Hieindrich v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 132/ 96 IN THE DISTRICT COURT DCA No, 18/96 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN IS HIEINDRICH APPELLANT (DCA NO, 18/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act RESPONDENT Date of Hearing: 17 June 1996. Date of Decision: 31 october Appellant in person A E Howman as. Counsel for Respondent DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the appellant has suffered injury as a result of "medical misadventure". 2 This appeal was heard on 17 June 1996. At the conclusion of the hearing the appeal was adjourned to enable the Appellant to reply to the Respondent's submissions by 1 July 1996. Further submissions were received from the Appellant. The Respondent did not wish to file further submissions in response and relied on its earlier submissions. The Appellant attended his general practitioner, Dr B Narothum on 24 February 1992. He recorded the Appellant injured his left knee in an accident on 3 February 1992. He prescribed an anti-inflammatory drug, Voltaren. Dr Narothum's notes record that the Appellant complained of a "click" and of a stiff knee. On 2 March 1992 Dr Narothum noted that the Appellant was "fit for duty" and there was no click or swelling in his left knee. On 11 March 1992 Dr Narothum completed a C14 first medical certificate certifying that the Appellant had a "right leg laceration and left knee haematoma with click and effusion with swelling". The Appellant was certified fit for normal work from 24 February 1992. The Appellant in his submissions does not remember any right knee laceration. He contended that the Doctor's note taking was "highly questionable". Dr Narothum wrote in a letter dated 26 July 1993 that the Appellant improved as a result of Voltaren. The Appellant contended that he was on Voltaren for a number of months consecutively until he had a bad reaction to it. It affected his thinking so he made a number of errors at work. He claimed he suffered adverse consequences as a 3 result of the prescription of the drug attributing slow reactions and a number of near mishaps in his car to Voltaren. The Appellant complained to Dr Narothum on 11 May 1992 of a pain in his left knee. X-rays of his left knee joint showed no joint effusion and no significant joint or bone abnormalities. On the fourth occasion the Appellant attended Dr Narothum on 19 May 1992 he complained of pain in his right knee. Voltaren was prescribed and a C14 certificate completed certifying that the Appellant was unfit to work for a week. Dr Narothum also referred the Appellant to an orthopaedic surgeon, Mr John Cullen who examined the Appellant on 2 June 1992. He concluded that there were no clinical indicia to suggest a tier of meniscus or the ligaments of his knees. X-rays of the left knee disclosed a bipartite patella on the left side. Physiotherapy was suggested. The Appellant saw Dr Narothum for a fifth time on 28 August 1992 complaining of pain in his knees. He was re-examined by Mr Cullen on 7 December 1992. Mr Cullen recorded the Appellant complained of mechanical symptoms but there was no clinical evidence to allow a diagnosis to be made of such a complaint. He recommended an arthroscopy. The Appellant then saw Dr Mayhew who recommended he see a second orthopaedic surgeon, Mr Nicol in early 1993. Mr Nicol reported on 24 February 1993. He recorded the Appellant's history of pain and the degree of difficulty which he complained of associated with the prescription of the drug Voltaren. He reviewed the x-rays of the Appellant's left knee and confirmed that the x-rays supported a diagnosis of bipartite patella with a large lateral extension. He concluded that the Appellant's right knee was normal. He also said that it was possible that the Appellant had arthritis involving both knees but it was equally possible that he had an internal derangement of each knee. He recommended arthroscopy to confirm the diagnosis. This was performed on the Appellant's left knee on 22 March 1993 to remove cartilage tissue. Arthroscopic investigation of the right knee proved negative. The Appellant saw Dr Alan Phillips, an osteopathic physician and applied kinesiologyst on 28 January 1994. The Appellant's right knee pain was exacerbated when he moved from sitting to standing. Dr Phillips concluded that the Appellant's aetiology related to gross weakness of the right adductor muscle group and the right popliteus. On 7 February 1994 the right knee on examination was pain free. Subsequently the Appellant purchased and read medical books. He was able to reduce his own pain. He saw a naturopath. He sought a diagnosis from a clinic in the United States which suggested he had suffered toxic liver and afflicted gall bladder. That diagnosis also suggested he had ligament problems. The Appellant claimed medical misadventure in November 1993. The Corporation's Medical Misadventure Advisory Committee sought information on the Appellant's medical condition from Dr Mayhew, Dr Narothum, Mr Cullen and Mr Nicol. The Appellant's claim for medical misadventure was declined on 26 September 1994. The Committee concluded that there was no medical evidence before it to support the claim of incorrect treatment following the Appellant's right knee injury and were of the view that it was a case of an injury initiating the development of symptoms in an arthritic joint which had previously been asymptomatic. The Appellant sought a review of this decision and also laid a complaint before the Medical Practitioner's Disciplinary Committee. The review officer arranged for a medical report from Dr Nicholson orthopaedic surgeon. In his report dated 4 September 1994 Dr Nicholson concluded that Dr Narothum's initial diagnosis of the Appellant's injury to his left knee as "traumatic synovitis of the knee as a result of a direct blow to the knee" was an entirely reasonable working diagnosis. Dr Nicholson further concluded that if there were no findings on examination suggesting a meniscus tear it was reasonable for Dr Narothum to defer referral to a specialist. In his view the use of Voltaren was both logic and reasonable given her diagnosis of a traumatic synovitis. Dr Nicholson accepted the proposition that his left knee injury placed an additional strain upon the Appellant's right knee but did not conclude that this strain would have initiated the development of degenerative change to the right knee joint. Dr Nicholson concurred with the Committee's decision to decline cover on the basis of medical misadventure. In her decision on 31 October 1995 the Review Officer held that on the basis of the available medical evidence the Appellant had not suffered medical misadventure. The Appellant has obtained a further report dated 2 April 1996 from Dr E W Dryson. an occupational medical specialist. Dr Dryson concludes that the wear of the Appellant's right knee cartilage was due to extra strain placed upon that knee by carrying heavy weights and by favouring the knee. Dr Dryson suggests that the Appellant's right knee complaint could be viewed as a gradual process claim. The Appellant alleges he has suffered injury as a result of medical misadventure which is defined in section 5 of the Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act"). His claim is based on an allegation of "medical error" which is defined as follows: "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." The Appellant's submissions fall into three categories. First the Appellant contends that the Committee's decision was incorrect because the Committee took account of untrue allegations and failed to give regard to relevant materials. The Respondent submits that the Committee was invited to determine whether the available the Appellant's original medical practitioner Dr Narothum had observed a standard of care and skill reasonably to be expected of her in the circumstances. Reports were obtained from Mr Nicol, Mr Cullen, Dr Mayhew, Dr Narothum and the Appellant himself. The Committee concluded there was no evidence to support a claim of incorrect treatment. The Appellant however contends that the Committee ignored information given to them by Dr Stuart, suggesting that "no anti-bodies were present in the knee indicating no degenerative arthritic condition". There was no record of any evidence being provided to the Committee by Dr Stuart. I agree with the submission made by counsel for the Respondent that the issue before the Committee was the quality of the medical treatment provided to the Appellant by Dr Narothum. The Committee concluded that Dr Narothum acted reasonably in prescribing Voltaren, deferring initial reference to a specialist and in her eventual reference to Mr Cullen and her subsequent handling of the Appellant's case. I accept the Respondent's submission that the Committee acted reasonably in considering the evidence before it and reaching the conclusion which it did. Secondly, the Appellant alleges that Dr Nicholson's report was flawed for the following reasons. Dr Nicholson was provided with incorrect information and he failed for the following reasons to give due weight to information provided to him by the Appellant. The Review Officer also. he contends, failed to give due regard to certain statements in Dr Nicholson's report. The Appellant takes issue Dr Nicholson's conclusion that Dr Narothum had diagnosed the Appellant's condition as being caused by a direct blow to his knee. He argues that Dr Narothum should have reached a diagnosis that the knee itself was deranged. The Respondent contends that the available evidence supports that Dr Narothum did initially diagnose the Appellant's complaint as a result of "mild tenderness and bruising" and referred to the second paragraph of Dr Narothum's letter to the Medical Practitioner's Disciplinary Committee dated 26 July 1993 in which Dr Narothum confirms this initial diagnosis. Dr Narothum prescribed Voltaren on the basis of this diagnosis. Dr Nicholson took the view that both this diagnosis and the subsequent prescription of Voltaren was reasonable. No medical evidence has been produced by the Appellant to challenge this conclusion. It was contended by the Respondent that the Appellant in particular had not produced any evidence to suggest that Dr Narothum acted unreasonably in failing to link the "loud crack" of which the Appellant complained with a classic meniscus tear. Furthermore there was no evidence to suggest that the prescription of Voltaren was inappropriate. I agree. The Appellant also argued that Dr Narothum acted unreasonably in diagnosing a "brown smudge" or haematoma as the cause of his injury. Again the Appellant produced no medical evidence to suggest that such a conclusion was unreasonable. Dr Nicholson took the view that such a diagnosis was entirely reasonable. The Appellant contends Dr Nicholson failed to take into account his comment concerning his injury to his right knee from favouring it after suffering injury to his left knee. The injury to the Appellant's right knee developed after the Appellant's initial consultation with Dr Narothum. When he did complain of pain in his right knee, Dr Narothum referred him to an orthopaedic specialist, Mr Cullen. Again I find there was no medical evidence produced by the Appellant to say that this course was not appropriate. I agree with counsel for the Respondent's submission that the issue of the Appellant's right knee is a completely separate matter. This is confirmed by Dr Dryson's report which suggests that, if appropriate, the claim should be brought in respect of this injury as a gradual process claim. The third argument advanced by the Appellant was that the Corporation has ignored various materials supplied to it by him. I agree with the submission of counsel for the Respondent There is no evidence that either the Committee or the Respondent have not given due and proper regard to all relevant materials and there is no substance to the Appellant's claim. The appeal must therefore be dismissed. (Jane H. Lovell-Smith) District Court Judge