Young v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 186 /98 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 JOSEPH DAVID YOUNG as representative of THELMA ISOBEL YOUNG (Deceased) DCA 7/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of August 1998 APPEARANCES: Mr JD Young in person Mr JD Palmer Counsel for respondent RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether Thelma Isobel Young suffered personal injury by medical misadventure, being medical error. 2 BACKGROUND In September 1995 Thelma Isobel Young (the deceased), then aged 51 years, was admitted to Waikato Hospital for surgery as she had presented with rapidly developing ascites (an accumulation of fluid in the abdomen). A C.T. scan had shown a cystic mass in the pelvis and on 5 September 1995 Mr David Kitchen performed surgery for what was believed to be an ovarian primary tumour. Certain surgery was carried out by Mr Kitchen but a tumour on the left ovary was also identified during surgery and which was described as necrotic in nature. It was not considered appropriate to remove that tumour because of the condition of the patient. It was intended to address it at a later time. Mr Kitchen forwarded specimens of the tumour and ovarian mass to Dr D Bruton, Pathologist, for diagnosis. By a report dated 12 September 1995 Dr Bruton diagnosed "yolk-sac tumour left ovary, with probable neoplastic involvement of the serosal surface of the appendix". With the diagnosis of yolk-sac tumour the recommendation to the patient was to commence Cisplatin based chemotherapy with curative intent. Yolk-sac tumour is a highly curable tumour and Dr Kennedy, Oncologist, to whom the deceased had been referred, considered it unnecessary to attempt resection of the residual malignancy. Chemotherapy was commenced on 26 September but on 17 October 1995 advice was received from the Pathology Department at Auckland Hospital regarding the histology of this tumour. Dr J Baranyai, Histopathologist at Greenlane Hospital, had carried out further tests on the specimens taken from the deceased and her diagnosis 3 was that it was an undifferentiated malignant tumour, possibly malignant mixed mullerian tumour. This particular cancerous tumour was not one where it was appropriate to persist with chemotherapy and it required a further operation. The deceased underwent a further operation on 24 November 1995. This consisted of laparotomy, anterior resection of the rectosigmoid, hysterectomy, and resection of small bowel in caecum together with tumour exenteration. A radical resection of the tumour was carried out with the removal of all visible tumour. Histology of the repeat resection was recorded as showing a metastatic ovarian tumour within loops of the bowel. The exact designation of the tumour was uncertain. Tissue from the initial and repeat resection was then referred to Professor P Russell, Royal Prince Alfred Hospital, Sydney. His diagnosis was that it was a poorly differentiated epithelial malignancy in the peritoneum and ovary. A diagnosis of poorly differential epithelial ovarian malignancy would normally mandate Cisplatin based chemotherapy similar, although not identical, to the chemotherapy that the patient had initially received. However, there had been a significant increase in tumour bulk between the first and second operation and it was clear that further Cisplatin based chemotherapy would not be effective. Surveillance alone was recommended at that point. "By January 1996 it had become clear that the patient had developed a recurrence with a pulpable mass in relation to her stoma. This was treated with radiotherapy. A further recurrence was noted in late January and the malignancy spread rapidly and the deceased died on 17 March 1996. 4 It is the contention of the appellant that the mis-diagnosis by Dr Bruton on 12 September 1995 and the consequent initiation of chemotherapy treatment based on that diagnosis constituted medical error. It had the affect of having the deceased undergo inappropriate treatment for six weeks before the misdiagnosis was detected and thereafter appropriate treatment initiated. The deceased husband lodged a claim for medical misadventure and, as is required under the Act, that claim was referred to a Medical Misadventure Advisory Committee. For the purposes of its report the MMAC sought a report from Dr Bruton and also from Dr Ian Kennedy, Oncologist of the Waikato Hospital Regional Cancer Centre. After considering those reports and also obtaining its own specialist pathology advice, the committee reported to the appellant's husband, representing his deceased wife's estate, as follows: "A misdiagnosis of a yolk sac tumour was made following a histological examination by Dr Bruton on 12 September 1995 and Mrs Young's cancer was managed on the basis of this diagnosis. However it became apparent that she was not responding to the chemotherapy and as the alpha feto-protein levels in her blood continued to be negative, the slides were reviewed. A further diagnosis, this time of undifferentiated malignant tumour possibly malignant mixed mullerian tumour was made. On the basis of the received diagnosis, surgery was undertaken and all residual tumour was removed. However, Mrs Young's cancer recurred and she died on 17 March 1996. The Committee examined this claim on the basis of error as it is one of alleged negligent failure to diagnose. It is clear from the original histology that aspects of the slide were consistent with the yolk sac tumour diagnosis and 5 indeed when the revision histology was undertaken, the second pathologist, Dr Marshall, stated that he had found favour with the original diagnosis of yolk sac tumour although he in fact made a different diagnosis. He was however aware of the intervening events. The specialist pathologist advisor to the committee has carefully examined all the pathological opinions with respect to the diagnosis of the tumour and it is clear that there was difficulty in reaching a consensus diagnosis amongst the pathologists who viewed the slide, indeed there was no consensus diagnosis. It is noted that two of the pathologists were nationally recognised experts. In reviewing Dr Bruton's diagnosis of the yolk sac tumour, it is accepted that where a yolk sac tumour is present, the serum alpha feto-protein level will almost invariably be elevated. It is noted that this a useful adjunct to the histopathologist making the diagnosis. This information however was not available to Dr Bruton at the time. It is also noted that the mean age of occurrence of yolk sac tumours is reported to be about 19 years. It is unusual in patients older than 40 years but there have been reported cases. Age does not necessarily exclude this diagnosis. The Committee accepts that there is considerable disagreement with respect to the actual diagnosis of the tumour. There is also some contention as to whether Mrs Young suffered a personal injury as it is clear that Mrs Young had a highly aggressive malignancy which progressed rapidly despite all modes of treatment. It is noted that following the diagnosis of a possible malignant mixed mullerian tumour, Mrs Young underwent ressection of the residual tumour on 24 November. All visible traces of tumour were removed at that time. However by January, just over a month later, Mrs Young had already developed recurrence of a palpable mass. 6 It is not clear whether Mrs Young suffered a personal injury in that it is clear that therer was little response to chemotherapy, radiotherapy or surgery and it can be hypothesised that even if the correct diagnosis had been made initially, that it would not have made any difference to the outcome. For Medical Misadventure to include the failure to diagnosis correctly, that failure must be negligent. Noting the difficulties, that have surrounded the histopathology and the lack of consensus amongst several pathologists with respect to the diagnosis, the Committee is not satisfied that the failure to correctly diagnose the poorly differentiated epithelial malignancy? carcinoma sarcoma in September 1995 that Dr Bruton was negligent. As there is insufficient evidence to find that Dr Bruton was negligent in his failure to diagnose, the Committee's recommendation is that this claim be declined." Mr Young was given the opportunity of commenting on that report. The MMAC considered that no new relevant information had been received that challenged its finding and therefore its finding was confirmed and advice given of same on 4 June 1997. Mr Young sought a review of that decision. In his decision the Review Officer stated that based on the medical evidence available, and the opinion of Dr K R Anderson the Specialist Pathologist Advisor to the Committee, a case of negligence against Dr Bruton could not be made out. The Review Officer went on to note that even if negligence had been established, it was questionable whether the deceased had suffered a personal injury. It would require the appellant to establish that the failure to correctly diagnose the tumour had contributed directly to the deceased's death. Both Mr Anderson and Dr Kennedy had expressed the view that the tumour the 7 deceased suffered from was probably intrinsically incurable and that death would have resulted in any event. RELEVANT STATUTORY PROVISIONS Section 8(2)(c) states: "That cover under the Act shall extend to personal injury which is medical misadventure as defined in section 5 of the Act. This appeal is concerned with medical error which is defined in section 5 as "meaning the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results." Subsection 7 states: "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." The essence of the appellant's submissions to this Court were that because Or Bruton could only identify five of the six factors which pointed to yolk- sac tumour that therefore his diagnosis was inconclusive and that he ought to have referred the specimens to another pathologist for a second opinion before reporting to the deceased's treating specialist. It was contended by Mr Young that Dr Bruton did not have any system of referral and that it was only fortuitous that Waikato Hospital, as part of its system, forwarded the specimens to Pathology at Greenlane for further consideration. 8 This latter submission does not appear to be consistent with the facts as disclosed in the pathology report from Dr Baranyai which shows that the report was made to him, rather than Waikato Hospital with copies of that report given to Dr Kennedy Oncology Department, Waikato Hospital and Dr David Kitchen, the deceased's surgeon. The note also states "Slides returned". When dealing with medical misadventure issues this Court is wholly reliant on expert medical opinion to determine the medical aspects of the issue and it is only the legal aspects of negligence which this Court must retain for itself and be the final arbiter. The medical evidence relevant in this case is that there were several diagnoses of the deceased's tissue carried out and several different diagnoses were obtained. It is noted that Dr Marshall, who came to a different diagnosis from Dr Bruton, advised that he nevertheless would favour the diagnosis that was made by Dr Bruton. In his report to the MMAC Dr Anderson, when considering the issue stated: "The question as to if medical error as defined in the act occurred relates to whether or not Dr Bruton's diagnosis of a yolk-sac tumour was not only incorrect, but unacceptable practice. It is not possible to say conclusively that Dr Bruton's diagnosis was incorrect since a consensus diagnosis, was not reached by the other pathologists. Two of them were nationally recognised experts. Dr Baranyai in New Zealand and Professor Russell in Australia. In fact Dr Marshall in examining the recurrence stated that he found favour in the diagnosis of a yolk-sac tumour, although he made a different diagnosis... 9 Considering that experts were unable to agree on a diagnosis for the tumour and that Dr Bruton had incomplete information (alpha feto-protein) at the time, in my opinion his pathology report does not constitute medical error as defined in the Act." Leaving aside the final opinion expressed by Dr Anderson, this Court can distil that several recognised pathologists could not make a conclusive diagnosis of the deceased's condition. The factors which caused Dr Bruton to make the diagnosis he did were found to have been acceptable. He did not have the benefit of knowing the deceased's serum alpha feto-protein level, which would have pointed against a diagnosis of yolk-sac tumour. No adverse comment had been made on that by any of the experts to whom the matter was referred. This Court is not going to enter into conjecture on that point. Finally, and contrary to the appellant's submission, there was a backup system which did throw up a differing diagnosis and which caused a reassessment of the deceased's treatment. This Court has not been told that the time lapse was crucial or that it was the difference between the deceased being given a chance of recovery or not. The medical opinion is that the deceased suffered from a particularly aggressive form of cancer and that despite operations, the disease continued to spread and did so rapidly and resulted in death occuring in a comparatively short time. Having regard to those facts as I find them to be, I rule as a matter of law that the actions of Dr Bruton did not amount to negligence in that his conduct did not fall below that of the standard of care and skill to be expected of a health professional in his position. 10 In the event that this finding should prove to be incorrect, I further find that the fact of misdiagnosis did not cause personal injury to the deceased and that her death, regrettably, would have occurred within the time frame that it did even if radical surgery and other treatment had occurred earlier than in fact it did. Accordingly then, I find that the deceased cannot be said to have suffered personal injury which was caused by medical error. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this 24t day of August 1998 M J Beattie District Court Judge Young.doc(gm)