Kirkwood v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 42 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JOANNE KIRKWOOD (Al 75/05) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 7 February 2008 APPEARANCES Mr P Sara, Counsel for Appellant. Mr H Evans, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal, broadly stated, is whether the respondent's decision of 27 February 2003, to accept the appellant's claim for cover for personal injury by medical misadventure, was correct. [2] More particularly, I find that the issue in this appeal is whether as a matter of law the facts of the appellant's claim for cover would entitle her to cover under the Act. [3] The facts relevant to the determination of this issue are not in dispute, save for a difference of opinion on the issue of rarity. The facts as I find them to be are as follows: 75.05 (pg) 2 On 9 July 1992, the appellant, then aged 24 years 7 months, underwent a caesarean section for the delivery of her fourth child. She had undergone caesarean section procedures on three earlier occasions for the birth of her first three children. In general terms, the appellant had a long and well-documented history of abdominal pain coupled with depressive illness, from time to time. Some months after her fourth caesar she began experiencing abdominal pain which has increased in intensity over the years. The appellant was seen by a number of specialists, and ultimately underwent a vaginal hysterectomy on 9 May 2001. The appellant's abdominal pain persisted and on 28 August 2002 she lodged a claim for cover for neuropathic pain following caesarean section on 9 July 1992. The respondent's Medical Misadventure Unit investigated the claim and obtained reports both from the appellant's treating health professionals and from independent specialists. Consequent upon the advice which the respondent received from its Medical Misadventure Unit, it issued its decision on 27 February 2003, declining a claim for cover. That decision recited the grounds given in the Medical Misadventure Report. The grounds given for declinationere firstly that no physical injury had occurred as a result of medical treatment and secondly, and separately, that the neuropathic pain did not satisfy the rarity criteria in that this type of pain could be expected in more than 1% of cases. . The appellant sought a review of that decision and introduced a report from Dr Barrie Tait, Consultant Physician, on the question of rarity. . In a decision dated 10 January 2005, the Reviewer, Mr Greene, confirmed the respondent's primary decision. 4] The issue of medical error does not arise, and the appellant's claim was lodged on the basis that she had suffered medical mishap arising out of her caesarean section operation of July 1992. [5] The relevant medical evidence in relation to the claim I note to be as follows: 75.05 (pg) 3 1. Letter from Associate Professor W R Gillett, dated 8 August 2002, to Dr A Fyfe. Dr Fyfe, the appellant's GP, had referred the appellant to Mr Gillett, Associate Professor in Obstetrics and Gynaecology at Otago University, for his opinion as to a diagnosis of her problems. He examined the appellant and reported, inter alia, as follows: "Thank you for referring Joanne, whom I saw today. As you know, Joanne has had a 10 year history of troublesome lower abdominal pain, which has not responded to conventional treatments and hysterectomy. The onset of the history is fairly clear cut, following the caesarean section that she had about 10 years ago. She experiences recurrent episodes of midline crampy abdominal pain, as though someone is trying to pull things down into her "private parts". She also has other abdominal pain, in th e lateral margins, she experiences, what she calls "kidney pain" and then very sensitive areas as well. All these episodes tend to be spontaneous events, often exacerbated by movements, bowel movements, micturition, standing, stretching and also, (when she was having periods), exacerbated by menstruation. All these features are very characteristic of neuropathic pain and I was able to confirm this by the significant sensory abnormalities, which involved the genito femoral nerves on both sides. She has quite significant increased discomfort with light touch (allodynia), a marked increased sensation with sharp touch (hyperalgesia), but a marked reduction in sensation to hot and cold temperature. I was able to find two focal points of specific tenderness on each side, which are probably neuroma sites." 2. Letter from Dr Fyfe to Medical Misadventure Unit dated 26 September 2002. This was Dr Fyfe's report following the lodging of the claim for cover. She gave a background of the appellant's suffering abdominal pain since her caesarean section in 1992. She gave details of efforts to diagnose exactly what the problem was. She then stated as follows: "I was worried enough to refer her to Dunedin Hospital on the 8" of January (copy of referral letter enclosed) and this eventually led to her being seen by Mr Wayne Gillett. He was the first of all the doctors she had seen about this problem to suggest the diagnosis of Neuropathic pain, which results after nerves which have been cut at the time of surgery regenerate and start sending pain signals to the brain. As I understand it, Neuropathic pain is a rare consequence of "normal" uncomplicated surgery, and usually presents some months after the procedure, so that the diagnosis is difficult, especially as this has until now been a problem not well understood or even talked about by the medical profession. . . . 75.05 (pg) I agree that she suffered a medical misadventure in that she had a rare complication of Caesarian Section (ie Neuropathic pain). I also agree that it has taken a very long time for this diagnosis to be made in spite of many investigations. I would like to point that that only because her pain was taken seriously, in spite of the lack of a clear explanation for it, was the diagnosis eventually made." 3. Letter from Associate Professor Gillett dated 31 October 2002 to Medical Misadventure Unit. Professor Gillett confirmed his diagnosis of Neuropathic pain and went on to state as follows: "Neuropathic pain has been, traditionally, very difficult to diagnose. It is mainly because it is not at the forefront of practitioner's minds when examining chronic pain states. It is only in recent years that the pathophysiology of these difficult conditions have become known and recognisably with most cases being managed by pain services. As a result individual practitioners have not considered the diagnosis, and I must say it is still not well written about. It has become obvious to me that many of our traditional causes for chronic pain states have an underlying nerve pathophysiology and will explain why many traditional therapies are not effective Neuropathic pain is a condition which describes the effect from damaged nerve fibres. When nerve fibres try to repair themselves they produce hypersensitive endings in the damaged sites. These discharge spontaneously (like ectopic beats in cardiac dysrhythmias) often repeatedly, or respond abnormally to low threshold stimuli from movement or touch. Neuropathic pain is well described from surgical incisions from anywhere in the body, or from injury or from the effect of viral illness (e.g. herpes). What further complicates the diagnosis and management of this condition is how it is modified by an individual's psychological and social environment. This has been well described by the "biopsychosocial model." In the wider context it also relates to the suffering that the individual experiences (like the loss of sexual relationships, or about letting people down or having time off work) or pain behaviour (how an individual reacts to pain, whether that individual dividual can or cannot cope, what analgesia is needed and how quickly help is obtained from the doctors, etc.). . . . It is my observation from managing many cases in the Dunedin setting, that this specific diagnosis of neuropathic pain has not been made in well over 80% of cases referred to me. As to its incidence, following operations like caesarean sections, I do not have exact prevalence data but I would estimate that it significantly complicates at least one to two percent of all abdominal operations that we do." 4. Report from Dr Paul Dempsey, Obstetrician and Gynaecologist, dated 23 November 2002 to Medical Misadventure Unit. Or Dempsey was asked to give his independent opinion on the claim and he was provided with all medical reports for that purpose, including the reports from Associate Professor Gillett. His assessment of the claim is stated as follows: 75.05 (pg) 5 "The injury claimed is of neuropathic pain following her fourth Caesarean section. Unfortunately I have no medical notes prior to 1992 - the time of the Caesarean - so I know nothing of Mrs Kirkwood's mental state or symptoms prior to this. There seems general agreement that her pains came on at some time after the Caesarean in question but I must say that, particularly from the GP's notes, complaints of abdominal and pelvic pain are extremely intermittent in the several years following the Caesarean and other somatic symptoms predominate. There are a lot of inconsistencies in this case. Mrs Kirkwood was referred to several Gynaecologists, Surgeons, and a Rheumatologist and it is quite notable that chronic abdominal pain was not always the symptom for which she was referred. There is clear evidence in the medical notes that she had a major depressive illness - and it is not suggested by the doctors that this was as a result of chronic pain. Mrs Kirkwood herself in her report mentions multiple symptoms other than her abdominal pain, e.g., irritable bowel, headaches, cramps, nausea, exhaustion, memory loss and it does not seem to me that these are features of neuropathic pain following surgery. It also seems unusual that she had six months of complete remission of her pain following the hysterectomy. This was performed vaginally and did not involve any Interference with the Pfannenstiel scar or surrounding nerves. Both Professor Gillett and Mrs Kirkwood's GP, Or Annie Fyfe, seem to support Joanne's claim for medical misadventure however I personally have doubts that she fulfills the criteria for either rarity (Professor Gillett estimates that 1-2% of patients have this condition after abdominal surgery) or severity in that chronic abdominal pain has not been a constant feature in her symptomatology. Personally I do not think this claim meets the criteria for medical error or medical mishap but I feel a further opinion from an independent Pain Specialist may well be justified." 5. Report from Mr William Wallis, Neurologist, dated 20 February 2003, to Medical Misadventure Unit. In furtherance of Mr Dempsey's opinion a report from Mr Wallis, Neurologist, was obtained. He reviewed the history and noted the reports. In answer to the question posed - "Has a physical injury occurred as a result of medical treatment?" he stated as follows: "No. Although this patient may very well have neuropathic pain, it is clearly not the cause of the multiple problems she has had over so many years. It is also clearly not the cause of her previous tendency towards painful conditions, including chronic abdominal pain. Whatever contribution neuropathic pain is playing in this picture, as pointed out by Associate Professor Gillett, cannot be considered in isolation. It is simply a detail in a long history of multiple medical and psychological problems this patient has suffered. To blame them on the caesarean section would be inappropriate and would fail entirely to take an overall view of what has been going on medically for so many years." In answer to the question ". . .does the claim meet the criteria for medical mishap?" he stated: 75.05 (pg) 6 No. In the first instance, neuropathic pain, as noted above, does not explain the overall picture this patient presents with or is complaining about. In the second instance, Professor Gillett, in describing the frequency of this type of pain in the patients he sees with abdominal surgery, says that it occurs in 1% or 2% of patients, not 1% or less Although this patient has undoubtedly had an enormous amount of disability, which might meet the criterion for severity required by the ACC for the definition of mishap, the disability can clearly not be attributed to neuropathic pain alone. Mr Wallis summarised his position as follows: 'This patient was prone to painful conditions, including abdominal pain, well before she had a caesarean section in 1992. She has attributed a long list of problems to the operation in 1992, but it is clear that she was subject to shifting and chronic abdominal pains, pains in other parts of the body, and migraine, well before the surgery. Although there may be some features of the pain which might fulfil the definition of neuropathic pain attributable to prior surgery, it is abundantly clear that neuropathic pain cannot account for this patient's disability and the majority of the problems she has suffered over so many years. I doubt whether a response to Epilim and other procedures, as may be occurring now, will in any way alter how one sees the total clinical picture in this patient. It is unlikely that further neurological investigations will be of any help. / recommend that the claim be declined." 6. Letter from Dr Barrie Tait, Consultant Physician, dated 13 December 2004 to Mr Sara. Dr Tait advised of his discussion with Professor Shipton, Professor of Anaesthetics and an author of many articles in the field of pain medicine. He advised that Professor Shipton was not aware of any study that specifically addressed the query raised and that a literature search did not bring up any study. He then stated: "The implication of this is that presenting pain following caesarean section lasting many years is a rare clinical phenomenon in that it is certainly very seldom seen and as a problem has not generated any specific literature." 7. Letter from Dr Barrie Tait dated 25 June 2007 to Mr Sara. Mr Sara asked Dr Tait three questions. Those questions and his answers are as follows: Q Does neuropathic pain result from injury? In this case caesarean section: A The medical literature confirms that neuropathic pain can result from injury and that an example of this surgical trauma such as a caesarean section. Q Is there a probable causal connection between her surgery and this pain condition? (whether or not there are other causes or contributors or predisposers). 75.05 (pg) 7 A In my opinion, based on the review of the literature and the information provided about Mrs Kirkwood, there is probably a causal connection between her surgery for caesarean section and neuropathic pain, Q Is the incidence of rarity 1% or less for her condition, recalling that the rarity is not neuropathic pain simply but of the duration that she has had it and will have it, i.e., the longevity of the condition is also something to be included in the rarity equation: A in my opinion, having reviewed the medical literature, the incidence of neuropathic pain following caesarean section is less than 1%. In Mrs Kirkwood's case the pain problem will, in all probability, be ongoing It should be noted that Dr Tait advised that, in giving his opinion, he had consulted medical literature including 'Wall and Melzack's Text Book of Pain', 5" Edition, 2006. (6] Mr Sara, for the appellant, submitted that Associate Professor Gillett, was the expert who considered the question of personal injury, and he referred to the passages reproduced above, in which Professor Gillett referred to 'damaged nerve fibres'. [7] Mr Sara further submitted that Mr Wallis had not answered the correct question, which was not in relation to pain and multiple other problems, but rather whether the neuropathic pain from the caesarean section operation was a condition which would fulfil the statutory requirements. [8] Insofar as the rarity and severity criteria were concerned, Mr Sara said that the bar should not be set too high and provided there was a significant disability which is an ongoing condition from treatment then the test is satisfied. Mr Sara submitted that the inference that can be drawn from Dr Tait's report would show that Professor Gillett was possibly a little high in that the incidence could in fact be less than 1%. He submitted that Dr Tait's opinion should be preferred. 9] Mr Evans, for the respondent, submitted that no personal injury had been established, and neither the rarity nor the severity criteria could be satisfied. He submitted that Professor Gillett's advice that at least "1-2%" must take the incidence outside the statutory criteria. Further he submitted that the evidence was that the appellant's condition was only intermittent or occasional, these words being used by some of the specialists who had been involved with her treatment, and therefore the severity factor could not be established. 75.05 (pg) 8 DECISION [10] The appellant sought cover for neuropathic pain said to have been caused as a consequence of her caesarean section operation carried out in July 1992. [11] The appellant does not contend that there was anything untoward in the manner in which that caesarean operation was carried out and no element of medical error arises. Accordingly, her claim falls to be considered under the provisions of Sections 32 and 34 of the 2001 Act. (12] In this case, the appellant lodged her claim for cover after the commencement of the Injury Prevention, Rehabilitation & Compensation Act 2001, but was seeking cover in respect of an injury said to have occurred prior to the commencement of that Act. In those circumstances the transitional provision of Section 360 of the 2001 Act applies, and essentially it states that for a person in the appellant's position to have pain cover she must establish that she has an entitlement to same, both by virtue of the provisions of the Act in force at the time she suffered the injury, in this case the 1992 Act, and the 2001 Act. It so happens that the Medical Misadventure provisions of the two Acts are identical in their intent and meaning and I simply propose to refer to the provisions of the 2001 Act in those circumstances. [13] Section 32 provides for the granting of cover for a person who suffers personal injury caused by medical misadventure, that is, an injury suffered by a person seeking or receiving treatment given at the direction of a registered health professional and is caused by medical mishap. 14] Medical mishap is defined in Section 34 as meaning an adverse consequence of treatment properly given and where the adverse consequence suffered is both rare and severe. Section 34(2) defines the adverse consequence as severe if it results in the person - a) dying, or (b) being hospitalised as an in-patient for more than 14 days; or (c) suffering a restriction or lack of ability that - (i) is significant, and 75.05 (pg) 9 ii) prevents the person from performing an activity in the manner or within the range considered normal for the person; and (ifi) lasts more than 28 days in total. Rare is defined as being "the likelihood that treatment of the kind that was given would have the adverse consequence only if the probability is that the adverse consequence would not occur in more than 1% of cases in which that treatment is given." [15] Whilst the appellant's claim for cover was said to be for neuropathic pain caused from her caesarean section operation, it is the case that she is contending that the neuropathic pain has in fact arisen from a physical injury, being damaged nerves. [16] The only proper exposition of the nature of the appellant's injury or condition is that provided by Professor Gillett which I have set out earlier in this Judgment. In essence he is saying that the operation required the severing of nerves, but these were damaged and did not repair properly as would normally be expected and which is normally the case. He is quite clear when he says that the appellant's neuropathic pain arises from 'damaged nerve fibres'. [17] That being the contended physical injury, I find that damage to nerves is indeed a physical injury and any medical dictionary will reveal this as being the case, but for the sake of completeness, I identify that I have consulted Black's Medical Dictionary, 37th Edition, under the heading 'Nerves'. In that definition it is stated that nerves vary much in size from the largest being the sciatic nerve, having the thickness of a pencil, down to the minute single fibres distributed to muscle fibres or skin. [18] In addition to that definition, I note that it has often been the case that this Court has determined that damage to nerves, more particularly the sciatic nerve, by impingement or otherwise, constitutes a physical injury. 19] I therefore find and rule that the appellant has suffered a physical injury consequent upon the treatment properly given to her by way of the caesarean section operation in July 1992. I further find that the appellant has continued to suffer from neuropathic pain which has been caused by those damaged nerves, in addition to other conditions from other separate and distinct causes, on a continuous but not 75.05 (pg) 10 continual basis, down to the present time, or at least down to the date when cover was sought. [20] On the question of severity, I find that the evidence of her GP, Dr Fyfe, that of Professor Gillett and the specialists to whom she was referred by Dr Fyfe, including Mr Yu, Obstetrician and Gynaecologist, and Mr Hughes, Obstetrician and Gynaecologist, all of whom refer to prolonged periods of pain, albeit not unceasingly, satisfies the requirements of s.34(2)(c). (21] Turning now to the criteria of rarity. The two specialists who have considered this factor are Professor Gillett and Dr Tait, the latter more so acting on the advice of Professor Shipton. [22] The Court is not aware of what may have been the Chief Medical Officer of Dunedin Hospital's request to Professor Shipton for a report on the appellant's claim for medical misadventure. The Court understands that in terms of protocol the Medical Misadventure Unit would have written to the Chief Medical Officer requesting that the particular treating specialist provide a report. It is to be remembered that Professor Gillett was a treating specialist, he having had the appellant referred to him by Dr Fyfe, both for assessment of her condition and advice as to treatment, and his report to Dr Fyfe of 8 August 2002 is a direct response to that. [23] It is to be regretted that Professor Gillett was not asked to consider the applicability of the particular statutory criteria. As I apprehend his advice, he is simply commenting on the fact that in the Dunedin setting this particular problem is overlooked in the majority of cases. He does not purport to have made a study but simply gives an estimate of neuropathic pain from damaged nerve fibres arising from "operations like caesarean sections" as being a complication in at least 1%-2% of "all abdominal operations that we do." (24] I do not take his statement to be sufficiently specific in terms of the statutory criteria to exclude the incidence of long-term neuropathic pain arising from caesarean section. It must not be overlooked that this was the appellant's fourth such operation in a comparatively short time span. [25] Dr Tait, on the other hand, on two occasions has given advice both of his research and that of Professor Shipton, to the effect that there has been no research 75.05 (pg) 11 done in this field. But Dr Tait's take on this is that because it is a rare clinical phenomenon it is a problem that has not generated any specific literature. [26] It is the case that the respondent, when it made its decision, and the Reviewer subsequently, seized upon Professor Gillett's statement and simply ruled the appellant out as not coming within the less than 1% category. As I have noted, I do not consider that Professor Gillett's evidence is sufficiently specific in relation to the statutory criteria and is indeed only an estimate and seems to encompass a wider field than that which the statute would require, namely that it is an adverse consequence that would not occur in more than 1% of cases in which that treatment was given. [27] The words 'that treatment' must of course refer to the caesarean section operation and not to all abdominal operations. [28] This appeal requires the Court to interpret the particular statutory criteria of rarity and it has been entreated to do so in a "generous and unniggardly fashion" by the Court of Appeal, which has referred to that phrase in a number of its decisions in relation to Accident Compensation Legislation. [29] In the present case, I find that simply adopting Professor Gillett's words in reference to the statute would be too simplistic, and that if one adds the opinion of Dr Tait, given as it is in considerable measure after discussion with Professor Shipton, I am prepared to find and rule that the incidence of neuropathic pain arising from damaged nerve fibres caused by the failure of those fibres to repair correctly after a caesarean section, and which continues as a severe condition thereafter, is likely to occur in less than 1% of cases of such caesarean section operations. [30] Accordingly, then, I find that the appellant does satisfy the statutory criteria for the granting of cover for her neuropathic pain. It must be emphasised that this cover is for that pain caused by the damaged and unrepaired nerve fibres at the site of the operation, and only pain directly attributable to that site can be covered. [31] The Court is aware that the appellant has displayed a significant number of medical problems and some of these had their origins prior to any caesarean operations. These conditions are not covered. 75.05 (pg) 12 [32] The appellant, being successful, I allow costs of $2,500, together with qualifying disbursements. DATED at AUCKLAND this 2 7 day of February 2008 M J Beattie District Court Judge 75.05 (pg)