Richards v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 212/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOHN WILLIAM RICHARDS of Ngatea Appellant (Appeal No. DCA 338/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and his wife and from Mr A D Barnett, counsel for the respondent with the request that I issue a decision on the papers. The appellant has appealed against the decision of the Review Officer who found that the appellant had not suffered a medical misadventure arising from dental treatment and an alleged subsequent failure by his doctor to diagnose his alleged problems. The appellant had lodged a claim for cover with the respondent in December 1995 in which he stated that he suffered a "chronic fatigue, muscle pains, irritability, memory loss for 2 years." The claim was supported by Dr M E Godfrey whose opinion was that the appellant had suffered medical misadventure arising out of the effects of mercury toxicity from amalgam dental fillings which was the result of dental misadventure. He considered also that the appellant had suffered medical misadventure based on the failure of his General Practitioner to properly diagnose his problem and thereafter by providing inappropriate medical treatment. In a statement to the respondent, the appellant noted that as his physical symptoms became more intense over the years, he had consulted his General Practitioner, Dr A Smit. The appellant stated that Dr Smit had been his family doctor for some years and after explaining his symptoms to him, blood and urine tests were taken and disclosed nothing abnormal. He said that he struggled on with continuing problems and a general breaking down of his physical body and immune system. He said that simple scratches became infected with the result that on one occasion was hospitalised with septicemia but the situation did not improve. He said that he then took it upon himself to consult Dr Godfrey whose tests indicated mercury toxicity as a result of his amalgam fillings. The appellant said that when this information was given to Dr Smit, who considered the results to be doubtful. The appellant was then prescribed anti-depressants and although Dr Smit undertook tests for mercury poisoning, these were negative. He was then referred to a psychiatrist, again without result. The appellant said that after he stopped taking anti-depressants and the amalgam was removed from his teeth, his condition began to improve and the symptoms decreased significantly. The respondent referred the claim to its Medical Misadventure Advisory Committee as it is required to do. In its discussion, the Committee noted the following: "This claim is for chronic mercury toxicity from amalgam fillings. The committee has read the information before us and we also note the very full and careful report from Dr M E Godfrey from Bay of Plenty Environmental Health Clinic. The committee has carefully considered the information and we note there is controversy over the nature of amalgam fillings. However, the committee has been guided by the expert opinion from the New Zealand Dental Association and its policy on amalgam fillings, and the committee is not satisfied that Mr Richards health problems are causally related to chronic exposure to mercury vapour. We note that the Unit has a particular terminology in dealing with these mercury toxicity claims, and also advises the claimant of the right of review. Accordingly, our recommendation that the claim be declined to become final after 15 working days." As a result of the finding of the Committee, the respondent notified the appellant on 14 May 1996 that his application for cover was declined. The appellant applied for a review on that decision. At the review hearing, the appellant and his wife were present and submitted the correspondence which had been provided by Dr Godfrey. The Review Officer noted the finding of the Medical Misadventure Advisory Committee and the decisions of the Appeal Authority in Mawson (161/96), Watts (174/94), Hudson (175/96), Car (63/95), Miller (352/95) and Patterson (61/95). In all of those decisions Dr Godfrey had either provided reports or had given evidence which was not accepted by the Authority because the medical and dental bodies in New Zealand did not accept that there is a causal link between amalgam fillings and mercury poisoning. The Review Officer declined the application and it is against that decision which the appellant now appeals. Mrs Richards has provided a submission which details the evidence which gave rise to the consultation with Dr Godfrey. She has noted that she has been the appellant's partner for some 15 years and is a student of natural medicine. She has submitted that the standard of care given to the appellant both in the treatment by way of amalgam fillings and his subsequent care by Dr Smit were inappropriate. She has submitted a copy of Dr Godfrey's report which had previously been considered by the respondent and the Medical Misadventure Advisory Committee. She has also submitted various extracts from scientific journals supporting the theory that there is a link between amalgam fillings and mercury toxicity. She submitted that Dr Smit used an inappropriate mercury urine test and failed to use the appropriate test to check the appellant's condition. She submitted further that it is noteworthy that the appellant's condition had improved since the amalgam had been removed from his teeth. In addition, she submitted a report from Professor F L Lorscheider of the University of Calgary. He had received a report from Dr Godfrey and wrote to Dr Godfrey on 5 September 1996 in which he stated: "Based upon the case history which you provided on Mr. John Richards, I would conclude that the signs and symptoms with which he presented are consistent with classic mercury toxicity." Mrs Richards submitted further that while the respondent has taken the view that there is no scientific evidence to validate the appellant's claims, the respondent has itself not produced any scientific evidence to validate its decision. Mr Barnett submitted that Dr Godfrey's evidence and opinion has been heard in a number of cases by the Accident Compensation Appeal Authority to which the Review Officer had already referred. He submitted that the opinion now advanced by Dr Godfrey and the literature upon which he relies is the same as was traversed in the earlier decisions in all of which it had been established that there was no causal association between the amalgam fillings and the claim of mercury toxicity problems. Mr Barnett submitted that little weight can be placed on the opinion of Professor Lorscheider who did not examine the appellant so that his opinion cannot be accepted as proof that mercury exposure was the cause of the appellant's alleged problems. Moreover, Professor Lorscheider's reliance on the fact that remission of symptoms following the removal of amalgam fillings is something the Appeal Authority has rejected on the basis of an opinion given by Dr Ghose which is referred in some of the earlier Appeal Authority decisions. Mr Barnett submitted further that as this is the first appeal of this nature under the Accident Rehabilitation and Compensation Insurance Act 1992, the definition of medical misadventure is much more restricted than the meaning ascribed to it under the 1982 Act. In particular, he referred to section 5(7) which provides: "Medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent." He submitted that the issue of negligence entails a significantly higher threshold than was the case under the 1982 Act. He submitted that medical negligence entails proof of a breach of standard of the care that would be accepted by a responsible body of medical opinion at the time the treatment was provided and in support of this submission, referred to the statement by Lord Scarman in Hunter v Hanley (1995) SLT 213 at page 217: "In the realm of diagnosis in treatment there is ample scope for genuine difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of other professional men ... The true test to establishing negligence and diagnosis of treatment on the part of a doctor is whether has been proved to be guilty of if acting without ordinary care." Mr Barnett submitted that the claimed association between amalgam fillings and illness is controversial and if there were evidence to establish a causal association the time has not yet arrived where it could be said that the alleged failure to make the diagnosis was a failure that no doctor of ordinary skill would make. Mr Barnett raised the further issue that even if causation were established, it would be necessary for the appellant to prove that there was a medical misadventure associated with his dental treatment. He submitted that the dental treatment alleged to be the cause of the problem was the amalgam fillings which over a period of years are alleged to have caused the symptoms. Again reference must be had to the provisions of the 1992 Act in which section 5(5) provides: "Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless medical error or medical mishap occurred at the time of the procedure." Mr Barnett submitted that at the time the treatment was undertaken, the process was and still is considered to be normal by New Zealand Dental standards. As Mr Barnett has submitted, Dr Godfrey has provided the same information as he has done in the previous appeals, to which reference has been made. Furthermore, reference has been made to various articles and publications which indicate some support by the authors towards the stand adopted by Dr Godfrey. It is however noteworthy that in the "Health Canada" article dated 20 August 1996, submitted by the appellant, it is stated: "Considerations: *Although dental amalgam is the largest source of mercury exposure for average Canadians, current evidence does not indicate that dental amalgam is causing illness in the general population. However, there is a small percentage of the population which is hypersensitive to mercury and can suffer severe health effects even at a low exposure. * A total ban on amalgam is not considered justified. Neither is the removal of sound amalgam fillings in patients who have no indication of adverse effects attributable to mercury exposure." In the decision in Mawson, the Appeal Authority cited with approval the findings of the Authority in Watts and Hudson where Mr Blackwood said: "I accept that there is some evidence that mercury vapour may be released from amalgam fillings in minute quantities and may be absorbed by inhalation into the body. The body, however, receives mercury from various sources and excretes it, so the possible inhalation or absorption of mercury from amalgam can itself be of only slight evidentary (sic) value as a causation factor in mercury poisoning in the absence of other scientific proof of causation." Similar propositions had been put to me in the appeal by Miller when I noted: "I have not overlooked the fact that following extraction of her teeth and treatment by Dr Godfrey, immediate and dramatic improvements were noted in Mrs Watts' health. Dr Godfrey believes that these improvements confirm his presumptive diagnosis ... Dr Ghose was firmly of the view that the victims of chronic mercury poisoning do not show such rapid improvement when the contact with the mercury is removed. It may wll (sic) be that the placebo effect had some bearing on that improvement." "I have since received a large volume of reports which confirm the evidence already referred to by Mr Blackwood in Watts and Hudson, decisions to which I need not further refer. However, it seems clear that the dental profession in America and New Zealand have no problem regarding the safety of mercury amalgam fillings and it is still in use in both countries." The Authority in Mawson appeal concluded: "The weight of medical evidence in this area has not altered since the decisions in Hudson and Watts. In particular there does not seem to be any new evidence which would persuade the Appeal Authority to move from its finding in Watts that there "simply no scientific evidence that dental amalgam is harmful to the human body."" The situation in New Zealand is that the medical and dental specialists do not accept that there is a causal link between amalgam fillings and mercury toxicity and it was therefore on the basis of that opinion that the Medical Misadventure Advisory Committee advised the respondent to decline the application. It is for the same reason that the Appeal Authority declined the various appeals to which reference has already been made. While it is recognised that Dr Godfrey has taken a particular interest in this field and has produced various articles in support of his submissions they are not accepted by the specialists in New Zealand. Further, by reference to the "Health Canada" statement, it cannot be said that there is a complete ban on the use of amalgam in that country. I therefore cannot accept the appellant's submission because there is sufficient medical evidence to support his claim. The other issue which must be considered is whether Dr Smit failed to properly diagnose that the chronic fatigue claimed by the appellant was caused by dental amalgam. As I have already found that there is no medical evidence to establish a causal occasion between the amalgam fillings and the chronic fatigue, it must follow that the claim for medical misadventure against Dr Smit must also fail. As Mr Barnett submitted the standard of proof now required to establish medical misadventure by way of a failure to correctly diagnose a medical condition must establish that the failure was negligent. There is simply no evidence to establish that Dr Smit was in any way negligent because as I have already found, there is no causal connection established between the amalgam fillings and the appellant's alleged problems. As to the claim for medical misadventure arising out of the appellant's dental treatment, it again must be shown that the dental treatment by way of amalgam fillings was the cause of the appellant's problems. All the medical evidence, even on the basis of the "Health Canada" statement, does not indicate that amalgam fillings should not be used. Certainly at the time when they were supplied to the appellant there is no evidence that the dentist concerned failed to observe an appropriate standard of care and skill in the circumstances. The use of amalgam fillings at that time and even at this time is still an acceptable dental practice and accordingly the claim that the procedure involved medical misadventure must fail. The appeal is dismissed. DATED at WELLINGTON this 29th day of OCTOBER 1997 A W Middleton District Court Judge dc338-96.doc (nr)