Glasson v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 170/2005 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JENNIFER MAY GLASSON of Auckland Appellant (Appeal No. AI 639/04) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 12 May 2005 APPEARANCES/COUNSEL Appellant in person D. Fotiades for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this appeal is whether the respondent’s decision dated 6 August 2003 declining cover for medical misadventure is correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2005/170- 2005.doc AE Narrative of Facts [2] I have read the file and substantially adopt the narrative of facts as outlined by the respondent, as I am satisfied that this narrative is accurate. [3] In or about November 2002 the appellant lodged an ACC45 claim form dated 12 November 2002 with the Accident Compensation Corporation (“the Corporation”) seeking cover for medical misadventure arising from dental treatment. [4] In her claim the appellant states that the treatment giving rise to the medical misadventure claim was, “Wisdom tooth extraction, filling replacement 1987”. The physical injury alleged by the appellant on the claim was, “Tissue was ripped off my gum with the drill; tooth enamel was gouged out along gumline and vertically on several teeth. Some teeth lost length in mm. in front. Teeth in front shifted from base-line and have ‘moved’ into a buct (sic) position 450 angle. Disfigurement changed my profile and interfered with nasel (sic) and eye membranes.” [5] The appellant states in the claim that it was Gianni Dental Surgery that provided the treatment at issue. [6] On 16 January 2003, Dr Philippe Gianni provided a report to the Corporation regarding the treatment at issue. The report states that the appellant attended Dr Gianni’s surgery for routine dental treatment on 23 October 1987. She required 11 routine restorations and an upper wisdom tooth extraction. Dr Gianni noted that the upper left wisdom tooth extraction was routine and that no complaints followed treatment, and that the appellant made no adverse comment about her dentistry. Dr Gianni also noted that the appellant paid her account without complaint. [7] Dr Gianni noted that the appellant attended the clinic for dental work again in January 1990, in 1993 and again in 1994. Dr Gianni noted that the appellant had not attended the clinic since 1993 and, “ …at that time exhibited serious periodontal disease, poor oral hygiene and diet, has subsequently continued to deteriorate dentally.” 170-2005 2 Medical Reports [8] A report was also received from Dr Michael Chapman, orthodontist, dated 20 February 2003. Dr Chapman first saw the appellant on 23 May 2003. Following clinical examination, he determined that the appellant had: “Skeletal II Class II division I malocclusion with; (a) Anterior maxillary spacing and protrusion, mild anterior mandibular crowding (b) Previous extraction of 15 with patent extraction space (c) A high caries experience and poor oral hygiene (d) An overjet of 8mm I would tend to think that Miss Glasson’s malocclusion has a large inherent component” [9] A report was also received from Dr Sanan Najar, dental surgeon. In his report dated 28 May 2003, Dr Najar noted that he first saw the appellant on 30 August 2000. At that time, the examination x-rays showed that the appellant had generalised periodontitis, gross caries (decay) in most of her teeth, mobility in the lower anterior teeth and generalised abrasion of her teeth and erosion of the palatal surface of the upper anterior teeth. Dr Najar also noted that the appellant’s upper anterior teeth were tipped forward by an anterior overjet as a result of generalised gum recession and periodontitis. [10] The respondent then obtained a report from Dr Andrew Cautley, prosthodontist dated 25 July 2003. Dr Cautley reviewed the appellant’s dental records and summarised the treatment she had received between October 1987 and 2002. He said that in February 1993 another examination revealed much gingival recession on lower anteriors, and on the molars. Radiographs were taken and some carious lesions noted. In August 2000 radiographs revealed caries in at least six teeth and there was widespread bone loss. There was an increased overjet, which had occurred as a result of the periodontal condition. In May 2002 she sought the advice of an orthodontist, who noted amongst other things that she had Class II div 2 malocclusion, with anterior maxillary spacing and protrusion, and high caries attributed to poor oral hygiene. 170-2005 3 [11] Dr Cautley concluded as follows: “Ms Glasson has alleged that treatment she received some 16 years ago has led to her current dental condition. It would appear that at the time Ms Glasson was happy with the treatment she received, as she continued to seek treatment from Dr Gianni, albeit on an irregular basis. Clearly, Ms Glasson has a high rate of dental decay and progressive periodontal disease. The orthodontist has commented that she has poor oral hygiene, and both these diseases are largely attributable to that. In my view, there is no evidence that Dr Gianni’s treatment in any way caused Ms Glasson’s current dental problems. Consequently, I cannot find any evidence of an injury caused by treatment, and the problems, which Ms Glasson attributes to Dr Gianni’s treatment, are almost certainly due to other factors.” [12] It was after receipt of Dr Cautley’s report that the respondent issued the letter of 6 August 2003 declining the claim. [13] An application for review was completed for the appellant by her then solicitors on 15 August 2003. On 11 December 2003 the appellant’s solicitors sent an email to Dispute Resolution Services Limited advising that the solicitors were awaiting a medical report. [14] In December 2003, the appellant’s solicitors obtained a report from Dr Nigel Parr, oral and maxillofacial surgeon. In his report dated 8 December 2003, Dr Parr noted that “ …her oral hygiene was satisfactory on the day of the appointment. She has a Class II skeletal and dental relationship with an anterior open bite of 2mm vertically. She also has an overjet of 10mm. Her occlusal contacts are on the posterior teeth and premolar teeth only bilaterally. There is no anterior contact.” [15] Dr Parr concluded as follows: “Unfortunately, I am not able to support Jennifer’s claim of dental misadventure based on my findings at examination. Jennifer’s dental and occlusal abnormalities may all be easily explained as being secondary to her periodontal disease, high rate of dental restorations, and her skeletal growth.” [16] On 12 December 2003 the Appellant’s solicitors emailed the Dispute Resolution Services Limited to confirm that the medical report was not favourable and as a result the appellant would be withdrawing the review. [17] The review hearing was vacated but subsequently the appellant reinstated the review application. 170-2005 4 [18] On 20 February 2004 the review was heard and a decision was issued to the effect that the review application was lodged out of time and the reviewer had no jurisdiction to consider the matter. [19] The jurisdictional issue went to appeal. In a decision dated 10 August 2004 it was held that there were extenuating circumstances which allowed the late application to be considered. [20] The matter was referred back to review. [21] In October 2004, the Corporation asked Dr Cautley to consider further evidence provided by the appellant, which the appellant believed supported her assertion that she had suffered medical misadventure. The material provided to Dr Cautley included the report of Dr Parr. [22] In a report dated 23 October 2004, Dr Cautley noted that Dr Parr’s report does not provide any additional evidence to support the appellant’s claim; on the contrary, it lends support to the Corporation’s decision to decline the claim. Dr Cautley concluded by stating that the additional information provided to him would not lead him to change his initial assessment of the claim and he confirmed: “I have read Dr Parr’s report, and he was unable to provide any support for Ms Glasson’s claim that her dental state was the result of medical misadventure. To quote from this report, “Jennifer’s dental occlusal abnormalities may all be easily explained as being secondary to her periodontal disease, high rate of dental restorations, and her skeletal growth”. … “I would continue to be of the view that there is no evidence to support Ms Glasson’s assertion that her current dental state relates in any way to the treatment provided by Dr Gianni.” The Review Decision [23] In a decision dated 13 December 2004 the reviewer dismissed the application on the basis that the evidence did not reveal any personal injury caused by medical misadventure. [24] The reviewer concluded: “The causes of Ms Glasson’s dental condition are set out in the reports of her file. Ms Glasson’s allegations of medical error are completely unsupported by the available evidence. This finding extends to the recent claim that Dr Gianni inscribed the first three letters of his name on one of Ms Glasson’s teeth.” 170-2005 5 Legal Principles [25] It is first important to show a personal injury by accident caused by a “medical error”. The first step is to establish the personal injury and then show a causative link to a “medical error”. [26] “Medical error” is the failure of a doctor to observe a standard of care and skill reasonably to be expected in the circumstances. The legislation provides that “medical error” does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results. [27] What has to be proved is the failure of a doctor to observe a standard of care and skill reasonably expected in the circumstances. A doctor is not an insurer concerned with desired results: what must not be taken into account is hindsight reasoning that might have produced a different decision or better result. [28] It is necessary that the respondent must obtain, and have regard to independent advice from a suitably qualified person when actioning a claim. The insurer has a statutory injunct to have regard to that independent advice. Clearly, while not conclusive, the opinions of the independent doctors commissioned must be given considerable weight. [29] The statutory regime mirrors to a large extent the situation at common law. It is relevant to consider some of the principles relative to medical negligence enunciated by Courts of high authority. [30] I have had regard to the following cases: Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635; Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643; B v Medical Council (High Court, Auckland, 11/96, Elias J, 8 July 1996); and Bolitho v City and Hackney Health Authority [1998] AC 232 and from them, the following principles may be stated: (1) Where you get a situation which involves the use of some special medical skill or competence, the test as to whether there has been negligence or not is the standard of the ordinary skilled person exercising and professing to have that special skill. A person need not possess the highest expert skill; it is well-established law that it is 170-2005 6 sufficient if that person exercises the ordinary skill of any ordinary competent person exercising that particular profession. (2) In respect to the standard of care of an inexperienced doctor in Wilsher v Essex AHA [1986] 3 All ER 801, the majority of the Court of Appeal stated, in respect of a junior doctor working in a specialist unit, that the relevant standards had to be those of a “reasonably competent doctor in that position”. The proposition espoused by Mustell LJ was not challenged on appeal: [1998] AC 1074 (HL). In Djemal v Bexley HA (1995) 6 Med LR 269 it was held that the standard of care of a reasonably competent senior houseman acting as a casualty officer should be judged without any reference to the length of experience. The test to be applied was not to the individual but to the post that he occupied. (3) A person is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular art. Putting it another way around, a person is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion who would take a contrary view. (4) It is ultimately for the Court, not for medical opinion, to decide what was the standard of care required of a doctor in the circumstances of each particular case. The Court is not bound to hold that a doctor escapes liability for negligent treatment or diagnosis just because he/she leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice. However, such medical evidence is treated with great respect and the circumstances in which the court would disregard this type of the evidence would be rare. However, the evidence tendered should always be subject to critical and logical analysis. [31] The onus is on the appellant to establish that she suffered a personal injury caused by either medical error or medical mishap to a balance of probability. 170-2005 7 The Submissions of the Appellant [32] The appellant at this appeal raised an injury to her knee, but I advised her that was not my province, as I was only concerned with what had been decided by the reviewer. She produced a consultation report from Dr Longbottom, periodontist. However, this report did not throw any light on the issues concerned with this appeal. It is noted that this report showed moderate to severe periodonitis. [33] The appellant alleged that Dr Gianni had a definite “GI” engraved on the tooth. The appellant said that Dr Parr was not authorised to provide a report for the respondent’s investigations. The appellant maintained that it was difficult to obtain another medical opinion, as the doctors did not like criticising one another. She said that the doctors had contacted one another. [34] The appellant alleges that no gingivitis condition exists. She alleges that as a result of the original incident she has had an overjet of 10mm. She alleges that the tissue was ripped off her gum with the drill. As a result some teeth have lost their length and move in the front. This has caused disfigurement and a changed profile. Decision [35] The medical evidence is of the view that there is no evidence to establish that the appellant suffered a personal injury as a result of her dental treatment by Dr Gianni in 1987. Dr Cautley in his reports of 25 July 2003 and 23 October 2004 stated that the appellant’s high rate of dental decay and her periodontal disease were both largely attributed to poor oral hygiene and that there was no evidence of any injury caused by Dr Gianni’s dental treatment. The opinions of Dr Najar and Dr Chapman were to a similar effect. [36] Dr Parr, the expert for the appellant, commented upon the appellant’s extensive bone loss in her molar regions, and was of the view that her dental and occlusal abnormalities were secondary to periodontal disease, a high rate of dental restorations and skeletal growth. 170-2005 8 [37] Against this medical evidence I have only the views of the appellant. The incident complained of took place many years ago; the appellant paid her bill and apparently did not complain; and she consulted Dr Gianni after the alleged incident. [38] There is no evidence to establish that there was any medical error by Dr Gianni. None of the medical experts consulted alleged that Dr Gianni’s treatment fell below the standard of care and skill required or amounted to medical error. Nor is there any evidence that the dental treatment provided by Dr Gianni resulted in medical mishap. The appellant has not suffered a rare or severe adverse consequence of medical treatment. [39] Very much this is a case, where considerable weight has to be given to the expert evidence given. In addition, the circumstantial evidence is against this late claim. [40] For the reasons that I have given I would dismiss the appeal. There will be no order as to costs. DATED at … WELLINGTON this … 9th … day of … June ... 2005 (J. Cadenhead) District Court Judge 170-2005 9