Wischnowsky v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 292/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOYCE WISCHNOWSKY of Palmerston North Appellant (Appeal No. DCA 246/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 13th day of September 1999 APPEARANCE/COUNSEL R HE Ablett-Hampson for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant suffered personal injury by medical misadventure. The appellant lodged a claim with the respondent on 13 February 1995 claiming that "in operation to remove a lump from my forehead 1986 my scalp split open. Since then I've had 3 scalp operations. The last major surgery has severely handicapped me." Her General Practitioner, Dr J W Dijkstra, diagnosed the injuries as "medical misadventure claim". The background which led to the claim is that the appellant was admitted to the Palmerston North Hospital on 6 April 1985 following a collapse. It was noted that at 2 that time she had a large ulcer on her forehead which had been present for some five or six years. Dr Broadbent, the Director of the Accident and Emergency Department at the Hospital, performed a biopsy which did not demonstrate a malignancy. Dr Broadbent continued to treat the ulcer until April 1988 and on each occasion he noted that when the ulcer was almost healed it would return. Dr Broadbent concluded that interference by the appellant was perpetuating the condition. In April 1988 Dr Broadbent referred the appellant to Mr M Lovie, a Plastic Surgeon. Mr Lovie performed two skin graft operations to cover the ulcer, the first in September 1990, the second in October 1993. In a report of 10 March 1995 to the respondent, Mr Lovie noted: "I first saw Mrs Wischnowsky on the 7.5.90 because of a large area of ulceration of the scalp. She gave a history of scalp operation for 11 years. 3 years ago she had had surgery carried out by Mr Broadbent but the ulceration continued. Taking into account the history and on examination I made a diagnosis of dermatitis artifacta. In her past history she had history of some psychiatric disorder and had had treatment from a Doctor Cotter. She also had a history of depression." Mr Lovie noted that following an operation for grafting of the scalp on 17 September 1990, the graft took with complete healing and the appellant was discharged on 24 September 1990. He said that when he saw her again on 13 November 1990: "the posterior edge of the graft had disappeared and further ulceration was present. She continued dressings herself and I saw her a further eight times until April 12, 1992. At this stage there was obvious deterioration in the posterior aspect of the scalp and I felt that a further skin graft maybe helpful. This further graft was carried out on 5.10.93 in the plastic surgical unit at Lower Hutt and the graft resolved in healing of the scalp." Further in his report he noted that when examined on 9 November 1993 there had been a breakdown of the graft posteriorly. Mr Lovie saw the appellant on three occasions in August 1994 when there was further deterioration. He said that when he examined her on 9 August 1994 part of the skull had then become exposed. He considered that to be unacceptable and arranged for her to have a scalp flap repair and secondary skin grafting. His notes recorded that he had explained the nature of the proposed operation to the appellant. The operation was carried out on 2 November 1994 "when two large flaps were rotated into the central area of the skull exposure and secondary skin grafting." Mr Lovie reported that that surgery resulted in complete healing of the scalp but that post operatively the appellant became extremely agitated and upset because she considered she had been disfigured. Mr Lovie reported that he saw the appellant on 13 December 1994 when he found that the scalp had completely healed with no areas of ulceration. After the claim was lodged with the respondent, the matter was referred to the respondent's Medical Misadventure Advisory Committee. At its first meeting on 26 May 1995 the Committee had the benefit of the respondent's clinical summary, the 3 appellant's letters to the respondent dated 5 March and 12 May 1995, Dr Dijkstra's report dated 1 March 1995 and two reports from Mr Lovie dated 20 March and 29 March 1995. The Committee concluded on the basis of its initial examination that there was no indication of medical error or inappropriate treatment. It also noted that in order to qualify as a medical mishap the claimed unsatisfactory outcome of the treatment must be both rare and severe. As to rarity, the Committee noted "that given a diagnosis of dermatitis artifacta, ongoing scalp and graft complications cannot be considered rare." The Committee noted that the adverse consequences came within the test of severity as there was a significant disability lasting for more than 28 days in total. The Committee then invited Mr Lovie and the appellant to comment on its initial findings. The Committee received further submissions from the appellant and confirmed its original findings. As a result of that finding the respondent notified the appellant on 22 August 1995 that her claim was declined. The appellant lodged an application for review of that decision. The principal reasons submitted with the appellant's application for review was that the operation had been carried out without her prior knowledge or consent as a result of which she was "mutilated and terribly disfigured" and uncomfortable although healing did occur. She considered that she was "the victim of inappropriate treatment." After the review application had been set down for hearing the Review Officer requested information from Mr Lovie in regard to the appellant's claims. The list of questions posed by the Review Officer was: "1. As one of Mrs Wishnowsky's (sic) submissions concerns the aspect of consent and while the above documents address most aspects, I would appreciate you outlining briefly what was explained to Mrs Wishnowsky (sic) with particular reference to whether Mrs Wishnowsky (sic) was aware that pieces of her right scalp would be moved and where the suture lines would be. 2. Whether there was discussion about the likelihood of complete healing and whether any provisos' were attached to this with respect to the dermatitis artefacta? 3. Mrs Wishnowsky (sic) has alleged on 14.3.95 that she understood you to indicate that you had not consulted her pre-operatively because she would not have understood. It would be helpful if you would elucidatethe (sic) background to Mrs Wishnowsky's interpretation of your discussion. 4. The factors that led you to proceed with surgery on 1.11.94 when the nature of Mrs Wishnowsky's (sic) condition and situation was such that it was concluded by the medical misadventure committee that this complication (is not rare) (could occur in 1% or more of cases). I attach the Medical Misadventure Committee's comments for your information. 5. Has there been any other medical professional involved in the diagnosis and treatment of the dermatitis artefacta and if so could you please assist in my obtaining any other relevant medical reports? How extensive is the 4 dermatitis artefacta? Does the dermatitis artefacta also extend to the scalp donor site as well as the area that was granted? 6. Mrs Wishnowsky (sic) has disputed your statement in the letter of 10.3.95 attached) which stated you had seen her on 3 occasions in August 1994. There is a record of a consultation in 9.8.94 in Palmerston North (attached) but no other records. (These may have been consultations with you in your own rooms.)" Mr Lovie's reply of 13 March 1996 stated: "In answer to your questions raised in the letter. Question 1 Regarding Mrs Wischnowsky's consent to surgery. It should be understood that patients suffering from dermatitis artefacta are often unable to comprehend the nature of the problem, the cause of the condition and, therefore, the necessary treatment required. I believe Mrs Wischnowsky has never really understood why she had such severe ulceration and skin loss of the scalp and, therefore, may not have understood why reasonably major surgery was required to cover the exposed bone of the skull. Even today she does not believe that the surgery carried out was necessary. It was in fact the only reasonable treatment option available to carry out what was medically required. A general description of the surgery proposed was given prior to the operation, but she may not have easily understood the technicalities of the surgery. Certainly planning of the flap repair and where the grafts will be placed is done as part of the surgical procedure in theatre and no detailed explanation of this would have been given. As mentioned in my previous report it should be understood that the surgical procedure carried out entirely satisfactory, achieved good healing and had the expected result without complication. Question 2 Complete healing was achieved following the skin flap and skin grafting, but post- operatively there was a small area of breakdown posteriorly. This is in the nature of the condition (dermatitis artefacta) and as this condition is not understood by Mrs Wischnowsky any discussion of this is difficult. Question 3 The total management of dermatitis artefacta is extremely difficult and complex. She will have understood from discussions prior to her last surgery that the surgery was designed to heal the scalp and this was in fact achieved. She will have not known the technical details as to how this was to be achieved, particularly the planning decisions that are made once the patient is asleep immediately prior to the surgery. Pre-operatively I discussed with Mrs Wischnowsky that she required further repair to cover the exposed bone of the skull and this would be done by a combination of flap repair and skin grafting. As 5 far as I am aware she was perfectly happy to go ahead with this. Her extreme concern became evident post operatively and was a complete surprise. Question 4 This question is unable to be answered satisfactorily. The condition that Mrs Wischnowsky has is reasonably rare, is complex and difficult to manage. The method of repair used in the surgery carried out on 1.11.94 is standard, achieved the result expected and was without complication. I have said this in previous reports and, therefore, have no idea what complication which they have put in inverted commas that they are referring to. Question 5 In answer to this question. Mrs Wischnowsky was initially treated by Mr Broadbent who came to the same diagnosis of her condition. Although I d not have records of his treatments, I understand he did carry out surgery for her. She was unhappy with the result of this and came under my care in 1990. Relevant medical reports of Mr Broadbent's treatment of Mrs Wischnowsky can be obtained from Palmerston North Hospital. As regards the extent of the condition, I understand from her that it began some eleven years prior to my seeing her and involved the forehead and then extended posteriorly to involve the scalp. The donor sites for grafts to the scalp was left thigh and this healed satisfactorily without complication. The extent to which an area is affected is determined by the nature of the disease and may affect any area of the skin. Question 6 In answer to this question. As far as I can determine she was seen at Palmerston North Hospital in February '94 and again in August '94 when I discussed arrangements for her scalp flap repair and secondary grafting. She was not seen on three occasions during August '94 and this is probably a typing error. In essence she was seen regularly following surgery in October '93 and I noted gradual deterioration of the grafting carried out in 1993 until the whole area once again was ulcerated and then developed exposure of the underlying bony skull. A decision was made and explanations given for further surgical management on 9.8.94." Following the hearing at which the appellant made substantial submissions, the Review Officer advised the appellant that she proposed seeking the advice of a Plastic Surgeon who had not been involved in the proceedings. She then supplied full details of the claim to Mr J J de Geus, a Specialist in Plastic and Reconstructive Surgery, Auckland. His report of 12 June 1996 states: "In reply to your letters requesting a second opinion on this case, I spent considerable time on reading and re-reading the various submissions, letters and hospital records that you have sent me. Many of these have been duplicated and 6 some were too illegible to read, but I think I have now pieced together as much of the story as is possible, from the records you have sent me. The records are incomplete, in that there is no information from Mr. R. Broadbent, Plastic Surgeon Palmerston North, or her own general practitioner and care giver over the previous ten years. This makes it somewhat difficult to obtain an accurate picture of Mrs. Wishnowsky's (sic) medical background. It seems plain however that she had a chronic non-healing lesion on the right side of her forehead, which she initially cared for herself, for a number of years (? five). Following referral to Mr. Roger Broadbent, an attempt was made to excise this under local anaesthetic, but the wound broke down, leaving her with an area of chronic ulceration. This situation continued for a further couple of years until Mrs. Wishnowsky (sic) was referred to Mr. Lovie, Visiting Pastic (sic) Surgeon Lower Hutt Hospital. The diagnosis of dermatitis artifacta had by then already been mentioned by Mr. Broadbent, and I gather confirmed by Mr. Lovie's clinical opinion. In 1990, Mr. Lovie organised for the first two operations to be carried out on Mrs. Wishnowsky (sic). This first operation was carried out by his registrar, Mr. A. Tonks, who excised the area of chronic ulceration and replaced it with a skin graft. The skin graft broke down in the post-operative period and Mrs. Wishnowsky (sic) was left with an area of chronic ulceration which continued for the next three or four years. Eventually in 1994, Mrs. Wishnowsky underwent her definitive operation, the result of which she complains about. It is clear from the records that there was a large area of chronic ulceration on the top of her scalp, which involved the underlying bone. This meant that excision of the ulcer would leave exposed bone, and therefore an ordinary skin graft was not an option for repair. The only way of repairing such a defect is to cover it with a flap of soft tissue of some description. In this region, in the presence of chronic ulceration and exposed bone, local scalp flaps are probably the best option. A microvascular flap transferred from elsewhere in the body is the more difficult flap to use and would also have had significant cosmetic problems. If it is accepted that scalp flaps are the more reasonable option then Mrs. Wishnowsky's (sic) operation had the desired result in that it healed the area of ulceration. It has to be noted that this area of ulceration if left unchecked, could have proceeded through the skull bone and affected the outer covers of her brain, resulting in meningitis or worse. It was therefore a life-threatening situation in the long-term. The basis of Mrs. Wishnowsky's (sic) complaint appears to be the disfigurement that resulted from the flaps that were used. She is now left with a chronic 7 deformity of her forehead, where a skin graft has replaced the flap that was rotated upwards onto the exposed bone. She has a further area of skin grafting on the back of her head where the second flap was brought forward again to cover the expoosed (sic) bone. However to achieve this end result it appears that the most suitable scalp flaps were used and they carried an inherent legacy of scarring. There cannot be any medical misadventure applied to this because the operation was a successful one. Mrs. Wishnowsky's major claim is that she was not warned of the procedure she was about to undergo. Mrs. Wishnowsky states that if she had known all the facts, she would not have given her consent. In Mr. Lovie's replies to Mrs. Wishnowsky's (sic) further questions, Mr. Lovie states clearly that a general explanation of the operation was given to Mrs. Wishnowsky, but that the details of the actual flap planning may not have been outlined. That is generally the case because final planning always occurs at the time of operation. It is of course impossible for me to know what words were used to explain the operation to Mrs. Wishnowsky (sic), and what understanding she had of this pre- operative discussion. At the end of the explanation, Mrs. Wishnowsky (sic) did sign her consent form, and I would hope that that was done with some understanding. Having taken all these factors into consideration, I do not think that a finding of medical misadventure can be applied to this situation." The Review Officer issued her decision on 19 July 1996. She found that there was no evidence which contradicted the findings of the Medical Misadventure Advisory Committee panel and this was confirmed by the opinion of Mr de Geus. She also held that "in regard to lack of informed consent it would be necessary to establish negligence on the part of the registered health professional." The Review Officer concluded that there was no evidence that would satisfy her that Mr Lovie had been in any way negligent. She noted further that the appellant had given her written consent to each operation and considered that she found "some difficulty in accepting that an adequate discussion did not take place given the history of different surgery Mrs Wischnowsky has undergone and the history of her dissatisfaction with results of surgery and the medical profession dating back to 1985." The review application was therefore unsuccessful and it is against that decision which the appellant now appeals. The grounds for appeal are that the Review Officer was wrong to find: a) that there was no medical misadventure; and (b) that the appellant had given her informed consent to the procedures. Mr Ablett-Hampson submitted that the second operation which took place constituted a medical error in that the excision had taken away good material which was detrimental to the success of the operation. He submitted further that the appellant denied the diagnosis of dermatitis artifacta but if in fact diagnosis was correct the extra operation could have exacerbated that problem. He submitted that an incorrect diagnosis had led to the appellant undergoing inappropriate treatment. 8 He submitted further that Mr Lovie's notes seemed to indicate that he was unaware of the nature of how the appellant was first injured. Mr Ablett-Hampson further submitted that the 1994 operation was the result of a combination of mishap and failure, being the breakdown of the second grafts from the previous operations which Mr de Geus considered was inappropriate. Mr Ablett-Hampson further submitted that on 4 October 1993 the appellant signed a consent form for excision of the scalp ulcer and scalp flap repair but that the operation carried out was substantially different, being the second graft which Mr de Geus's opinion was not the appropriate operation. Mr Barnett submitted that in its consideration of the matter, the Medical Misadventure Advisory Committee had considered all the procedures carried out on the appellant from which it concluded that the outcome of the surgery was appropriate. He submitted that the diagnosis of dermatitis artifacta which was made by Mr Lovie and confirmed by both Dr Broadbent and Dr Dijkstra led to a self- induced ulcer. He submitted that, accordingly the consequences suffered by the appellant were not the result of the surgery but of her own actions. He submitted that the medical evidence indicated that following each of the operations there was a successful outcome and that the scarring which occurred as a result of the surgery was an expected consequence of that surgery. Mr Barnett submitted that in regard to the issue of informed consent there is no evidence that the medical professionals involved were in any way negligent in failing to obtain the appellant's informed consent to the procedures. He submitted that the file shows three separate consent forms for each of the operations in 1990, 1993 and 1994 in which the appellant confirmed that she consented to the treatment and that she understood the nature and effect of the treatments. In order to establish an entitlement to cover by way of medical misadventure the appellant must establish that the consequences of the operations were so rare as to constitute a mishap. The Medical Misadventure Advisory Committee, which had the benefit of all the material then available, concluded that on the issue of medical mishap and given the diagnosis of dermatitis artifacta the adverse consequences following the grafting procedures occur in more than 1% of the cases in which similar procedures are carried out. Consequently in the opinion of the Committee the appellant had not satisfied the rarity test. On top of that finding, it is clear from Mr Lovie's reports that the immediate result of the various operations was that they were successful but that there was a subsequent breakdown which he attributed to the dermatitis artifacta. This unfortunate problem which afflicts the appellant caused her to interfere with the operation sites and led to the continuing breakdown of otherwise successful operations. I do not read Mr de Geus's opinion as other than being in support of Mr Lovie's opinion that the operations in themselves were appropriate and were successful. In regard to the issue of informed consent, it is necessary for the appellant to demonstrate to the Court on the balance of probabilities that the medical professionals involved in her treatment were negligent in failing to obtain her informed consent to any of the procedures. I note that in respect of each of the 9 proposed operations the appellant signed a consent form which, in addition to stating the nature of the operation to be performed, states "I also consent to such further or alternative operative measures or treatment as may be found necessary during the course of the operation or treatment and to the administration of general or other anaesthetics for any of these purposes." While the appellant takes issue with the fact that surgical procedures were carried out which she did not understand would be carried out, Mr Lovie had explained that these were matters which required immediate attention during the course of the operations and were a necessary part of them and were matters which came within the context of the general consent given by the appellant. Mr Lovie had had a long association with the appellant and considered that on each occasion he had fully explained to her what was proposed to be undertaken in each operation and that she understood the nature of his advice. I do not consider that the appellant has satisfied the onus on her to demonstrate that there was any negligent failure on the part of Mr Lovie is obtaining her informed consent. He was involved in the last procedure which, as it transpired involved the need to carry out urgent treatment which was not apparent pre-operatively. I consider that at all times the appellant was fully informed of the nature of the procedures required to be undertaken and had authorised such other surgical procedures as might arise in the course of the operation. For the reasons I have indicated, I do not consider that the appellant has satisfied the onus on her to demonstrate on the balance of probabilities that she has suffered a medical misadventure. The appeal is dismissed. DATED at WELLINGTON this | + day of October 1999 A W Middleton District Court Judge dca246-96.doc (nr)