H v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 109/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN GRAHAM HUGHES of Hamilton Appellant (Appeal No. AI 21/04) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at TE AWAMUTU on 12 March 2004 APPEARANCES/COUNSEL A. de Jonge for appellant K. Wickham for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this appeal is whether the respondent’s decision of 16 September 2003 declining the appellant’s claim for cover, was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/109- 2004.doc AE [2] The appellant had applied to the respondent for cover for injuries allegedly sustained from treatment at Sunnyside Hospital in 1992 and 1993. Cover was declined on the grounds that it did not meet the criteria for medical misadventure, as there was no evidence that a physical injury had occurred as a result of the treatment received by the appellant. Narrative of Facts [3] The respondent understands the appellant was admitted to Sunnyside Hospital in July 1992 acutely depressed and suicidal. The diagnosis was of a major depressive episode with psychotic features, and alcohol abuse in remission. He was prescribed Fluoxetine and Thioridazine and was discharged in September that year. [4] A second admission to Sunnyside Hospital took place in July 1993, where again the diagnosis was of a major depression. [5] While at Sunnyside Hospital, the appellant received electroconvulsive shock treatment (ECT); one unilateral and three bilateral ECTs were administered. The appellant was discharged in 1993 with a report that his state was much improved. [6] On 17 March 2003, the appellant lodged a claim with the Corporation for medical misadventure. The basis of that claim is that following his admission to Sunnyside Hospital on 17 July 1992, he was given ECT that caused injury to his right eye and a loss of vision, as well as depression. [7] The treatment details report sent to the respondent described the appellant’s injuries as “nerve damage to right eye, loss of eye sight in right eye, ringing in ears, insomniac, anxiety, depression, neck problems, memory loss”. The report also noted that while at Sunnyside he was also prescribed tranquillisers on a long term basis. The document also detailed the appellant’s alleged ongoing effects of his injury. [8] Clinical reports and clinical records were requested and received from the health professionals who treated the appellant at Sunnyside Hospital, and also from those who provided subsequent care to the appellant. Those reports and records are as follows: [i] Report provided by District Health Board 23 June 2003. This report provided a detailed summary based on medical reports 109-2004 2 of treatment received by the appellant during the period 1992 to 1993. The relevant points from this document are as follows: a. When the appellant was admitted to Sunnyside Hospital he presented with diminished concentration, diminished energy, diminished motivation, sleeping two or three hours per night, waking at 4.00 a.m., diminished short term memory and auditory hallucinations of his children’s voices. For one or two months he had suicidal ideation. b. Diagnosis was of a major depressive episode with psychotic features and alcohol abuse in remission. c. He was treated with Fluoxetine and Thioridazine as well as imavane, on an as needs basis. d. By the time of his discharge the appellant was a good deal more optimistic and was prescribed Fluoxetine and Melleril as required, at night. e. He was discharged in September 1992 and was a voluntary patient throughout his admission. f. He was followed up by the North Sector Community Mental Health Service. The appellant was reviewed by Dr Walshe in November, and was still felt to be depressed, as was the case when he was reviewed in March 1993. g. The appellant was not seen by any member of the team on the date he mentions in his claim, 10 March 1993. h. A referral was made to Queen Mary Centre, for group treatment. Dr Cameron at Queen Mary Centre referred the appellant back, indicating that he was still depressed and his medication was not helping. The appellant was 109-2004 3 admitted as a voluntary patient into the Ferguson Clinic at Sunnyside Hospital on 30 July 1993. On admission the appellant gave a history of poor energy, despondency of mood, no hope for the future, suicidal thoughts, poor sleep patterns, a reasonable appetite, possible weight loss and poor memory. He was recorded as saying “I forgot to do things around the house and lock the door, forgot people’s names”. At the time of his admission he was on Thioridzine, Nortiptyline and Prozac. Dr Walshe indicated that the appellant was in a state of anergic despair and that he had recently been considering suicide. At that time Dr Walshe suggested the possibility of ECT. i. A mini mental status examination was administered on the appellant’s admission with the appellant scoring 77 out of 100. He was diagnosed as suffering from major depression and was offered ECT as a treatment, which he accepted. j. The appellant signed an ECT consent form on 2 August 1993 indicating that the nature of the ECT had been explained to him by Dr Brian Deavoll and Dr Katherine Bernall in the team. Included with the consent form was information for patients and relatives about ECT, which is given to the patients as standard procedure. k. The appellant underwent one unilateral and three bilateral ECT treatments. Throughout his admission he was treated with Fluoxetine, Notripeyline, and Melleri on seven occasions and Temazepam on three occasions. l. On 2 August 1993 the nursing notes indicated that he was pleased with ECT treatment. Post-ECT treatment nursing notes indicate that he was comfortable about procedures, and indicated that he felt he was improving. Similarly, after a second treatment, notes indicates low mood pre-treatment “improving after treatment, feeling 109-2004 4 more relaxed at afternoon and evening”. The following day, 7 August 1993, the nursing notes indicate the patient stated his mood had improved since ECT. 10 August 1993 the nursing notes indicate that he had made a good recovery from ECT and felt that his mood was improving and he objectively looked reactive. Dr Deavoll, consultant psychiatrist, interviewed the appellant on 10 August 1993 and the appellant said his mood had improved following ECT treatment, and that he had no complaints about it except for a headache and feeling sleepy that morning. He reported his memory was always poor and that he needed to keep notes of appointments, and he did not feel that ECT had made it worse. m. After receiving the fourth treatment the appellant went on weekend leave and did not return to the ward for further ECT treatments. n. At no point during his treatment did the appellant indicate worsening memory difficulties, eye sight difficulties, or any other complaints. o. In terms of informed consent, the report stated that the protocol at the time was for the patient to be given written as well as verbal information regarding the expected effects and side effects of ECT, which included memory disturbance, risks of anaesthesia, and confusion post ECT. The appellant signed a written consent form following the discussion with the house surgeon and psychiatrist. The appellant had a very good improvement in his major depressive illness following the treatments and was not discharged on any benzodiazapines from either of his two admissions. [ii] Report of notes from Dr Davison, ophthalmologist, 29 May 2003. The note records the appellant was referred to Dr Davison as a glaucoma suspect, noting a history of blurred 109-2004 5 right eye vision with some discomfort. Tests were performed and the main finding was an atrophic macular cyst on the right eye. Dr Davison concluded by saying he could not comment on whether ECT may have caused the right macular degeneration. Another letter written by Dr Davison on 27 June 1996 stated he needed more past history to explain the appellant’s right eye signs, and wondered, if at some stage the appellant had sustained an injury. [iii] A report from Dr Brewer, general practitioner, 7 May 2003. In a letter dated 29 October 2002 Dr Brewer mentioned that the appellant’s mood appeared to have improved, and that he was fully abstinent. In terms of the appellant’s right eye, he refers to Dr Davison’s report. Dr Brewer went on to say that the appellant’s memory is poor. [9] The respondent obtained an independent report from Dr Marks, consultant psychiatrist, and in his report dated 24 August 2003, Dr Marks concluded that there was no evidence that physical injury had occurred as a result of the medical treatment. The documentation from the time of the treatment and immediately afterwards did not contain any reference to damage to the appellant’s right eye or complaints of his vision changing at that time. The course of treatments was short. Electroconvulsive therapy can cause memory impairment that lasts for months, but it is extremely unlikely to cause permanent impairment of memory as administered during the last fifteen years. [10] Similarly the medications are ordinary and the choice of agent and quantities used. There was no evidence of the medications causing physical injury and particularly they would not have caused the sort of complaints that the appellant now reported. [11] The conclusion was there was no evidence that physical injury had occurred as a result of physical treatment. On the basis of this report, the respondent wrote to the appellant on 16 September 2003 advising him that it had decided to decline his claim for cover as it did not meet the criteria for medical misadventure. [12] The appellant lodged an application for review on 23 September 2003. 109-2004 6 The Review Decision [13] The review hearing was concluded by correspondence. This procedure was agreed to by the parties. The reviewer held that the core of any claim for cover must be that there was a physical injury sustained as a result of some act of medical misadventure. The onus of proof lay with the appellant. In considering a case of medical misadventure the reviewer was almost wholly reliant on expert medical opinion. [14] In this case there was simply no evidence that the appellant had sustained any personal injury as a result of treatment. He had entered Sunnyside for treatment for acute depression and suicidal tendencies. The records obtained show that he was treated with medication and ECT. The appellant discharged himself from treatment, and his reported symptoms on discharge showed marked improvement. Dr Marks had reviewed the case, and found no evidence to support any injury resulting from the treatment. While the appellant had serious health concerns, the cause of those could not be traced to this treatment. On the basis of this reasoning, the reviewer held that the respondent had correctly declined cover, and the application for review was dismissed. The Medical Report of Dr Marks [15] Dr Marks reported to the Medical Misadventure Unit on 24 August 2003. He said that in his claim the appellant had stated that he had suffered loss of vision in his right eye and memory loss as a result of ECT which he had in 1993. [16] Evidence of his impaired sight in his right eye was provided by Dr John Davison’s letter dated 27 June 1996. There was no substantial information confirming the presence of memory impairments, or the other physical impairments claimed by the appellant, apart from the documentation of his medical state in 1992-93 at which state he was troubled by depression and an impairment of various aspects of his functioning. [17] Dr Marks was of the view that the appellant was in a state that warranted the various treatments and care he received, and secondly that the treatments were orthodox in their nature, commonly used, and expected at the time and appeared to be well fitted to the state that the appellant was in at that time. His course of 109-2004 7 electroconvulsive therapy was short (four treatments) compared with the six to ten treatments which are commonly used for the treatment of depression. He did not return for completion of his planned treatment. [18] Specifically, Dr Marks was of the view that there was no evidence that physical injury had occurred as a result of the medical treatment. The documentation from the time of the treatment and immediately afterwards, did not contain any reference to damage to Mr Hughes’ right eye or complaints of his vision changing at that time. Electroconvulsive therapy could cause memory impairment that lasts for months, but it is extremely unlikely to cause permanent impairment of memory as administered during the last fifteen years. [19] The medications were ordinary in the choice of agent and quantities used. There was no evidence of the medications causing physical injury, and particularly they would not have caused the sort of complaints that the appellant reported. They were used during 1992-93 for only that limited period by the Mental Health Services in Christchurch, and in the view of Dr Marks they would not have caused physical injury. [20] The conclusion that Dr Marks arrived at was that there was no evidence that physical injury had occurred as a result of physical treatment, nor during and after medical treatment. [21] Dr John Davison did not have an explanation for the impairment of vision in the right eye, and raised the possibility that there had been an injury. There is no indication in the report of the appellant suffering an injury in the report of Dr Davison and his general practitioner, Dr Brewer. His impaired vision was therefore unexplained, and in the view of Dr Marks could not consider it could be linked to the electroconvulsive therapy or his mental health treatment during 1992- 93. [22] The information provided by Drs Deavoll, Walshe and Kirwin define a level of care and skill reasonably to be expected of practitioners in the Mental Health Services during that period of time. Dr Marks was of the view there was no evidence of medical error. Further, there was no evidence of grounds for considering mishap. 109-2004 8 The Submissions of the Appellant [23] The appellant submitted that due to the administration of major and minor tranquillisers and the electroconvulsive shock treatment, the appellant has been severely and physically mentally damaged. It is submitted his depression was drug induced. The direct effects are: memory loss, loss of sight in right eye, ringing in ears, insomnia, anxiety, depression, neck problems and brain damage. It is submitted that the drugs prescribed should not have been given to an alcoholic. It is contended that the tranquillisers caused depression. [24] It is submitted that the appellant was given misleading information about the effects of ECT. It was not fully explained to him the consequences of this treatment. [25] The appellant relied upon literature concerning the use of drugs. Further, the appellant provided literature from the Citizens Commission on Human Rights concerning electric shock treatment. In addition, there was a letter dated 27 June 1996 received from Dr John Davison concerning his eye condition, wherein he expresses an opinion the appellant had sustained injury at some stage. Again, there has been a letter provided by Dr Keith Cameron dated 29 July 1993 which records that the appellant had been an in-patient from July to September 1992 at Sunnyside Hospital, and the diagnosis was a major episode of depression. At the time he saw Dr Walshe, the appellant was still very depressed, and Dr Walshe was of the opinion that his medication was not helping much. Dr Walshe thought that the appellant needed better control of his depression. Decision [26] I have sympathy with the personal plight of the appellant. However, there is no coherent medical evidence which supports the contentions of the appellant that he suffered injury as a result of his medication or the electroconvulsive treatment that took place when he was in Sunnyside Hospital. Quite the contrary, the opinion of Dr Marks, a specialist, is of the emphatic view there is no evidence of physical injury resulted to the appellant as a result of physical treatment, nor during and after medical treatment. In addition, the drugs that he received were commonly used. There was no evidence that these medications caused physical injury, and 109-2004 9 particularly would not have caused the sort of complaints from which the appellant now complains. [27] Dr Marks was equally of the view that there was no medical error as the treatment accorded to the standard of care and skill reasonably expected of practitioners in the Mental Health Service during the period of time the appellant received such treatment. Further, there were no grounds for considering medical mishap. [28] In the case of Dally (Appeal No. DCA 48/96) Judge Ongley referred to the practice of furnishing extracts from medical and scientific journals in support of an appellant’s claim. He observed that this type of material could not assist the Court directly. The purpose of expert medical evidence is to provide the Corporation, the review officer or the Court with material which will enable a judgment on medical questions which are themselves outside the ordinary knowledge and competence of the tribunal in question to judge without assistance. Generally, in order to meet the ordinary test of admissibility the medical opinion needs to be provided by a practitioner or specialist who first qualifies himself or herself with sufficient skill and expertise in the process of diagnosis that is required in the particular case. The process involves often the very difficult question of estimating the probable cause of injury or disease, which is often a task that involves consideration of controversial views. The opinion then needs to be based on a patient history which can be verified independently in its important respects. [29] Occasionally, evidence falling short of that requirement can be helpful in determining a claim. Generally, copies of scientific publications are of no assistance at all, unless they are provided by a medical or scientific expert for the purpose of background information supporting the written or oral opinion of that particular expert, or illustrating a difficulty which the expert introduces to the Court. Judge Ongley said that concerning these issues District Court Judges hearing appeals under the accident compensation legislation had repeatedly tried to make clear. [30] The expert evidence provided by specialist opinion is all one way in this matter, and has not been contradicted. 109-2004 10 [31] Accordingly, for the reasons that I have given, the appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this ……19th....… day of ………April………. 2004 (J. Cadenhead) District Court Judge 109-2004 11