Vandermeer v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 192 /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 JUTTA VANDERMEER DCA 92/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of August 1998 APPEARANCES: Mrs L Smith, counsel for appellant Mr JD Palmer, counsel for respondent RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue of this appeal is whether the appellant is entitled to cover under the Act in respect of personal injury by medical misadventure. The personal 2 injury said to have been suffered by the appellant are cerebellar infarcts in left and right cerebellar hemispheres following surgery. Background On 26 July 1983 the appellant underwent a vestibular nerve section through the posterior cranial fossa. The intention of the surgeon was to sever the vestibular nerves in order to relieve the appellant from her incapacitating attacks of dizziness. During that operation the auditory nerve was mistakenly severed causing the appellant to lose all hearing in her right ear. Several strands of the vestibular nerve were left undivided. The appellant lodged a claim under the 1982 Act in respect of the loss of hearing caused by medical misadventure and that claim was ultimately determined by the Accident Compensation Appeal Authority which ruled that the claim be dismissed on the basis that the outcome did not constitute surgical error, that the possible consequences of deafness were fully explained to the appellant prior to her giving consent and that the loss of hearing was not an adverse consequence outside the normal range of failure attendant upon that surgery. The issue of the failure to properly sever the vestibular nerves was not addressed in that decision. Therefore the appellant lodged a second claim for cover by medical misadventure alleging the failure to properly sever the vestibular nerves. That claim was declined initially by the Corporation and an application for review was lodged and at about the same time the appellant lodged a third claim for medical misadventure, again alleging the suffering of cerebellar infarcts as a consequence of the failure to sever the vestibular nerves. 3 Technically this Court is seized of two appeals from review decisions declining cover but it is common ground that there is simply one issue and that the second and third claims are indeed covering the same issue. The claims went to a review hearing in March 1997 and the review officer ruled that there was no evidence of medical error as that term is defined in s 5(1) of the Act. This finding is consistent with the previous finding of the Accident Compensation Appeal Authority and it would be most surprising if it were otherwise. In so far as medical mishap is concerned, the review officer found firstly that there was no evidence of a causal link between the cerebellar infarcts and the surgery of July 1983, but that in the event that such a causal link could be had, the consequences of that treatment were neither rare nor severe as is required for establishing medical mishap under the Act. Because the surgery of 1983 did not cure the appellant of her dizziness, further surgery was carried out in 1984, 1985 and 1988. It seems as though each of this surgery only had limited success and it was not until an MR brain scan was performed on the appellant in Australia in 1991 that the infarcts were noted in the left and right cerebellar hemispheres. In a report dated 17.2.95 Dr R S Craven, neurologist, stated: "These infarctes were not, I assume, noted in scans performed earlier and are thus the result of surgery and not long standing. Anyone and particularly more than one operation to the posterior fossa carries a small risk with it that blood vessels can be damaged, and I feel that this has occurred here in that the infarctes (strokes) which are evident on MR scan are responsible at least in part for Mrs Vandermeer's sense of instability. It is my own view that the 4 infarctes which have occurred following surgery are not an adverse consequence which is within the normal range of surgical failure and if this is accepted then I conclude that Mrs Vandermeer has a claim for compensation for medical misadventure." It is further noted that it was the advice of Mr Peter Blake, otolaryngolagist, to the Medical Misadventure Advisory Committee that there was no evidence which established the causal link between the claimed issue of cerebal infarctions and the posterior craniotomy which was carried out on 25.7.83. In layman's terms it is the appellant's contention that the severing of the vestibular nerves was necessary to cure the appellant's bouts of giddiness, that the initial surgery in July 1983 did not properly deal with that task, that subsequent surgery was required on three occasions to complete that task and that in the course of that subsequent surgery cerebral infarctions were caused and that the resulting numbness to parts of her face caused by those infarctions is the personal injury complained of. It was Mrs Smith's submission for the appellant that the failure to cut the vestibular nerves caused the need for further operations, those further operations caused the infarctions. As I have noted this is not a case where medical error can be established, indeed it was rejected by the Appeal Authority in relation to the severing of the auditory nerve. I find therefore it is not an issue which can be raised again in this case. However even were it to be so raised, the finding of the Medical Misadventure Advisory Committee and the review officer was that there was no negligence and I confirm that fact. If anything further were required to emphasise that finding it would be the fact that it is common 5 ground that the vestibular nerves are difficult to sever in certain cases, and in the case of this appellant it required four operations in total before the task could be said to have been completely done. Accordingly, this leaves the question of medical mishap only. In addition to the appellant being required to establish on the balance of probability that there is a causative link between the surgery of 1983 and the cerebellar infarctions, there are the further elements requiring to be satisfied, namely the tests of rarity and severity. In so far as a causative link is concerned there is the opinion of Mr Blake that no such causative link does exist, there being no evidence that the infarctions were caused during that first surgery. This fact is emphasised by reason of the fact that earlier brain scans did not show any infarctions and that it was not until after the final surgery that a brain scan did show cerebellar infarctions. This must give rise to a reasonable probability that the infarctions were caused on one of the subsequent occasions of surgery, one of which was carried out in Switzerland. This Court has been given no evidence which could identify which particular surgical procedure may have caused them. In so far as the rarity aspect is concerned, the only evidence that has been tendered is that of Dr Craven who talks of a small risk that blood vessels can be damaged. At no stage could this Court interpret that statement as bringing it within a risk factor of less than 1% which is the statutory requirement. In so far as severity is concerned, there is no evidence that the appellant required hospitalisation as an in-patient for more than 14 days but the second alternative in that definition of severity under s 5(4) of the Act would 6 in all probability apply. The evidence of Dr Craven is that he would assess her disability in respect of cerebellar infarctes at 20% of total for the purposes of s 78 of the 1982 Act. I would be prepared to hold that as being a significant disability. However in addition to the finding that there is no causal nexus between the surgery of July 1983 and the establishment of the cerebellar infarcts by that surgery, I find that the proposition submitted by Mrs Smith that it is sufficiently causative if that first surgery, being unsuccessful, required the appellant to undergo further operations in which at either one or more of them those cerebellar infarctes were inflicted. This I find is adding some imaginary links to a perceived chain of causation. The fact that further surgery was required is not the same as finding that further surgery was caused by the initial failure to sever all the vestibular nerves. The cerebellar infarcts were caused by one or more occasions of surgery, nothing more nothing less, but it was not the surgery of July 1983. That is the only surgery to which the appellant can look to in terms of her present claim. For the purposes of considering medical misadventure this Court must look at the particular treatment which is complained of and determine whether it can come within these statutory criteria of either medical mishap or medical error. Each occasion of treatment by a registered health professional must be considered on its own and it is that treatment which must be the cause of the personal injury. If counsel for the appellant's submissions were accepted it would mean that the treatment which did not cause any personal injury was nevertheless capable of being medical misadventure simply because further treatment was required and it was during that further treatment that 7 personal injury occurred. Such is not the way the question of medical misadventure can be looked at under the provisions of the ARCI Act. Accordingly then, for the foregoing reasons, this Court confirms the review officer's decision that there is no causative link between the surgery of July 1983 and the personal injury from which the appellant now suffers and that in any event a vital ingredient of that personal injury, namely rarity, is not present. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this 2" day of September 1998 eathe MJ Beattie District Court Judge vandmeer.doc