Mundell v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 94 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 98/08) BETWEEN K MUNDELL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 2 December 2011 Appearances: No appearance for appellant Mr P A McBride for respondent Judgment: 23 March 2012 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal was set down for directions on 2 December 2011. The appellant was notified that he needed to appear and that the Court has power to dismiss the appeal [2] A memorandum had earlier been issued by the Court on 10 February 2009 after a hearing at which Mr Mundell was present and argued his appeal. The appeal was adjourned in order for him to obtain any further information that he needed to present his case. Nothing further has come to hand and Mr Mundell did not appear at the adjourned hearing. [3] The appellant was declined cover for a treatment injury namely "critical care neuropathy" that occurred after he was admitted to intensive care for pneumonia on 1 August 2003. The claim was governed by the 2005 amendedments to s 32 of the Act. Cover depends on: (a) an injury caused by treatment; (b) the injury not being an ordinary consequence of the treatment, taking into account all the circumstances of the treatment (c) the injury not being wholly or substantially caused by the appellant's underlying health condition. [4] The case for causation by treatment was that there was a failure to diagnose at a time when medical intervention would probably have significantly avoided the adverse outcome, namely critical care neuropathy. There was no claim of failure to give proper treatment after admission to intensive care, but there was a claim of prior delay in diagnosis. [5] The narrative was given by Mr Mundell and his wife. Mr Mundell first saw his GP on 29 July 2003 after having decreased energy for three or four days. He was prescribed some medication and returned home. His breathing was a bit erratic that night. The following day he had symptoms of vomiting and diarrhoea and his wife arranged for him to see his GP again. He was prescribed more medication and went home. That night he was weaker and was not eating. The following day when his wife wanted to get a further GP appointment, the practice nurse refused to make an appointment. His symptoms got worse, and on 1 August his wife called an ambulance and he was admitted to hospital. [6] That account is generally confirmed by medical records. On 29 July, the GP found symptoms of psychological distress. Mr Mundell had recently had mental health treatment and the significance of his physical symptoms was obscured by other factors. On the second visit he was prescribed immodium for diarrhoea. There was a GP patient note made on 31 July that Mr Mundell was "vomiting again .. esp when moving", but there was no record of treatment. [7] That night he attended Medicross where he saw a temporary doctor, who he says was not competent to diagnose his condition. He was treated with a Valoid injection and given Stemetil tablets for the vomiting and advised to see his general practitioner for follow up the next day. [8] On admission to Taranaki Hospital on 1 August 2003 he was noted to appear acutely unwell, in respiratory distress and dehydrated. He was presumed to have bilateral basal pneumonia. Blood culture revealed streptococcus pneumoniae. He developed Adult Respiratory Distress Syndrome and continued to deteriorate while on ventilation. On 7 August he was transferred to Waikato Hospital for ongoing care. [9] Mr Mundell eventually recovered from the pneumonia but was left with Critical Care Neuropathy causing significant weakness in his arms and legs. MRI confirmed damage to the brain from his illness. There are residual effects and Mr Mundell says that he has continuing problems with cognitive skills, memory, and personality changes. [10] Treatment injury is defined in s 32 of the Act, with certain exclusions. The relevant parts are set out here: 32 Treatment injury (1) Treatment injury means personal injury that is- (a) suffered by a person- (i) seeking treatment from 1 or more registered health professionals; or ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; . . . b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including - (i) the person's underlying health condition at the time of the treatment; and ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: ) personal injury that is wholly or substantially caused by a person's underlying health condition: . . .. [11] On investigating the claim for treatment injury, the Corporation obtained a number of specialist reports. The opinions obtained by the Corporation were divided on the question whether the appellant's Critical Care Neuropathy was caused by the course of treatment. The enquiry concerned the delay of up to three days between Mr Mundell's first vist to his GP with symptoms on 29 July and his admission to Taranaki Hospital on 1 August. [12] Dr Wallis, a neurologist, said that it is not always possible for doctors to reliably make the diagnosis of an acute infectious illness of this sort. He considered that the delay of three or four days could be be within the acceptable range. Dr Martin, respiratory physician, said: "This is a fairly typical presentation of a community acquired pneumonia with an initial flu like illness in a person with underlying lung disease followed by development of a severe pneumonia. Whilst there were atypical features to the presentation, it does not appear that there was an unreasonable delay in establishing the diagnosis or establishing the need for admission to hospital. Hence one cannot conclude that the unfortunate outcome was a result of failure to treat or a failure to treat in a timely manner". [13] At review stage, the Corporation obtained a further opinion from Dr Holland, general practitioner, concerning the failure to diagnose. The question here was not one of medical error, but of causation. If the eventual neuropathy was a result of severe infection that could have been averted by earlier admission to treatment, then the delay would have been causative. Dr Holland considered that Mr Mundell's general practitioner, being familiar with the patient's history of asthma, should have conducted a more thorough examination, at least on 30 July. There were subsequent failures on 31 July. [14] Under the new provisions in s 32 medical error was not a relevant finding. The only question was whether there had been a delay and whether it might have caused the eventual neuropathy. On the second point, Dr Holland said: "The literature evidence suggests that even had he been treated with antibiotics by his general practitioner then the outcome would have been the same, with only a small improvement in outcome demonstrable with pre- admission antibiotic treatment. . .. The deterioration in hospital and the occurrence of Critical Care Neuropathy was a consequence of the severity and progression of his illness and would not have been avoided by earlier treatment or admission. Treatment injury can only be said to occur if the failure to diagnose is what led to the adverse outcome. This is not the case here. The adverse outcome was a consequence of the severity of the infection that Kerry suffered and was very unlikely to have been changed by earlier treatment or admission to hospital. Once his pneumonia was established, Kerry was probably unavoidable set on the course that his illness followed. This was not due to a failure to diagnose or treat him early enough. It was in the nature of his illness and the way his body responded to it." [15] Those findings addressed the old provisions of s 32 concerned with fault. However they were relevant also to the question of causation through delay. Dr Holland considered that a delay in diagnosis and treatment did not cause the eventual neuropathy, but that it would probably have occurred in any case once the infection was established by 30 July. [16] Dr Holland's comments also illuminated the question of exclusion for personal injury that is wholly or substantially caused by a person's underlying health condition. That exclusion applies if the pneumonia had developed to the point that earlier treatment would have made no difference. It also applies to the appellant's underlying asthma condition if that had been a factor that made his acute deterioration more likely. Dr Holland wrote: "The incubation period for strep. Pneumonia may be as short as one to three days, though this has been hard to establish from a review of the literature. However it does seem likely that Kerry's pneumonia occurred as a complication of an earlier infection, possibly viral, that had made him feel unwell over the weekend and through to the 30" July. His deterioration on the 30th July when he felt unable to drive probably signalled the onset of pneumonia. He was susceptible to such infection with his long standing asthma, as people with chronic lung problenis seem to be particularly susceptible to a severe inflammatory response in the lungs and this is probably irrespective of how quickly treatment is initiated." [17] Dr Holland's opinion was referred back to Dr Martin. He agreed with the conclusions and wrote: "I note that Dr Holland has concluded that whilst the care provided to Mr Mundell by the General Practitioners fell short of that which one would regard as appropriate, this is unlikely to have been a factor in the outcome which is the subject of this claim. In short, even had the general practitioners who examined him during the early stage of the illness performed physical examinations and considered the early use of antibiotics, it is likely that admission to hospital with a severe pneumonia would have still occurred and the neurological complication of prolonged critical care would have followed. Both Dr Holland and I have concluded that the unsatisfactory outcome from the illness was caused wholly and substantially by underlying health conditions. We agree that the outcome, severity and progression of the illness would unlikely have been different had there been earlier treatment or admission to hospital." [18] The Reviewer accepted those opinions and concluded that there had been a treatment delay, but that the personal injury was not caused by the delay and was caused by the severity of the infection. [19] I reach the same conclusions on the medical evidence presented. While it is possible that earlier treatment by the general practitioner or earlier admission to hospital might have made a difference, the claim depends on the balance of probabilities. The consensus of medical opinion was that the delay probably made no difference to the outcome of Critcal Care Neuropathy. The cause was more likely to have been the severity of the pneumonia infection and the appellant's vulnerability to severe consequences of lung infection. [20] The appellant was naturally concerned to have an enquiry into the failures of the general practitioners to diagnose his condition when he attended the practice twice, on a third occasion when a practice nurse refused to make an appointment, and a fourth occasion when he saw another general practitioner at night with similar results. Those matters have been the subject of complaint outside the scope of this appeal. Under s 32 the Corporation does not have to consider whether a personal injury was caused by medical error, and so does not have to investigate questions of fault. The enquiry here concerned the consequences of delay, not the fault for delay. [21] For the reasons given the appeal is now dismissed. Judge D A Ongley District Court Judge