Hodgson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 195 /97 HELD AT TE AWAMUTU 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 JENNIFER MARY HODGSON Appellant (Appeal No. DCA 70/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of September 1997 APPEARANCES Anna de Jonge for appellant Fleur Patterson for respondent DECISION OF JUDGE D A ONGLEY This claim for cover for medical misadventure has reached the appeal stage without ever having been subjected to proper examination. The claim for cover was filed on 8 February 1996. Details of injury were stated as "Continually told doctors of chronic abdominal pain. Was continually told this was a psychiatric problem. Final diagnosis 5 years later was adhesions". Dr T F Smart completed the medical certificate on the claim form M46 stating "Multiple investigations recurrent abdominal pain. Was treated as psychiatric condition. - 2 - Confirmed by Mr Kumar as due to adhesions - physical complaint. Mrs Hodgson wishes to file medical misadventure claim - wrongful diagnosis" The Corporation's file consists of hundreds of pages of medical notes and medical correspondence, along with a handful of letters and memoranda reflecting the action, or lack of it, taken by the Corporation. Following lodgement of the claim the Corporation wrote to the appellant requesting further information. It also wrote to two medical practitioners for further information. The appellant replied by a letter which the Corporation received on 9 May 1996. The Corporation did not request further information from the appellant at that stage but it took steps to refer the claim to the Medical Misadventure Advisory Committee. The committee had not considered the claim by 1 November 1996 when the appellant signed an application for review which she lodged on 4 November 1996. Section 66 of the Act is as follows: 66. Claims not action may be treated as rejected - (1) Where the Corporation has not, within 1 month after a duly completed claim for cover or for any itemised treatment, service, rehabilitation, related transport, compensation, grant, or allowance is lodged, advised the claimant of its decision or made a reasonable request for further information, the claimant shall be entitled to treat the claim as having been rejected by the Corporation and may apply for a review of that decision under section 89 of this Act. (2) Where the Corporation has not, within 1 month after a reasonable request of a claimant for further information has been met, advised the claimant of its decision or made a reasonable request for further information, the claimant shall be entitled to treat the claim as having been rejected by the Corporation and may apply for a review of that decision under section 89 of this Act (3) Where any claim is being processed in accordance with regulations made under this Act for the purpose of obtaining the independent advice referred to in section 5 (9) of this Act, subsections (1) and (2) of this section shall have effect in relation to that claim as if, for the expression "1 month", there were substituted in each case the expression "3 months" The delay between May and November occurred after the appellant had provided the further information requested of her. She was not requested to supply further information and no decision was given within the following three months. Therefore, she was entitled to regard the claim as rejected and applied for review. She was not acting without assistance. She was represented by Patients Rights Advocacy Waikato Incorporated. The election to go to review without any original decision was of course justified under s 66 of the Act, but it was no help at all in achieving a proper investigation of the appellant's claim. Apparently the committee had not been able to reach the claim on one agenda and at another meeting had been unable to deal with it because of a conflict of interest. It was inevitable that there would be more than the usual delay in dealing with this claim. Little was achieved over a period of about nine months. The Corporation's file consisted of a vast array of material assembled in no particular chronological order. There was a memorandum containing a short written summary of some of the - 3 - material. There was also the complication that, while the initial claim for cover referred only to misdiagnosis of chronic abdominal pain, the further information provided by the appellant on 9 May 1996 appeared to allege a lack of medical care and failure to review her case which allegedly led to addiction. She noted also that she had received no support during withdrawal and suffered various symptoms which, it becomes clearer from other material on the file, she attributed to improper prescribing. Those matters expanded the scope of the claim considerably. It would have been very difficult to summarise the claim in short order and assemble the relevant facts. The claim ranged over a period of about 15 years treatment by more than twelve different doctors. Determination of the claim would involve assessment of the responsibilities of each doctor in relation to her claim and evaluation of the standard of care given by each doctor. It appears also that a question of lack of informed consent was raised once the review was heard, a matter which entailed even further inquiry. Under s 5(10) the Corporation was required to identify any doctor against whom medical error was claimed and give that doctor an opportunity to comment. That could not be done unless particulars of the alleged error in relation to each doctor were known. The case was presented to the Corporation without such detailed information. Corporation staff may well be open to criticism for failing to process the claim, but the difficulties were formidable. The Review Officer was obliged to deal with this complex matter before investigation had been undertaken. The review commenced on 28 January 1997. The Review Officer obtained some assistance from the more recent medical reports and, in particular, a report by Dr Douglas Baird of Freemans Bay Medical Centre which was prepared after the review was adjourned. Dr Baird stated that he had taken a long time to read the voluminous file and collate information across the various sections. He expressed an opinion that the appellant had been provided with care and attention of excellent quality over a long period. He said that her general medical practitioner was careful in his documentation and that his notes and letters indicated he was "studied and empathetic, and kept an open mind throughout when confronted by new or altered symptomatology. He referred readily and appropriately and took cognizance of advice he was given". Dr Baird considered there was no evidence anywhere that the appellant's general practitioner offered less than very good care. He referred to other general practitioners and specialists who had attended the appellant, and expressed the opinion that she had care of more than adequate quality. He was of the view that the appellant had abdominal adhesions as well as her psychiatric problems, and that she was mistaken in claiming that her only problem over the period of time covered in her complaint was her adhesions and that they were incorrectly attributed to psychological causes. He was of the opinion that the information provided to him strongly suggested ongoing need for psychiatric care. The Review Officer was influenced by that opinion and found that there had been no medical error. The Review Officer briefly considered the question of informed consent and noted that there was no medical support for the appellant's view that her problems were drug related. In other words, there was no evidence that she suffered 5 - The diagnosis of adhesions was made early in 1995 and a laparoscopic division was performed in May 1995. She was seen in early 1996 for recurrent pain although she had found the laparoscopic adhesion division had been beneficial. The pain was thought to be coming from large bowel dysfunctional recurrence of adhesions. In March 1996 she was attended for sciatic symptoms and some upper lumbar nerve root entrapment was suspected, but bowel pain appeared to be causing a continuing abdominal problem. During that period she was prescribed Colosac and Metamucil. There was a settling of abdominal problems but still low back pain which may have been connected with a lifting injury. After lodgement of the claim for compensation cover, the Corporation obtained up- to-date advice which did not disclose medical misadventure in prescribing or wrongly diagnosing, or in any other respect. Ms Patterson submitted on the appeal that there was no evidence from which it could be said, on the balance of probabilities, that there had been a failure of a registered health professional to exert a standard of care reasonably to be expected in the circumstances, and that the appellant had suffered poor health in a number of respects for which she had received competent medical treatment and advice, regularly reviewed and properly recorded. The appellant did not present any evidence to the contrary. Ms de Jonge provided the Court with literature dealing with harmful effects of a number of the drugs that had been prescribed for the appellant. The presentation of the case to the Review Officer and to the Court on appeal focuses on isolated parts of the overall evidence. For instance, it is suggested that the diagnosis and treatment of the bowel adhesions, having a beneficial effect in 1995, must inevitably lead to the conclusion that doctors negligently failed to diagnose the same condition in earlier years. A proposition of that kind simply cannot prevail because it is entirely artificial and ignores a wide range of other matters that need to be considered, particularly the presenting symptoms and reasons for conservative treatment. It is suggested that the appellant risked undergoing an entirely unwarranted colostomy. That is put forward as an illustration of the failure of doctors to exercise a proper standard of care in diagnosis and treatment. For the same reasons, it cannot be viewed in isolation because it ignores the inquiry that would have to be made concerning the symptoms, differential diagnosis and reasons for recommending treatment. Similar observations apply in relation to prescription of drugs. The fact that a number of drugs have harmful effects if taken for long periods is not, on its own, a reason to conclude that the drugs should not have been prescribed for the appellant. No adequate reasons at all have been put forward to allow the appeal and revoke the Review Officer's decision. I find the only consideration to be addressed is whether the appellant should have an opportunity of the evidence being considered by the Corporation and the Medical Misadventure Advisory Committee in order to provide a further initial decision. The decision to go to review without an investigation by the Medical Misadventure Advisory Committee simply deprived the appellant of an opportunity of having the evidence investigated. The Court, on appeal, is not equipped to conduct an investigation. The Court is not qualified to express any opinion about the propriety of diagnosis, advice, treatment and prescription. The - 6. Court is qualified only to weigh evidence, including expert evidence, in order to adjudicate on particular questions that arise out of the appellant's claim, its consideration by the Corporation and the decision of the Review Officer. The Court cannot arrive at the conclusions suggested by the appellant's advocate without expert evidence. If some evidence had been presented, raising a real concern that this claim warranted further inquiry, then it may have been possible to refer it for consideration by the Corporation and the Medical Misadventure Advisory Committee. No such evidence has been presented. For those reasons the appeal is dismissed. DATED at WELLINGTON this 23" day of September 1997 D A Ongley District Court Judge