HTM v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 270/97 Appeal No. DCA 288/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HTM of New Lynn, Auckland Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of August 1997 APPEARANCES Ms K Tahana, counsel for respondent Appellant on his own behalf DECISION OF JUDGE P F BARBER The Issue The appellant claims to have suffered personal injury caused by accident through medical misadventure and seeks compensation. On 24 November 1994, the Review Officer carefully reviewed the facts and confirmed the Corporation's decision declining the claim. 2 The Facts The appellant is aged 37. It seems that he suffered a convulsion as a baby which caused a scar upon his brain from which epilepsy developed about the time of his puberty. That seems to have been at about age 14 years although the seizures may have commenced from age 11 or 12 years. In any case, he was prescribed medication to control the onset of his seizures and until aged 28 he subsisted with medication in various doses and types. Over that period he had been regularly monitored and reassessed by various doctors. The appellant tells me that at various times over those earlier years he felt that the number of pills he was required to take daily was too high and that the pills made him look backwards rather than forwards. In 1987 at about the age of 28, a particular doctor referred him to surgery which was conducted by a surgeon on 10 May 1988. The surgery had been major and risky but was very successful in that previously, probably due to the medication, the appellant was almost devoid of emotions and had to bear constant voices and music in his mind and brain. He heard the same voices and music over and over again. There were other unpleasant side effects from his medication treatment such as drowsiness and nausea. The surgery in 1987 was a temporal lobectomy which seemed to, somehow, lift pressure from part of the appellant's brain, greatly ameliorated the noises in his mind, and enabled him to steadily withdraw from his previous medication. However, he still heard voices and other sounds from the past and present in his mind but was fortunate enough to attend a rehabilitation centre and meet recovering alcoholics and drug addicts who had very similar symptoms to his. The appellant had never taken alcohol or drugs, nor even smoked. Accordingly, he joined in such activities as AA meetings and found that the steps helpful to recovering alcoholics caused great improvement in his own condition. At the rehabilitation centre he also met a psychologist whose counselling greatly assisted him. Accordingly, by about 1994 or earlier, the appellant seemed to have acquired good mental health and, happily, is still well and anticipates remaining well indefinitely. However, an aspect of his recovery is that he has recovered his emotions and is angry that, in his view, the medications prescribed for his epilepsy and for "the things going in my head" deprived him of a normal life between the age of 14 (or earlier) and 28 years (or a little later). He feels that he was not properly treated by his medical advisors between about the ages 11 and 28 and that he should, therefore, receive compensation for medical misadventure. He lodged such a claim with the respondent on 15 December 1993 seeking compensation for loss of enjoyment of life as a result of side effects to the different medications to which he had been prescribed since his youth. He had emphasised that such side effects had distorted his ability to experience emotion and think freely. The appellant's claim was considered by the respondent's Medical Misadventure Advisory Committee. The doctor (Dr Svensen) who had referred the appellant for the 1987 surgery wrote to that Committee on 17 February 1994. Dr Svensen recorded 3 that the appellant had informed him that he felt that his life had ceased at the age of 14 and had restarted following the 1987 surgery and that the appellant attributed his loss of enjoyment and mental function over those years to his medication. Dr Svensen also recorded that the appellant was functioning well since surgery but still required some medication (Tegretol) to keep him fit free. Dr Svensen stated his opinion that the appellant's treatment had been appropriate prior to 1988 and stated, inter alia: "Unfortunately, although his levels were therapeutic, and in some cases subtherapeutic for most of the time (at times his levels were high but these were adjusted by his various doctors) he experienced side effects of amnesia, problems dealing with emotional issues and depression while on medication. Until surgery was offered, he required medication to prevent fits and the side effects were an unfortunate necessity to keep him fit free." The appellant emphasised to me that he knew there would be side effects from his various medications and, apparently, information to that effect was on the labels of the various bottles of medicine. He has the commendable attitude that he is thrilled with the outcome of his 1987 surgery, and subsequent recovery procedures, and appreciates that many others are worse off than him. However, he feels that his medication treatment between the age of 14 and 28 years was erroneous. The Relevant Legislation The appellant's claim is based upon an allegation of "medical misadventure" which is defined in the Act as follows: "5. Definition of "medical misadventure"-(1) For the purposes of this Act,- "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 different decisions might have produced better results: "Medical misadventure" means personal injury resulting from medical error or medical mishap: "Medical mishap" means an adverse consequence of treatment by, or at the direction of, a registered health profession, properly given, if- (a) The likelihood of the adverse consequences of the treatment occurring is rare; and (6) The adverse consequence of the treatment is severe." 4 Reasons for Decision The burden of proof lies on the appellant and the standard is the balance of probabilities. I find that the appellant has not proven that he has suffered from medical misadventure. The medication prescribed for the appellant had a number of known side effects. That was and is well known. No doubt the appellant's medical advisors concluded that the benefits of the medication to the appellant had outweighed the detriment of the likely side effects. It is clear that at no stage did the appellant suffer any reaction which could be described as rare and severe; and the decision to continue to treat him with medication had been appropriate. Accordingly, there could not have been either medical error or medical mishap. I am sure that mental health knowledge and procedures continue to progress each year and by 1987 there were tests available to indicate the worth of surgery in the appellant's case. It cannot be appropriate to judge medical standards of the past with the knowledge of the present. It is clear that symptoms suffered by the appellant at material times were the known consequences of the medication prescribed. I am sure that Dr Svensen is correct in his opinion that the side effects suffered by the appellant were an unfortunate necessity to allow him to remain free of seizures. There is no evidence to suggest that the appellant suffered consequences of the medication which could be said either to be "rare" or "severe" within the meanings of those terms as also defined in section 5 of the Act in terms of the above definition of "medical mishap" Medical mishap is "an adverse consequence of treatment" given by a registered health professional, properly given if the likelihood of the adverse consequence of the treatment occurring is rare and the adverse consequence of the treatment is severe. The rarity aspect is further defined in section 5(2) as "if the probability is that the adverse consequence would not occur in more than 1% of cases where that treatment is given". The side effects experienced by the appellant at material times were recognised and not unexpected. The medical reports indicate that no addiction arose from the prescription of drugs to the appellant. Essentially, the various medications were well known and had accepted side effects. These were considered to be outweighed by the advantages of controlling the appellant's epilepsy and were considered necessary for that purpose. I could not disagree with the Review Officer's finding that in the circumstances the appellant's doctors had no choice but to prescribe the medication they did. As he said there is nothing to suggest that high dosages were given in error and it seems that the side effects were an unavoidable price for the control of the epilepsy. Accordingly, I could not find that there has been medical mishap. The aspect of whether the adverse consequences of treatment were "severe" in terms of s.5(4) was not explored before me. An adverse consequence needs to be rare and severe in terms of the definition of "medical mishap". I find from the overall evidence that the appellant suffered from the known on-going effects of the drugs prescribed to him for the control of his epilepsy and that he has not suffered from medical mishap. 5 In his said letter to the Committee Dr Svensen also stated his opinion that the appellant's treatment by medication prior to 1988 was appropriate, that the levels of medication prescribed were therapeutic or subtherapeutic, and that the extent of the medication was continually monitored. There is no reason to doubt those views and I can only conclude that the available medical evidence indicates that the prescription of medication to the appellant was appropriate for the control of his epilepsy and was necessary to allow him to remain fit free. Essentially, medical error is defined in s.5 of the Act as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." The definition goes on to state that it is not medical error because desired results are not achieved or because subsequent events show that different decisions might have produced better results. There is nothing in the evidence to indicate that the prescribing of the various drugs to control the appellant's epileptic seizures were negligent, inappropriate or lacking of care and skill in all the circumstances. All the prescribed drugs were of a recognised type and were accepted professional medical treatment for epilepsy. There is no evidence to suggest any lapse in professional standards. Accordingly, medical error has not been established. I observe that it is not clear to me whether the voices and music in the appellant's mind were part of his illness or part of his medication but it is well known that they can be part of the burden of mental health problems. Some of the submissions of the appellant suggest that the voices and music were still quite a problem after the operation but were eliminated by counselling between about 1988 and 1993. Perhaps, the voices and music appeared to become more persistent to the appellant because his medication was substantially reduced after the operation. However, it also seems to follow from the appellant's written submissions that the voices, music, and noises "in my head" were part of the side effects the appellant had to bear from about age 14 due to the medications and that those noises were substantially reduced by the 1988 surgery. I note his assertion "that large quantities of prescribed medication caused me to become partially incapacitated". One can certainly understand the distress and anger of the appellant but, worrying though his situation has been, there simply is no evidence of medical misadventure. A final point made by Ms Tahana is that section 63(2) of the Act and its predecessor provide that no claimant is entitled to any payment for personal injury unless that claimant has lodged a claim for cover within twelve months after the date on which the personal injury is suffered. This would have meant that because the appellant became aware of the matters giving rise to his claim at or about the time of his operation in 1988, he had been too late in filing a claim in 1993 and would have been ineligible to any entitlements under the Act. However, section 63 of the 1992 Act was amended in 1995 from 1 July 1992 to confer a discretion on the respondent to consider late claims, i.e. made outside the said twelve month period, where there has been no prejudice to the respondent Corporation. Ms Tahana submitted that because the appellant's claim for medical misadventure was based on events of many years, ago, and the doctors who prescribed the medical are rather no longer in New Zealand or alive, then the respondent would be prejudiced in assessing the situation. Ms Tahana therefore submits that even if the appellant's appeal were successful, he would be ineligible to any entitlements under the Act due to the existence of section 63. I have already held that the appeal fails so that I do not need to decide this jurisdictional or technical point based on section 63. I merely observe that I do not think that the respondent has been prejudiced by the passing of time because Dr Svensen has been able to provide very helpful and coherent reports to it. In terms of my above reasoning, the appeal is hereby dismissed. DATED at WELLINGTON this |9day of December 1997 Judge P F Barber District Court Judge Wellington dc288-94.doc (nr)