Munro v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 84/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 19/ 94/ 0113 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUDITH MUNRO of Rotorua Appellant (Appeal No. DCA 66/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of August 1996 APPEARANCES Mr MS Lake for appellant Mr J Lee for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under the Accident Rehabilitation and Compensation Insurance Act 1992 in respect of a claim for medical misadventure. The appellant lodged a claim with the respondent in March 1993 she suffered damage to her teeth when undergoing dental treatment. The appellant had consulted Mr Hay, a dentist in Turangi between December 1985 and January 1987. He crowned several of the appellant's teeth and then in March 1993 the appellant consulted Mr Milicich, a dentist in Hamilton who extracted four of her teeth. The appellant stated in her claim that the loss of her teeth was the result of the treatment by Mr Hay. 2 The respondent obtained a report from Mr Milicich which is dated 11 June 1993 and states: "Ms Munro was referred to me by Mr. Evans, Maxillofacial Surgeon, on 29 March 1993 regarding repair to her upper anterior dentition for which she had received extensive treatment several years ago. Ms. Munro had originally approached Mr. Evans last year regarding pain in her front teeth. He performed apicectomies and repaired post perforations on teeth 11 and 21. It was subsequent to this that Ms. Munro was referred to me. I will confine my comments to the condition I found the teeth in at the time of treatment. The findings at the initial examination were as follows: 1) Tooth 13 was rootfilled 4 mm short of apex and had a post core crown that was mobile with a palatal margin that was open by 1.5 mm. The cement retaining the core was exposed and had a large void in it and there was caries tracking down the post canal, following the void in the cement. The post and crown were able to be removed with light pressure. 2) Tooth 12 was rootfilled several mm short of the apex with an associated periapical infection. There was a post core crown fitted with a very short post. The post and crown were able to be removed by hand due to a root fracture on the labial of the root due to the very short post. 3) Tooth 11 had a perforated root repair associated with a post placed through the mesial of the root and an apicectomy to repair a deficient rootfilling. The repairs on both the 21 and 11 had been done by Mr. Evans last year to correct the perforated posts and inadequate root fillings. The crown had an open palatal margin with associated caries. 4) Tooth 21 was in a similar state to tooth 11 except there was no observable caries present. There was also a radiolucency associated with the perforation repair and the tooth was painful. 5) Tooth 22 was adequately rootfilled and had a post and core crown with a short post. There was severe external resorption of the root present in the coronal 1/3 of the root. The crown was stable. 6) Tooth 23 had an adequate functioning crown fitted. Treatment required as a result of the examination: 1) Tooth 13. The short root filling was unable to be lengthened but because there was no pathology associated with the apex the decision was made to save the tooth. This entailed fitting a new cast post of greater length and a new crown. 2) Tooth 12 was extracted due to the root fracture. 3 3) Tooth 11 and 21 and 22 were deemed untenable in either the short or long term and were extracted. 4) Tooth 23 was crowned. OPINION The future of Ms. Munro's anterior dentition is uncertain at this stage. The 12, 11 and 21 were extracted due to the damage caused by earlier dental treatment. The 22 was extracted due to the external root resorption and would not have been a long term proposition. Its retention would have compromised future decisions regarding treatment The need to wear a plastic partial anterior denture was unavoidable so the decision was made to include the 22. The future treatment choices available are limited to either some form of removable denture which the patient finds very unacceptable or replacement of the missing four anterior teeth using titanium implants to support an anterior bridge. The expense involved at this point is beyond the capabilities of Ms. Munro, being in the range of $9000 to $11000. Ms. Munro now also has to deal with the fact she has lost her front teeth. This problem is two tiered. There is the loss of function that occurs in that it is very difficult or impossible to bite into food due to the inherent instability of a removable denture. The second, and probably more important consideration, is the psychological effect of loosing your "smile". Ms. Munro is an attractive woman and has found the loss of her front teeth very traumatic and is having great difficulty in coming to terms with what has been a loss of confidence and self image that comes with loosing a part of you that is at the heart of your personal projection, your own smile. PROBABILITY OF ADVERSE CONSEQUENCES I can only comment that the clinical situation I observed is outside any thing (sic) I have seen in 16 years of general practice. The short posts on teeth 13 and 12 were doomed to failure from the day they were fitted, and the perforated posts on teeth 11 and 21 made them unsuitable as abutments for serious restorative dentistry. Shillingberg Hobo and Whitsett' state in Fundamentals of Fixed Prosthodontics 2nd ed 1981, that the minimum length of a post should be at least the length of the crown and optimally 2/3 to 3/4 the length of the root. (a basic crown and bridge principle). In my opinion, Ms. Munro is now suffering the consequences of previous treatment and will continue to into the future. In my view this is not due to 4 the type of treatment she received, but to the standard of treatment to some of her teeth." The respondent sought information from Mr Hay and his report of 31 May 1993 states: "Thank you for your letter of 20 May 1993 re dental treatment for Ms ] Munro in 1986. Prior to crowning 13, 12, 11, 21, 22, 23 I took study models and discussed the treatment options with Ms Munro. In particular 12, 11, 21, 22 were heavily filled with composite restorations and were alignment wise somewhat irregular, which was really an orthodontic problem. I told her crowning the teeth would improve the appearance of 13 to 23 inclusive but the problems of heavily filled teeth and irregular alignment were limiting factors. I felt she had unrealistic expectations of what could be achieved and told her so. I proceeded to crown 13, 12, 11, 21, 22, 23 and root filled 12, 11, 21 first, 22 had been previously root filled by another dentist. VMK crowns and posts were placed on 13, 12, 11, 21, 22 and a VMK crown only on 23 which remained a vital tooth. When the crowns were cemented onto 13, 12, 11, 21, 22, 23 I was very satisfied with the aesthetic appearance, marginal adaptation and incisal occlusion of the crowns. I note that 13 is called into question, I did not root fill this tooth. Furthermore it seems Ms J Munro has seen a number of other dentists and I do not know what treatment she has received from them in the intervening years." A further report from Mr Hay of 4 February 1994 states: "In replying to your letter re Mrs Munro it appears that an assumption has been made in the report that I alone am responsible for the state of her teeth. Before she became my patient she had had a succession of dentists and after me quite a number more. During the short period 19/12/85 - 9/1/87 when she was my patient, she asked me to crown her upper six anterior teeth, which were heavily filled with composite restorations. Initially I refused because her oral hygiene was very inadequate and her expectations of what crowns could achieve to improve her appearance unrealistic. However she made an effort to improve her oral hygiene and I eventually agreed to make crowns on 13, 12, 11, 21, 22, 23. All were VMK crowns and needed posts except 23. The marginal fit of all six crowns was very good, although the posts on 12, 22 were shorter than I would have liked due to the curvature of their roots. I agree with Dr Milicich's report that crown posts should be 2/3 - 3/4 of the root length ideally. 5 The problem I was confronted with was aesthetic both in appearence (sic) and in the irregularity (orthodontic) of the six teeth. When Mrs Munro visited me three days later and three weeks later for further appointments, her oral hygiene had once again become inadequate, I expressed my profound displeasure about this and our already cool relationship deteriorated further. So it comes as no surprise to me that Dr Milicich reports mentions carious lesions around the crown margins, since they were fitted seven years ago on 8/12/86. In the short time I was Mrs Munro's dentist our relationship was never good. She had fixed and unrealistic ideas on what cosmetic dentistry could achieve especially given her orthodontic condition, uninformed opinions on dental treatment and she never failed on every visit to criticise a previous dentist and the treatment she had received from him. When I tried to explain why a certain treatment had been undertaken she refused to listen and always knew better. As a result of constantly changing her dentist she had received a series of ad- hoc and incomplete treatments before she became my patient from 19/12/85 - 9/1/87." The respondent arranged for the appellant to be examined by Mr S J Edward, a dental surgeon in Hamilton who reported on 30 May 1994. His report states: 'Examination: I examined Mrs Jude Munro on 24 May, 1994 at the request of your Department, the Medical Misadventure Unit of A.C.C. The patient was missing teeth 12, 11, 21, 22 and was wearing a temporary upper plastic partial denture. Teeth 13, 23 had been crowned with procelain (sic) fused to metal crowns. The partial denture was fitted in April 1993 after the four upper front teeth had been extracted. Because of the shrinkage of the gingival tissue the denture is very loose and is causing the patient some distress. The partial upper denture is clearly in need of replacement and the patient finds such an appliance difficult to tolerate and the best long term solution for her, given her aversion of the denture is a fixed appliance, implants or a bridge. History: It appears that Mrs Munro first visited Mr Hay because of the appearance of her upper teeth. She asked about crowns being a treatment possibility to provide the cosmetic appearance that she wanted. Mrs Munro said that Mr Hay indicated that he could do the crowns for her and provide the result she was after. 6 Mrs Munro maintains that no mention was made about orthondontics nor was anything said specifically about her oral hygiene. There also seemed to be no information given to her regarding potential problems with post crowns. During the clinical process, Mrs Munro said that the temporary crowns were ill fitting, they protruded, her lip tone had changed and she couldn't bite. After the crowns were placed Mrs Munro says that the root surfaces were exposed and when she complained about the appearance she was told her expectations were too high. Mrs Munro spoke to a Dentist in Wanganui after the crowns were placed (Mr Mike Simon) who took x-rays. Mr Simon then referred Mrs Munro to Mr Steve Evans, an Oral Surgeon in Hamilton who attempted to address the apparent Oral Surgery complications that had occurred on the root surfaces of the teeth. Mr Evans said to wait a year to see whether the surgery was successful or not. He took further x-rays after one year then referred Mrs Munro to a Hamilton Dentist Mr Graham Milicich for further work Mrs Munro agreed to have the four upper teeth removed after the assessment of Mr Milicich. His report details the clinical situation that he saw at the time. Mrs Munro confirms that she saw the teeth after they had been removed and observed the defects as pointed out by the dentist. The result is that Mrs Munro now had teeth 13, 23 crowned and an unsatisfactory partial denture to replace teeth 12, 11, 21, 22. Mrs Munro is a third year nursing student at Waiariki Polytechnic. Radiographic Report: I can not (sic) comment on the condition of her teeth prior to the original treatment by Mr Hay, not have I seen the radiographs taken by Mr Milicich or Mr Evans. I can only review the radiographs taken of teeth 13, 23 and in my view they are satisfactory. Those teeth exhibit no pathology. Opinion: 1 I have outlined the sequence of events as described by Mrs Munro from 1986 until 1994. 2 Without clinical and radiographic evidence to view it is not possible to comment on the specific treatment provided by both dentists. However in general principles, providing the teeth were sound, crowning the teeth is a proper opinion of treatment to provide a better cosmetic result. 7 Also the clinical picture that Mr Milicich presents would indicate that the proper course of treatment had been carried out by him. 3 Because I have no evidence in front of me to assess the clinical picture before and after the treatment from Mr Hay I can not (sic) properly comment about any relationship between the treatment received from Mr Hay and her current problem. Mr Milicich's report provides that information. However Mrs Munro is adamant that the treatment she received caused her to lose her teeth. 4 The appropriateness of Mr Hay's treatment I believe has been addressed by my earlier comments. 5 There is an urgent need to remedy the clinical situation that Mrs Munro is now in. Her appearance is causing her considerable distress and she clearly needs definitive treatment to resore (sic) her self confidence and to provide her with both satisfactory function and asthetics (sic).' On 20 September 1994 the respondent advised the appellant that her claim for cover was declined. The appellant applied for a review of that decision. The appellant gave evidence at the review hearing in which she explained that she had had the teeth capped by Mr Hay in 1986 and that as a result of his treatment certain of the teeth had had to be removed by Mr Milicich. The appellant also confirmed that prior to the treatment by Mr Hay and following that treatment she had also received treatment from other dentists. The review officer considered that there were discrepancies in the information which had not been overcome by Mr Edward's report. He was unable to determine whether the state of the appellant's dentition when she consulted Mr Milicich could be considered solely the result of treatment by Mr Hay so he declined the application for review. Mr Lake submitted that while it was acknowledged that the appellant had been to a number of dentists, there was no argument with the fact that Mr Hay had capped the teeth referred to in his report and that on examination by Mr Milicich some 7 years later it was his opinion that the state of the teeth at that time was "outside anything I have seen in 16 years of general practice. The short posts on teeth 13 and 12 were doomed to failure from the day they were fitted, and the perforated posts on teeth 11 and 21 made them unsuitable as abutments for serious restorative dentistry". Mr Milicich considered that the appellant was suffering the consequence of her previous treatment which would continue into the future. Mr Lake submitted that the appellant was not necessarily wishing to blame any particular dentist, but the evidence clearly showed that the teeth which had been crowned or root filled by Mr Hay had not been the subject of any additional treatment by any other dentist and they were then in the condition which Mr Milicich reported upon. He 8 submitted that clearly there had been a failure to provide treatment of a proper professional standard and that this was the cause of the loss of the appellant's teeth. Mr Lee submitted that in order to succeed the appellant must establish that there has been some medical error or medical mishap. He submitted that while the respondent's Medical Misadventure Advisory Committee had been unable to make findings with respect of medical error because of the complexity of the case and the conflicting issues, it was also unable to make a finding as to medical mishap for the same reason. Mr Lee submitted that Mr Edward considered that because of a lack of clinical and radiographic evidence he was unable to comment on the specific treatment provided by the dentists and that I should accept this evidence. Mr Lee further submitted that while Mr Milicich stated that the appellant was suffering the consequence of the standard of treatment she had received he did not necessarily relate that to the treatment given by Mr Hay. I have examined the evidence given by the appellant and the various medical reports. I am impressed by the report by Mr Milicich in which he stated that the appellant was clearly suffering from very poor dental procedures which were outside anything that he had previously seen during his years in practice. His impression was that, whoever had inserted the posts in teeth 11 and 21, they were completely unsuitable for the nature of the treatment then required. I do not accept Mr Lee's submission that it is necessary that blame should be attached to Mr Hay, but it does appear from the evidence that he was the only person who had performed this particular treatment which necessitated the intervention of Mr Milicich. I consider that Mr Edward's opinion was clearly a guarded one and that he did not wish to comment on the issues raised by Mr Milicich without his having seen them himself. I consider that in these circumstances I must accept Mr Milicich's report that the crowning treatment performed on the appellant's teeth was sub-standard and constituted a failure by a registered health professional to observe a standard of care and skill which could have reasonably been expected in the circumstances. This finding resulted in the appellant losing some of her teeth and she is therefore entitled to cover. The appeal is allowed. The file will be returned to the respondent to make the necessary assessments. There will be costs of $600. DATED at WELLINGTON this 16" day of September 1996 bounddub A W Middleton District Court Judge dc66-96.doc(rd)