Burrows v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No 228 198 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to s 91 of the Act BETWEEN HILARY BURROWS (DCA 168/96) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD ON: 30 September 1998 APPEARANCES: Mrs H Burrows in person Ms D Fotiades Counsel for Respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover for medical misadventure being medical error. 2 Background The appellant lodged a claim with the Corporation on 24 April 1995 claiming personal injury by medical misadventure being "misdiagnosed cysts when there was a tumour". This claim was later amended to "misdiagnosis of 3-4 cysts and a 2cm tumour in the glands of the uterus". At the time of lodging her claim the appellant was aged 52 years. As is required under the Act and the Medical Misadventure Regulations the claim was referred to a Medical Misadventure Advisory Committee to investigate and determine on the question of medical misadventure. For the purposes of her claim the appellant detailed the outline of her claim in an 8-page letter to the Committee. The period in respect of which the appellant was contending misadventure was the period 1986-1994 during which time her GP was Dr Rasanathan. It was Dr Rasanathan who had referred her to Dr Thakurdas, Obstetrician and Gynaecologist and against whom her primary claim was made. Requests for reports were made to the appellant's present GP, Dr Trumplmen, and Dr Niva Thakurdas. Both Dr Trumplmen and Dr Thakurdas reported to the MMAC and after consideration of the matter its proposed advice was that there was no medical misadventure as defined in s 5 of the Act. The Committee's opinion, which effectively sets out the narrative of the claim, stated as follows: "This is a claim which relates to an alleged misdiagnosis of a cyst which allegedly resulted in a cervical tumour. This is a claim that the Committee considered under error. On Mrs Burrows' evidence, she reports that she had seen Dr Thakurdas in 1988 for a cervical smear. This had shown a mild degree of dysplasia and a colposcopy was performed by Dr Thakurdas, at which time Dr Thakurdas found 3 Nabothian cysts which were drained. She had a repeat smear, which showed no evidence of dysplasia, with only benign abnormalities being present. Smears in the intervening year returned normal results and continued to be normal until a smear of 7 June 1994 was reported as being abnormal, i.e., CIN 3. Mrs Burrows has alleged that Dr Thakurdas was negligent in not diagnosing the cysts as being abnormal and thus resulting in a tumour. The Committee has considerable evidence before us. We have a letter from Mrs Burrows, but relating to the smears that Mrs Burrows had between 1986 and 1992. Dr Thakurdas points out that when she undertook the 3 colposcopy in August 1988, there were 3-4 cysts. The smear that followed this examination showed no evidence of dysplasia. She again reports the normal smears following this tie, until an abnormal smear in June 1994. Following the reporting of an abnormal smear, then an urgent appointment had been arranged for Mrs Burrows and appropriate treatment was instituted. As Dr Thakurdas pointed that the Nabothian cyst that she drained in 1988, were by definition cyst like formations, they are not tumours nor did they lead to a tumour as Mrs Burrows believes. The Committee is therefore satisfied that the treatment that Dr Thakurdas gave to Mrs Burrows over the years between 1986 and 1994 was appropriate treatment, and there is no evidence to establish medical error." This advice was given to the appellant who was given the opportunity of commenting and making further submissions and this she did. At this time she provided a copy of a letter from Candy Pettus the Manager of the Cervical Screening Programme. The Committee gave consideration to the matters contained in the appellant's further submissions and that letter from Candy Pettus and then gave its advice that it was still of the view that there was no evidence of medical misadventure. That advice was as follows: 'We specifically note the letter from Candy Pettus, the manager of cervical screening program in a letter dated 20th August 1995 in which Mrs Burrows wishes to bring to the attention of the Committee. Specifically it was said that in 1993 it was reported that Mr Burrows had a CIN II result in 1988 and was she referred to a specialist for a colposcopy. The Committee has before it the histology report of 1988 and that this was not in fact a CIN II result, as a grading system used at this time was grade two which indicates that there was no evidence of dysplasia and that there was mildly abnormal. This is not CIN II. The Committee notes that the grading system has been changed since that time. Mrs Pettus then raises whether Mrs Burrows was referred immediately to a specialist based on the clinical indication. The Committee notes again in the histology reports from the smears of 1992 and 1993 that these smears contain both ecto cervical and endo cervical cells. This encompasses the squamous Colombia area and that the smear taking was reported to be of good quality and certainly adequate for a histological report. The Committee is satisfied on the evidence before us that the treatment given to Mrs Burrows was appropriate and there was no evidence before us to establish medical error." Again this advice was given to the appellant who was given the opportunity to comment further. The MMAC met for a third time to consider the appellant's further submissions 4 and it concluded that there was nothing in the appellant's further contentions which would cause it to alter its recommendation to decline her claim. The appellant was formally notified that her claim for cover was declined by letter dated 13 December 1995. The appellant sought a review of that decision and a review hearing took place on 10 May 1996. At the review hearing the appellant repeated her allegations of medical negligence on the part of Dr Thakurdas, Dr Rasanathan and Nurse Palmer but did not produce any further evidence, either expert or otherwise, in support of her contention. The Review Officer stated: 'After reviewing all the medical evidence I find the medical evidence does not establish medical error or medical negligence in failure to diagnose a tumour. " The application for review was therefore unsuccessful. For the purposes of appeal to this Court from that decision the appellant enclosed what she stated were "my Doctor's reports for my hearing". These documents were two one- page documents of indeterminate origin and which did not appear to take the matter any further. One seemed to be some case notes, probably of her GP at the time, and in parts was not particularly legible. The other document proports to be a statement from Dr Partridge of the Community Medical Centre Trust but appears to be in the appellant's handwriting and again does not take the matter any further insofar as the issue of medical misadventure is concerned. The appellant contends that she has been the victim of medical error by registered health professionals. That term is defined in s 5 of the Act as meaning: "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 different decisions might have produced better results." Section 5(7) states: "Medical misadventure 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 appellant contends that there has been medical error in her case and alleges this medical error against one or all of the following parties: Dr M Rasanathan, the appellant's GP from 1976 to 1994. Medical error is alleged on the basis of a failure by Dr Rasanathan to carry out further tests following the smear of 4 July 1988; a failure to carry out further tests and examination when she presented in 1990 with various symptoms; and a failure to refer her to a specialist, Dr Thakurdas, for further tests. Dr Thakurdas, the appellant's Gynaecologist, Obstetrician and Colposcopist. Medical error is alleged for not removing the cysts in 1988; for referring her to Dr Rasanathan for smears when Dr Thakurdas should have carried out the smears herself; and a failure to carry out further examinations and tests in 1990 when the appellant presented with various health problems. Marilyn Palmer, a nurse at the Waitemata Health Centre who took three of the appellant's smears. Medical error is alleged due to Nurse Palmer's failure to carry out her duties in accordance with the Protocols for the Management of Abnormal Smears, including a failure to refer the appellant to a specialist for further tests following her smears in 1992 and 1993. A doctor who treated the appellant at National Women's Hospital. Medical error is alleged on the basis that the appellant was required to have two operations when she should have needed only one. Nurses in Ward 5 at National Women's Hospital. Medical error is alleged on the basis of these nurses spreading malicious gossip about the appellant. The appellant contends that as a consequence of the medical error of one or all of the parties above there was failure to diagnose a tumour in her cervix. As a result of the tumour, she required a hysterectomy and a second operation to remove lymph nodes. It should be noted that the appellant claims, without supporting evidence, that her Nabothian cysts were in some way responsible for her cervical tumour. The burden of proof of entitlement rests with the appellant. The standard of proof required is the balance of all probabilities. In this case the appellant made extensive representations to the MMAC and that Committee has received and considered all the available evidence relating to her complaints. It is noted that the personnel of the Committee included a Barrister and Solicitor and an Obstetrician and Gynaecologist. On each occasion that the Committee met, a different Obstetrician and Gynaecologist was a member. Thus the Committee had the benefit of three opinions from experts in the particular field in which the claimed negligence is said to have occurred. Against that background the Committee came to the clear view that there was no evidence of medical error and each of the three Committees which considered the matter came to the same conclusion. This Court has had no medical evidence upon which it could even begin to consider a contrary view from that asserted by the MMAC. Whilst the question of negligence is a matter of law and ultimately is for this Court to determine, this Court is heavily reliant on the evidence of medical personnel expert in the particular field and upon which it can make its assessment of whether or not there has been a falling below the standard of care required of the registered health professional in the particular instance. 7 As has already been stated the onus of proof is on the appellant to establish on the balance of probabilities that the Corporation and the Review Officer were wrong in the findings that they respectively made. This Court is firmly of the view that the decisions so made were correct and the appellant has failed to discharge the onus, which is upon her, to establish on balance that those decisions were wrong. Accordingly this appeal is dismissed. DATED at WELLINGTON this 3" day of November 1998 M J Beattie District Court Judge Burrows.doc