Brewster v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT WELLINGTON I TE KOTI-A-ROHE KI TE WHANGANUI-A-TARA [2018] NZACC 135 ACR 200/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN ISAAC BREWSTER Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 22 August 2018 JUDGMENT OF JUDGE K D KELLY [1] This is an application for leave to appeal a decision of Judge L G Powell delivered on 31 October 2016. Background [2] On 27 January 2010, the applicant Isaac Brewster was delivered breech where his feet, rather than his head, emerged first when his mother went into labour. Despite multiple abdominal palpitation examinations undertaken by midwives during antenatal visits, Isaac Brewster was never diagnosed as a breech presentation until a foot was seen protruding from his mother's vulva when labour was well underway. The consultant obstetrician proceeded with vaginal delivery and a general anaesthetic was administered so that Isaac could be delivered through the use of forceps. When Isaac was delivered, he presented as 'floppy' and Hypoxic Ischaemic Encephalopathy (HIE) was diagnosed, leaving him with cerebral palsy. [3] A claim for treatment injury was lodged on 26 May 2010. After commissioning independent reports, the Corporation concluded that Isaac's HIE was not caused by treatment factors but was likely caused by cord compression that occurs with breech presentations. The treatment was considered to have been of an acceptable and appropriate standard within expected professional guidelines and that nothing that the health professionals did, or did not do, contributed to the HIE. Rather, Isaac's injury was considered to be the result of the underlying condition (i.e. the breech presentation). The claim for cover was declined by the Corporation on 17 December 2010. District Court Judgment [4] Two issues were argued on appeal before his Honour Judge Powell. First, it was argued that had the midwife ascertained Isaac to be in breech by the date of the final antenatal check on the day he was delivered, arrangements could have been made for an emergency caesarean section and the HIE avoided. [5] Secondly, it was argued in the alternative that under the Guidelines for Consultation with Obstetric and Related Specialists Medical Services (Referral Guidelines), the lead maternity carer should have recommended that the responsibility for Isaac Brewster's case be transferred to a specialist due to his mother, Mrs Brewster, being morbidly obese. It was argued that had such a referral taken place, this would have resulted in ultrasound scans leading to greater chance of Isaac's breech presentation being detected. 6] The first question turned on whether not picking up that Isaac was in breech, constituted a treatment injury. Mr de Groot, on behalf of Isaac, accepted that there was no suggestion that the midwife was negligent or had otherwise failed to provide an appropriate standard of care in carrying out the abdominal palpitation examination in which it was concluded that Isaac was in the cephalic presentation. [7] Mr de Groot submitted, however, that the fact of an incorrect diagnosis is sufficient in itself to establish cover for a treatment injury and that the Corporation erred by forming the view that because there was no departure from an acceptable standard of care in failing to identify the breech, Isaac's injuries were not caused by treatment but by an underlying health condition. 8] In contrast, Mr Butler for the Corporation submitted that a 'factually incorrect diagnosis' without more, is not treatment for the purposes of's 33 of the Act. [9] Judge Powell said at [22] of his decision that: ... the key issue is whether the fact that at least insofar was the diagnosis reached by Midwife Gray on 27 January 2010 was incorrect was that by itself sufficient to give rise a treatment injury, notwithstanding that as noted... there is no suggestion that Midwife Gray was in any way negligent or otherwise breached her duty of care to Mrs Brewster and/or Isaac. [10] At the time of the hearing, the interpretation of the treatment injury provisions of the Act were also being argued by Mr de Groot and Mr Butler before Gendall J in Accident Compensation Corporation v Adlam' which judgment was issued before Judge Powell made his decision. [11] Judge Powell considered that Adlam was important where Gendall J said in respect "a failure to provide treatment" (s 33(1)(d)) that: [49] ... the effect on the current application of the treatment injury provisions in cases such as the present requires the Courts either to find that there was a breach of duty of care in the traditional medical negligence sense, or that while there was no negligence, the physician should have acted in an alternative manner, given that some form of observable indications were present. [12] Judge Powell concluded at [24] in respect of the first issue on appeal, that: While the present appeal is not on its face concerned with the provision of alternative treatment the position is none the less similar. First, in reaching the diagnosis that Isaac was in breech there was no suggestion that there was any "observable indication that Isaac was in breech", and secondly the argument is that had the diagnosis been correct different treatment should and would have been provided. As in Adlam a failure is alleged, being a failure to correctly diagnose that Isaac was in breech, and like Adlam it is only with objective hindsight that Midwife Gray's diagnosis can be seen to have been incorrect. Gendall J concluded a "failure to treat" cannot occur in circumstances where there were no observable indications for a different treatment course and likewise no treatment injury occurs "where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result". Those conclusions are directly elevant to the present case. As a result, I agree with Mr Butler that the first ground of appeal cannot succeed. Accident Compensation Corporation v Adlam [2016] NZHC 1487, [2016] 3 NZLR 492 [13] While this was enough for Judge Powell to dispose of the first ground of appeal, Judge Powell also found the obiter comments of Williams J in Baker v Accident Compensation Corporation 2 persuasive. In Baker, Williams J said s 32(3) (which provides that the fact that the treatment did not achieve a desired result does not, of itself constitute treatment injury), forecloses the possibility of arguing as a general proposition that the result, of itself demonstrates causation. In Baker, Williams J said that is s 32(3) is to have any meaning at all, it must mean that failure does not necessarily equate to causation. Judge Powell adopted the reasoning of Williams J concluding at [32]: In this case it is accepted by the parties and I find the evidence to be clear that there was no issue with the way in which the abdominal palpitation was carried out by Midwife Gray other than it was not successful. Given this, I accordingly respectfully adopt the reasoning of Williams J in Baker and conclude that the mere fact that the properly administered abdominal palpitation carried out by Midwife Gray on 27 January 2010 was not successful in diagnosing the fact of Isaac's breech presentation, is not sufficient to constitute causation of the purposes of s 32(1)(b) of the Act. Ultimately the cause of Isaac's HIE injury was not the result of the treatment he received but rather the consequence of the breech presentation not being diagnosed until after Mrs Brewster's labour had begun. For these reasons also the first issue raised on behalf of Isaac cannot succeed. [14] In respect of the second issue, his Honour Judge Powell found that when Mrs Brewster was first seen and her weight recorded by the lead maternity carer she was not morbidly obese. The evidence was that the obligation was to weigh Mrs Brewster when she was less than 12 weeks pregnant, such that there was no failure on the part of the midwives caring for Mrs Brewster to not to continue to monitor her weight throughout the pregnancy. Further, when at 20 weeks of her pregnancy Mrs Brewster saw a physician at the Maternal and Foetal Medicine Clinic of Christchurch Women's Hospital due to concerns about her blood pressure, her weight was irrelevant for the purposes of a referral for morbid obesity. 15] In any event, Judge Powell concluded the evidence was that even if a specialist referral had been undertaken, while increasing the possibility that a breech presentation would have been detected, this was by no means a certainty and it was not possible to conclude that specialist transfer would have avoided the injury. 2 Baker v Accident Compensation Corporation [2015] NZHC 3343 3 Baker v Accident Compensation Corporation, above n 2 at [37] cited by Judge Powell at [28] - [29] [16] Judge Powell, citing Accident Compensation Corporation v Ambrose', concluded at [50] that simply a chance at a better outcome is not sufficient to demonstrate causation: As a result, whether further scans would have made any difference to the outcome would have entirely depended on when Isaac went into breech and whether this was able to be picked up on a scan. At best this would have amounted to no more than a chance of a better outcome for Isaac which, for the reasons set out above, is not sufficient for the purposes of the legislation. It accordingly provides a further reason why the second issue raised on behalf of Isaac cannot succeed. [17] Accordingly, the appeal was dismissed. Application for leave to appeal [18] Mr de Groot seeks leave to appeal the decision of Judge Powell on the following questions: [a] Did the District Court err in finding that the fact of an incorrect diagnosis could not itself support a claim for cover under ss 32 and 33(1)(b); and (alternately) [b] Did the District Court err in finding that cover was excluded by s 32(3)? [19] Mr de Groot submits that s 33(1)(b) 'is its own animal' and needs to be considered as such. Mr de Groot submits that it is arguable that a misdiagnosis 'in fact' rather than a misdiagnosis in the sense of some sort of mistake or normative departure from a standard (in the sense of failing to act on an indication) is sufficient for s 33(1)(b). Further, this is more consistent with the intention to remove fault concepts from the cover regime. It is submitted further that neither Adlam, nor the language of s 33(1)(b) can be interpreted as importing a standards limitation to diagnosis claims. Mr de Groot respectfully submits that Judge Powell fell into error by assuming that the 'failure to treat' reasoning in respect of s 33(1)(a) is applicable to s 33(1)(b) claims. 20] Mr de Groot also respectfully submits that in Adlam, it was implied that Parliament approved the use of 'hindsight reasoning' in keeping with the 'no fault' ethic of the scheme such that Judge Powell's decision is unsustainable. 4 Accident Compensation Corporation v Ambrose [2007] NZCA 304 [21] In terms of the second question, Mr de Groot submits that it is arguable that Judge Powell erred in effectively treating s 32(3) as importing a general standards limitation when s 32(3) is operative regardless of the type of causative treatment. Further, it is submitted that s 32(3) is sufficiently vague such that its scope merits appellate consideration. An extremely broad interpretation adopted, Mr de Groot says, is capable of excluding almost any treatment injury claim and there are sensible arguments that the exclusion was drafted for a different purpose than the one for which his Honour used it. [22] Mr Butler for the Corporation submits that the application raises no questions of law capable of bona fide and serious argument and that the applicant seeks to re-litigate points of law that have been settled by the High Court and Court of Appeal in Adlam. Nor, Mr Butler submits, do the questions of law posed by the applicant have a reasonable prospect of success. [23] In respect of the first issue raised by the applicant, Mr Butler submits that the Court of Appeal has given specific consideration to s 33(1)(b) and rejected the approach argued for by the applicant. Further it is submitted that the appellate authority is that the treatment provisions are to be applied as a cohesive whole contrary to the position that s 33(1)(b) be argued as "its own animal". Further, Mr Butler submits that the High Court in Adlam held that the hindsight analysis suggested by the applicant is wrong and incompatible with the treatment injury provisions. [24] In respect of the applicant's second question, Mr Butler submits that s 32(3) is the subject of binding High Court authority, and Judge Powell did not hold that s 32(3) imposes a general standards limitation applicable to all forms of treatment. In addition, Judge Powell's decision, it is submitted, turns on his finding regarding the first question. If leave is denied in respect of that question, it should also be denied in respect of the second question. Analysis [25] Section 162 of the Act provides that an applicant is entitled to appeal to the High Court on questions of law. The questions of law must be capable of bona fide and serious arguments. The questions raised by Mr de Groot are undeniably questions of law. The issue here is whether they are capable of serious argument. Impact Manufacturing Lid v Accident Rehabilitation and Compensation Insurance Corporation (wellington High Court, 6/7/2001, AP266/00, Doogue J at [4]-[9]. [26] In reaching his decision, Judge Powell considered whether the incorrect diagnosis reached by the midwife on 27 January 2010 was sufficient in itself to give rise to a treatment injury. In doing so, his Honour said at [23], Adlam is important. There, in the High Court Gendall J, said: [49] ... the effect on the current application of the treatment injury provisions in cases such as the present requires the Courts either to find that there was a breach of duty of care in the traditional negligence sense, or that while there was no negligence, the physician should have acted in an alternative manner, given that some form of observable indications were present. [27] Before the Court of Appeal Mr de Groot argued that in the case of a failure to treat in s 33(1)(d), the failure could be construed as 'failure simpliciter', or non-occurrence, without any connotation of departure from a standard. (28] The Court of Appeal examined the ways in which a treatment injury arises by considering the individual paragraphs in s 33(1)'. Certain comments of the Court of Appeal are repeated here: [40] The drafting of ss 32 and 33 means that both must be applied together for the purpose of ascertaining whether a person has suffered a treatment injury. ... [60]... In the present case, a departure from what should have been done is inherent in the combination of ss 32 and 33 for the reasons we have given. [62] Taken as a whole the provisions indicate a legislative intent to limit cover for persons who suffer injury while undergoing treatment, rather than providing cover for all those who suffer. The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions. The drafting could have simply provided for cover for all injury suffered while a person undergoes treatment. But that course was not taken. Rather, boundaries were set out that have the effect of limiting the availability of cover for injury during treatment. A failure in the sense of omitting to take a step required by an objective standard is necessary [65] ... It will be apparent from our reasoning that we have discerned a legislative policy that, while not requiring a finding of negligence, still operates on the basis that a treatment injury will only have occurred where there has been some departure from a standard and that departure has caused a personal injury. Accident Compensation Corporation v Adlam , above n 1 at [49] Adlam v Accident Compensation Corporation [2017] NZCA 457 [71] ... These observations tend to support our conclusion that the decision as to whether there has been a treatment injury will often turn on whether some other course of treatment should have been taken other than the treatment in fact provided or withheld. But on the Court's approach there must be some indication of the need to take the alternative course of action before the course taken can be regarded as causing the injury. [73] There was no suggestion of a breach of an experienced specialist standard in this case. There were no observable indications prior to the fever that warranted medical intervention and there were no indications for a different treatment course in the circumstances. We are bound to act on those factual findings, set out in the case stated. [29] Similarly, as already noted, Judge Powell recognised at [24] that: ... in reaching the diagnosis that Isaac was in breech there was no suggestion that there was any "observable indication that Isaac was in breech", ... As in Adlam a failure is alleged, being a failure to correctly diagnose that Isaac was in breech, and like Adlam it is only with objective hindsight that Midwife Gray's diagnosis can be seen to have ben incorrect. Gendall J concluded a "failure to treat" cannot occur in circumstances where there were no observable indications for a different treatment course and likewise no injury occurs "where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result". Those conclusions are directly relevant to the present case, are binding on me, and must be applied in this case. As a result, I agree with Mr Butler that the first ground of appeal cannot succeed. [30] In terms of the issue of hindsight reasoning, Gendall J said in Adlam: [57] ... I do find persuasive the submission advance by Mr Butler for ACC that a hindsight analysis would effectively turn the ACC scheme into a system under which perfect treatment outcomes were guaranteed for patients. The effect of that would obviously result in a significant extension of cover, (possibly to include for example all kinds of illnesses that much later proved to have undiagnosed consequences) with corresponding significant impacts on the scheme itself. [31] The Court of Appeal did not find it necessary to answer the applicant's question as to whether the High Court "was correct to find that a treatment injury does not occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result". The Court of Appeal did conclude, however, that the High Court was correct to find that a failure to treat cannot occur in circumstances where there are no indications for a different treatment. As hindsight reasoning was not something on which the Court of Appeal found necessary to decide, the position reached by Gendall J stands. 8 Adlam v Accident Compensation Corporation, above n 7 at [75] - [76] 32] In light of Adlam it is not seriously arguable, applying ss 32 and 33 together, that a misdiagnosis 'in fact' is sufficient to establish a treatment injury or that in the case of a misdiagnosis, a departure from a standard is not required. [33] In terms of the second question, Mr de Groot submits that Judge Powell erred in effectively treating s 32(3) as importing a general standards limitation in saying that the fact that the abdominal palpitations did not achieve the desired result, and that something more was required. [34] In Adlam, Gendall J said: [52] ... as I have noted, s 32(3) provides that "the fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury (my emphasis)." The qualifying phrase "of itself" is clearly important. The outcome is not solely determinative of whether there is a treatment injury, but may be a relevant consideration when assessing whether a claimant is entitled to cover. [35] And, as the Court of Appeal said: [62] ... The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions. [36] In light of this, it does not appear to be seriously arguable that Judge Powell J erred by finding that cover was excluded by s 32(3). [37] Moreover, as noted by Mr Butler, Judge Powell's finding re s 32(3) was an 'additional obstacle' and not determinative: [25] Although this conclusion [about the alleged failure to correctly diagnose Isaac to be in breech] is sufficient to dispose of the first ground of appeal, I note that there is in any event an additional obstacle to cover for Isaac in this case that was not present in Adlam. This is s 32(3) of the Act..." Decision [38] For the reasons stated, notwithstanding that the appeals are undoubtedly questions of law, they are not seriously arguable in light of Adlam nor do they have a reasonable prospect of success. They do not, in my view, cross the 'threshold of arguability". [39] Accordingly, the application for leave to appeal to the High Court is dismissed. Judge K D Kelly District Court Judge Solicitors: John Miller Law, Wellington for the applicant Russel McVeagh, Wellington for the respondent 9 Accident Compensation v Hawke [2013] NZHC 2982 ACR 200-15- LTA Brewster