HG v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 128 /96. HELD AT TAURANGA . . 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 HG Appellant (Appeal No. DCA 55/96 AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the day of 21- 8 1996 NAME OF APPELLANT NOT TO BE PUBLISHED APPEARANCES Anna de Jong for appellant P A McBride for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns allegations of medical misadventure though medical error and failure to obtain informed consent in relation to the prescribing of benzodiazepine over a long period. In 1977 the appellant consulted her general practitioner, Dr Sare, who in turn referred her in July 1977 to Dr Hill, a psychiatrist. Dr Hill reported that the appellant presented with symptoms of acute anxiety and phobias. She gave a history of disordered behaviour since the age of 15. He expressed the view that there was a reasonable prospect of her being helped by out-patient treatment but that she should otherwise be admitted to Kingseat Hospital. He arranged for her to see a clinical psychologist at Waikato Hospital. Dr Hill prescribed Serepax as "first aid treatment". - 2 . Dr Hill saw the appellant again in March 1978 when she was symptom free, working and able to travel about. He ascribed the improvement to behaviour therapy techniques used by the clinical psychologist at Tokanui hospital. In February 1981 Dr Hill wrote to the appellant's general practitioner saying that the appellant had got in touch with him again but had failed to keep appointments. She had suffered a deterioration in her health and had become housebound. He prescribed Mianserin as an antidepressant beginning with 10 mems and working up to 30 mgms. He reported in March 1981 that she had built up her Mianserin dosage to 90 mgm and he had asked her to continue taking it for the next two weeks and he considered Anafranil if Mianserin was ineffective. He noted also that it might be necessary to consider an application for committal under the Mental Health Act. In May 1981 the appellant was referred to Dr Saunders, consulting psychologist. After seeing her on three occasions he expressed the view that she had designed a lifestyle that enabled her basically to stay within her family section with minimum difficulty with the help and co-operation of her husband. At first she responded to therapy but then discontinued her sessions with Dr Saunders. In May 1983 Dr Sare referred her to Dr Cliff, consultant psychiatrist who saw her at her home. He noted that the principal problem was anxiety which had apparently kept her for the most part at home during the preceding three years and which had consolidated during the last five months. Her phobic anxiety state was then having an adverse affect on her marriage. In June 1983 Dr Cliff expressed pessimism about achieving success in the current situation and thought that she had little motivation for change, but later in the same month he reported an improvement in a response to relaxation therapy. In the following month he reported that she had separated from her husband, that she did not appear to realise the difficulties that she would face, and that he was pessimistic about her prognosis at least in the short term. A compensation claim was lodged in November 1994. In June 1995 Dr Gregory Dunn, the appellant's general practitioner, responded to a request from the Corporation. He said that there had been no recent investigation into the appellant's condition apart from her visiting an accredited counsellor in April 1994 and initiating her own contact with a Auckland counsellor through the phobic society. He said she had difficulty in keeping appointments because of her intense agitation and fear that she experienced when leaving her own home. He noted an improvement which had occurred after she had seen a counsellor in Auckland in May 1994 but Dr Dunn had not seen her of late because or her fear of leaving her own home. He felt unable to give an opinion as to her prognosis. In August 1995 the claim was considered by the medical misadventure committee which reported as follows. "[H G's] claim is for ongoing problems from benzodiazepine prescriptions, allegedly with a lack of informed consent. The Committee has considerable evidence before it relating to the period of the late 1970's and early 1980's when [she] was under the care of Dr Edward Hill and Dr Graham Cliff, a consultant psychiatrist. When [she] first consulted Dr Hill in 1977 the treatment was for a phobic anxiety. state (now termed panic disorder) and for agoraphobia. Dr Hill's comments relating to this consultation describe the different treatment options available to [her]. He suggested the prescribing of Serepax for the treatment of anxiety, but described this option at the time as first aid treatment and suggested that [she] also see a clinical psychologist. In the period of the early 1980's [she] had again made contact with Dr Hill, and she also had a number of visits with her consulting psychologist, Steve Saunders. In 1983 she had a number of appointments with Dr Graham Cliff. Dr Marks has noted in his assessment of the notes from Drs Hill and Cliff, that there is a good definition of diagnosis, a long standing history of panic disorder and agoraphobia, and a variety of appropriate attempts at treatment both medical and psychological. As Dr Marks notes, Serepax is an effective anti-anxiety agent and [she] certainly had severe anxiety. The on-going use of Serepax therefore was appropriate as other treatments had failed and [her] anxiety continued. The use of Mianserin and Anafranil was for the treatment of the agoraphobia and was a very good treatment for panic disorder at that time. The Committee has carefully considered the evidence before us. We note [her] comments that she has suffered from on-going memory loss, severe suffering, confusion, depression and agoraphobia. The Committee has already noted that [her] presenting symptoms were of a phobic anxiety state, and agoraphobia. There is no evidence before the Committee to establish that [she] has suffered a personal injury as defined in the 1992 Act and there is no medical evidence that would support any such supposition of personal injury resulting from either medical mishap or medical error. Our recommendation therefore is that this claim be declined to become final after 15 working days unless evidence to the contrary should come to light. Action Required: The proposed advice of the Committee is that cover be declined, as neither medical error nor medical mishap have occurred. This advice to become final advice following the 15 day consultative period, should no evidence to the contrary come to light. The Corporation accepted the advice of the medical misadventure committee and declined the appellant's claim for personal injury by medical misadventure. The appellant applied for review of the respondent's decision and a review hearing was conducted on 19 December 1995. The appellant did not attend. She could not be expected to do so in view of her health problems. Mrs de Jonge attended the review as her advocate and represented to the Review Officer the history and symptoms of the appellant from the medical notes and the advocate's own knowledge of the matter. She also presented extracts from the medical literature in connection with benzodiazepine treatment, emphasising that the material was available to doctors and generally known in the medical profession since about the time the appellant began to receive treatment. Her argument is, in part, encapsulated in the submission that she made to the Review Officer that benzodiazepines cause what they intend to cure, in other words the side effects include excessive anxiety states and phobias, as well as other symptoms such as nausea and tremors. The case advanced for the appellant was unsupported by evidence from a medical professional. There had been no specialist examination for the purpose of investigating a claim for medical misadventure. The Review Officer was asked to make a judgment in relation to the inappropriateness of medical treatment and lack of informed consent without being presented with any evidence other than medical literature. She could not realistically be expected to be able to relate the medical literature to the appellant's case. She said: "Although I acknowledge there was a general awareness about long term use of Benzodiazepines in 1974, the prescribing of the Serepax for treatment of anxiety was noted at the time to be only 'first aid treatment'. Dr Hill appeared in his reports to have put a lot of thought into the treatment. Initially the Serepax was prescribed in a small dosage and [she] was to come again in a weeks time to report progress. [She] saw Dr Hill a number of times but he was unable to provide a medical report as he is now semi-retired and has no notes that relate to that time." and concluded "In order to establish cover, [she] needs to establish that she has suffered personal injury which is causally linked to the actions of a health professional. The Specialist Psychiatrist on the Medical Misadventure Advisory Committee felt that the treatment offered to [her] was entirely appropriate. He noted that the drugs were offered to her initially as a first aid treatment and that good alternative therapy was offered and received. The ongoing use of Serepax was appropriate as other treatments had failed and [her] anxiety continued. The Committee also decided there was no evidence to show that there had been negligent failure to obtain informed consent. I am persuaded that [she] and her family received informed consent and were reasonably involved in decisions as to treatment. I am not persuaded that the anxiety and agoraphobia are causally linked to the actions of a health professional, rather, that these conditions were pre-existing and as treatment was unsuccessful the condition became more entrenched." At the hearing of the appeal, Mrs de Jonge presented the case in the same way. It was pointed out that the Court had no evidence from the appellant about the periods during which treatment continued and the reasons for continued prescribing of benzodiazepines, if indeed they were continuously prescribed. Dr Hill had retired and was unable to provide records other that the referral responses that had been kept by Dr Sare and later given to Dr Dunn. There is an unsatisfactory lack of evidence and the claim must be considered with due allowance for the appellant's difficulty in establishing the facts on which she relies. Mrs de Jonge has referred to a reluctance of medical practitioners to assist with the material she requires. If that is the case, then it is likely that the complexities of the claim are such that they can only be properly dealt with by an experienced lawyer. Evidence in a complex or difficult case must be marshalled and presented correctly. An advocate cannot give evidence. An analysis of the kind of evidence required and the manner in which it should be adduced is usually beyond the skill of a person who does not have legal training and experience. - 5- After the hearing Mrs de Jonge lodged a statement written by the appellant on 22 August 1996. The statement is as follows: .. "Statement To whom it may Concern I [H B], born 23.2.58, would like to make the following statement. In 1977 I was taken to Dr Hill by my parents and given Anfranil and Mianserin, from then on I was also prescribed Serepax 10mg-30mg by Dr William Murray Sare and also by Dr Ian Forbes. I was prescribed these drugs, every 3 months. To do this I rang Gresham Clinic (now Te Awamutu Medical Centre) asked for a prescription, this was then picked up by Wards Pharmacy, made-up and delivered to my home. At no stage did the doctor visit me or asked me to attend the clinic. Due to memory loss, from Benzodiazepine, some dates are very hazy, but all information is on my file. Around 1982-83, I overdosed and all the drugs I had were taken off me. That night, I was vomiting severely and when my husband rang the duty doctor on Saturday (following morning) I was again given Serepax. I was on this drug until 1986 although in that time the brand name has changed to Oxepam I eventually weaned myself from these drugs, but have had to endure Agoraphobia, stuttering, bad shakes, memory loss, depression and severe mood swings since. These conditions make it extremely hard to hold down a full time position. It has only been with the help of good friends, that I have managed to stay off these drugs, even though it would be extremely easy for me to take them again, as the urge is still there. I have tried to obtain medical files, but feel I have been blocked by the medical profession. On my file the drugs would have been prescribed under the following names and addresses. [ .... ] The pharmacy the drugs were made up in: Majority: Wards Pharmacy, Te Awamutu Ensois Pharmacy, Te Awamutu Please accept this as the most accurate account of details that I can give you, without having my file. Yours faithfully [H G] The Court cannot receive evidence from one party without giving a further right of audience to the other party to the appeal. I have considered whether the additional material should be referred to the respondent but I have concluded in any case that the appeal will have to be dismissed. There is certainly a good deal of medical literature dealing with the dangers of benzodiazepines. Examples of the literature produced on behalf of the appellant are as follows: 1. Psychotropic Drugs: Drug Abuse, New Ethicals and Medical Progress, September 1969 "The majority of the non-barbiturate sedatives and anti-anxiety agents such as glutethimide ('Doriden', 'Gludorm'), meprobamate, diazepam ('Valium'), oxazepinedumbran', "Serepax') and chlordiazepoxide ('Librium') can lead to drug dependence syndromes somewhat similar to those presented by barbiturates (Ewart and Priest, 1967; Ewing and Bakewell, 1967). The majority of these drugs, if taken for long periods of time in high dosage, can lead to insomnia, tremors, delirious reactions and convulsions upon withdrawal. It is said that a convulsion following withdrawal of diazepam, in a person dependent upon this drug, does not occur until about eight days after withdrawal, a point which differentiates it from the more rapid onset of convulsions in the barbiturate- dependent patient (Essig, 1966). Furthermore, the symptoms of drug dependence are again somewhat similar to the intoxicated state more commonly seen in persons taking excess quantities of barbiturates. Dependence upon chlordiazepoxide is sometimes characterised by a marked loss of appetite and weight and sporadic episodes of enuresis (Ditman and Gottlieb, 1964)." 2. Dangers and medico-legal aspects of benzodiazepines, Dr C H Austin, Journal of the Medical Defence Union 1987 "There is a suggestion from one CAT scan study that prolonged benzodiazepine treatment is associated with structural brain damage, but this possibility requires further investigation. Affective reactions Chronic benzodiazepine usage can cause both depression and 'emotional anaesthesia', an apathetic state with emotional dulling. Benzodiazepines can also aggravate depression in patients with depressive disorders and provoke suicide." and "Abrupt or rapid withdrawal of benzodiazepines can result in major convulsions, which can be life-threatening. This complication is mainly associated with withdrawal from large doses, and is less common than in barbiturate withdrawal, but doctors should be aware of the dangers of abrupt cessation in patients who have taken benzodiazepines for more than a few weeks. Other severe withdrawal effects, which can occur on withdrawal from moderate or even small doses, include acute psychotic reactions with hallucinations, delusions, paranoia and acute confusional states. Major depressive disorders and even suicide may follow withdrawal after an interval, even in patients without previous psychiatric history. More commonly, the symptoms of withdrawal are those of an anxiety state, with panic attacks, insomnia, tremor, hyperventilation, increased muscle tension, and cardiovascular symptoms. Perceptual distortions and depersonalisation are frequent and particularly distressing to patients who may fear they are going mad. There is evidence from placebo controlled studies that these symptoms are related - 7. to benzodiazepine withdrawal and do not represent merely the return of a pre- existing anxiety state. The syndrome may be severe, worse than the condition for . which benzodiazepines were originally prescribed, and may be prolonged for many months. However, an unknown proportion of patients are apparently able to stop taking their drugs without difficulty." 3. Therapeutic Notes No. 207 Benzodiazepines - Use and Abuse, Dr Anne E Smith, New Zealand Department of Health Circular to Medical Practitioners March 1989 "There is little evidence to support the idea of benzodiazepines being effective in long term use, when used as an anxiolytic or hypnotic. The anxiolytic effect does not seem to last beyond 4 months' use, and the hypnotic effect has much less duration, no more than 14 days of continuous use." 4. The benzodiazepine withdrawal syndrome and its management, Steve R Onyett, Journal of the Royal College of General Practitioners, April 1989 "Although dependence on benzodiazepines has been demonstrated, there is little experimental evidence of craving or drug-seeking behaviour. However, other evidence of tolerance has been shown and the Committee on the Review of Medicines found little evidence of a therapeutic effect for benzodiazepines after four months of continuous use. It has been suggested that beyond this period benzodiazepines may prevent withdrawal symptoms occurring and that, although this may last for a long time, some patients may progress to a 'problem phase when withdrawal symptoms occur even though medication is still being taken. The most common symptoms of this phase are listed as disturbed sleep, anxiety (with panic attacks occurring when the next dose is due) and agoraphobia. Few clinicians would suppose that the remedy for these symptoms could lie in drug withdrawal rather than prescription. However, of Ashton's 12 patients, 1 1 had developed agoraphobia while on benzodiazepines. For four of these it resolved with no treatment other than withdrawal." and "Attempts to treat anxiety with benzodiazepines have found a sharp sting in the tail, with evidence of dependence which has led to considerable public concern. The withdrawal syndrome is both a physiological and a psychological phenomenon, and the general practitioner must consider not only a rational method of structuring withdrawal but also of communicating to the patient a realistic expectation of withdrawal and being free from drugs. Although in most cases withdrawal can be achieved with little disturbance to the patient, for some the process may be more difficult, requiring supplementary effort from other primary care staff or agencies with specific psychological expertise.' 5. Protracted Withdrawal Syndromes from Benzodiazepines, Heather Ashton, Journal of Substance Abuse Treatment 1991 "On sudden cessation after chronic use, anticonvulsant effects may be replaced by epileptic seizures, muscle relaxation by increased muscle tension, hypnotic effects by insomnia or nightmares, and anxiolytic effects by increased anxiety. The same symptoms can occur in attenuated form when the drugs are withdrawn slowly - 8 - This difficulty is compounded by the fact that, as long-term medication, benzodiazepines have mainly been prescribed for anxiety and insomnia, disorders : which themselves include most features of the drug withdrawal syndrome. When such patients undergo reduction of benzodiazepine dosage, especially slow reduction, how can one specify which emergent symptoms are "true" drug-related withdrawal symptoms, which are "pseudowithdrawal" symptoms (Tyrer, Owen, & Dawling, 1983), which represent a return of the original anxiety state, and which are the natural reactions of an anxious personality undergoing the stress of withdrawal? In circumstances such as these, the benzodiazepine withdrawal syndrome becomes largely a matter of definition." Those scientific articles are indicative of the dangers attendant on treatment with benzodiazepines, but they cannot be usefully taken into account by the Court in relation to the treatment in a particular case unless the element of medical error is manifest. There can be very few, if any, cases that reach the stage of appeal where the medical error is so palpable that the Court is able to reach a conclusion without expert assistance. The questions involved are not questions of law, for which the Court is equipped to deal without expert assistance, nor are they questions of objective fact which can be determined by a non-specialist tribunal without expert medical evidence. The Court can only decide upon evidence. Under s 90 of the Accident Rehabilitation and Compensation Insurance Act 1992 evidence may be adduced at a review hearing although it may not be admissible in a court of law. That section does not entitle the tribunal to give such evidence the same weight as it would if it was admissible in a court of law. In this case the Review Officer had material from the medical misadventure committee and there is no reason to suggest that she should have given that material less weight than the literature. Some of the unanswered questions are these: 1. Whether the appellant was prescribed benzodiazepines for a long period of time. 2. Whether the symptoms presented by the appellant in 1977 were of a kind that justified the prescription of benzodiazepines according to the medical knowledge then expected of a specialist exercising ordinary care and skill, and whether such prescribing was justified for the period that it did in fact occur. 3. Whether prescriptions were negligently given without further medical examination. 4. Whether in the event of further medical examination benzodiazepines were further prescribed and again whether such treatment was appropriate at that time consistently with the exercise of ordinary professional care and skill. 5. In the event of negligent treatment, whether the appellant suffered personal injury in the form of an adverse effect that she would not have suffered if appropriate treatment had been given. Those questions, and other questions that arise in such a specialised enquiry, cannot possibly be answered by resort to the kind of material that has been presented to the Review Officer and to the Court. At the very least, the appellant would have to - 9- undertake an appropriate forensic examination for the purpose of specialist assessment of her medical history and her response to treatment. I have considered whether there should be a complete rehearing of the matter but as the material considered in this appeal does not point to the possibility of more comprehensive and persuasive evidence being available there is no basis on which a rehearing should be ordered. The appeal is dismissed. DATED at WELLINGTON this 24day of October 1996 D A Ongley District Court Judge