances was not appropriate. Dr Churchman was negligent in her actions concerning the medical situation". The appellant gave evidence at the review hearing in which he repeated the statements made in support of his claim. The appellant told the review officer that he had been in severe pain between 20 May 1995 and the time he saw Dr Churchman on 22 May 1995 when she told him that he did not then need to see a specialist. He 5 said that it was not until his third visit to Dr Churchman on 11 July 1995 that she suggested that he see a specialist. The review officer concluded that the suggestion of a misdiagnosis of a twisted testis which exacerbated the condition was not considered by the Medical Misadventure Advisory Committee to be due to lack of care and skill by Dr Churchman. The review officer found that Dr Churchman had acted with extra care by referring the appellant to the hospital to check his problem immediately after the first consultation. That resulted in his attending the hospital where antibiotics were prescribed which was considered to be appropriate treatment. The review officer concluded that the medical opinion was that whatever course had been taken any intervention at the time the appellant first presented would not have preserved his normal testicular function. The application for review was declined. It is against that decision which the appellant now appeals. In his notice of appeal the appellant has stated that his principal concern is the length of time it took for Dr Churchman to refer him to a specialist. He claims that he "suffered due to the ignorance and inaction of the GP". In a further submission to the Court he states "that I have never held Dr Gillian Churchman guilty in any respect whatsoever for the loss of my right testes, but do hold her accountable for neglecting my initial request to see a specialist." He submits that he thereby suffered considerable pain and trauma. Mr Johnson submitted: 1. That the Act provides for cover for personal injury for cover for personal injury which is caused by medical misadventure which must be either a result of medical error or medical mishap. 2. That while the appellant submits that he is not claiming that Dr Churchman's actions resulted in the loss of his testis medical misadventure is specifically defined as personal injury resulting from medical error or medical mishap. That if the appellant is to have cover under the Act there must be a personal injury which has resulted from a medical error. He submitted that personal injury as defined by the Act is a physical injury which includes mental injury which is an outcome of that physical injury. 3. That as the appellant does not attribute the loss of his right testis to Dr Churchman's actions and any suggestion that it is, is not supported by the medical evidence, the loss of the right testis was due to the appellant's delay in seeking treatment. 4. That there is no physical injury identified by the appellant which could have been caused by medical error. In order for the appellant to obtain cover under the Act it is necessary for him to identify a physical injury which has resulted from the failure of the medical practitioners concerned to provide responsible and adequate care in the circumstances. 6 The appellant delayed presentation to his doctor until the pain became considerable at which time Dr Churchman considered that he was suffering an infection or that the problem may possibly have been a torsion of the testicle. For that reason she referred him to the hospital Accident and Emergency Department where he was assessed for possible torsion. While antibiotics appeared to assist his problem it became necessary to refer him for surgical treatment which was undertaken. It is clear from the reports of Mr Gilkison that with the benefit of hindsight it was evident that when the appellant first presented he could not have received any treatment which would have preserved his testis. The fact that he suffered pain is not the result of any medical or surgical treatment he received, but was the ongoing problem with his testis which in any case could not have been preserved. I therefore agree with Mr Johnson that as the appellant's only claim is the pain and misery he sustained that did not constitute a personal injury within the definition of the Act. I therefore agree with the review officer that while the appellant has suffered pain this is not as a result of personal injury arising out of a medical mishap or medical error and accordingly his appeal must be dismissed. DATED at WELLINGTON this 2 7day of July 1998 A W Middleton District Court Judge dca9898.doc(rd)