Lindsay-Beale v Accident Compensation Corporation (Treatment Injury)

IN THE DISTRICT COURT AT WELLINGTON I TE KOTI-A-ROHE KI TE WHANGANUI-A-TAR [2019] NZACC 28 ACR 214/18 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 149 OF THE ACT BETWEEN KAREN LINDSAY-BEALE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 March 2019 Appearances: B Hinchcliff for the appellant D Tuigeregere for the respondent Judgment: 10 April 2019 RESERVED JUDGMENT OF JUDGE AA SINCLAIR [Treatment Injury s 32 Accident Compensation Act 2001] Issue [1] The appellant, Ms Lindsay-Beale, was diagnosed with breast cancer in January 2008 having been referred for investigation by her general practitioner, Dr Jennifer Lea, in November 2007. Ms Lindsay-Beale claims cover for the progression of her cancer which she says was the result of a delay by Dr Lea in the diagnosis and treatment of the cancer. Background to Appeal Treatment History [2] Ms Lindsay-Beale had a breast lumpectomy in 1994 when she was living in Germany. She returned to New Zealand in or about 2000 and had her first consultation with Dr Lea in late 2000. Dr Lea's handwritten clinical notes record that Ms Lindsay-Beale had a number of consultations with Dr Lea for a variety of medical issues between 2000 and 2003. [3] On 13 April 2004, Ms Lindsay-Beale had a further consultation with Dr Lea. Three health issues were discussed including Ms Lindsay-Beale's breast health. In her clinical notes, Dr Lea records: "Past HX breast lumpectomy 1994, PT requests mamo and US. No breast SX, no mammo [next word is illegible]. " Dr Lea also drew a breast diagram which indicated that there was no lump palpable in either breast and showed a scar from the previous lumpectomy. No referral for a mammogram and ultrasound was made. [4] Ms Lindsay-Beale next visited Dr Lea on 4 October 2004 and had subsequent consultations through 2005 and 2006 addressing a number of health issues. [5] At a further consultation on 1 November 2007 Dr Lea recorded in her clinical notes: "(R) breast lump - same one in 7 yrs ago - was fibroadenoma then ? same one but it is getting bigger". Dr Lea carried out a breast examination. This showed a breast lump of 3 x 3 cm in the right breast and Dr Lea referred Ms Lindsay-Beale to the North Shore Hospital Breast Clinic. [6] On 28 November 2007 a mammogram and ultrasound scan were carried out confirming the presence of a lump in the right breast. Ms Lindsay-Beale was seen by a breast surgeon Dr Erica Whinerary Kelly on 23 January 2008 and was diagnosed with multifocal breast cancer. Surgery was recommended. [7] On 1 February 2008 Ms Lindsay-Beale underwent a mastectomy of the right breast and axillary node dissection. [8] Following the surgery Ms Lindsay-Beale met with medical oncologist Dr Mike McCrystal. In his report to the consulting surgeon, Dr Mc Crystal stated: She [Ms Lindsay-Beale] has been unlucky in terms of the requirement for surgery but on the face of it the tumour that was removed from the right breast seems to have very favourable prognostic features. It is Grade 1 with nodal involvement and hence the risk of dying of breast cancer in the next 10 years is in the order of 9% according to the adjuvant online programme. Tamoxifen would reduce this risk by 2.6% in absolute terms.... Ms Lindsay-Beale continued to have follow up treatment in subsequent years. On 11 July 2014, after an MRI scan, Ms Lindsay-Beale was diagnosed with metastatic breast carcinoma. Complaint to Health and Disability Commissioner [9] In 2016, Ms Lindsay-Beale lodged a complaint with the Health and Disability Commissioner ('HDC") in respect of Dr Lea's alleged delay in diagnosing breast cancer. In her letter to the HDC, Ms Lindsay-Beale stated that in 1999 while she was living in Germany, her doctor had discovered a lump in her breast. She was advised to keep an eye on it and to inform her GP when she returned to New Zealand. Ms Lindsay-Beale said that she brought the lump to the attention of Dr Lea in 2002, and that Dr Lea had assured her that it was a benign fibroadenoma which required no further investigation. Between 2002 and 2004, she reported this lump to Dr Lea at various times, and Dr Lea continued to reassure her "that it was likely nothing sinister". The lump continued to grow. [10] Ms Lindsay-Beale requested a mammogram and ultrasound referral at an appointment with Dr Lea on 13 April 2004, but this was not followed up by Dr Lea. Ms Lindsay-Beale suffered from a number of health issues and between 2004 and 2007 her health worsened causing her to stop work in 2006. Ms Lindsay-Beale stated that throughout this time she regularly saw Dr Lea and no referral was ever made by Dr Lea to check the breast lump. Dr Lea finally referred her for a mammogram and ultrasound following a consultation on 1 November 2007. It was Ms Lindsay-Beale's position that by that time she had had cancer for at least 6 years and had reported the lump to Dr Lea on a number of occasions. Ms Lindsay-Beale maintained that earlier detection would have caught the cancer before it became aggressive. [11] The HDC obtained a response from Dr Lea and then arranged to obtain a report from an independent general practitioner Dr David Maplesden. Dr Maplesden undertook a review of Dr Lea's clinical notes. He observed that Dr Lea's consultation notes were detailed in regard to the multiple symptoms with which Ms Lindsay-Beale presented between 2000 and 2007. He went on to state: "I can confirm that there is no reference to Ms Lindsay-Beale presenting symptoms of a breast lump until November 2007 at which point Dr Lea made an appropriate and prompt referral for specialist review and further investigation." [12] Dr Maplesden referred to the consultation on 13 April 2004 which he noted was the first reference to any breast issue. In setting out Dr Lea's response to the complaint, Dr Maplesden stated: Dr Lea confirms her first consultation with Ms Lindsay-Beale regarding any breast issue was 13 April 2004. Ms Lindsay-Beale was 33 years old at the time without any known factors increasing her risk of breast cancer. She requested screening mammography and ultrasound. Clinical examination was normal. Dr Lea was of the opinion that screening was not indicated at this point - it was not recommended under the national breast screening programme (Ms Lindsay-Beale was 33 years old at the time) and Ms Lindsay- Beale would not have been accepted for breast screening even if referred. [13] Dr Maplesden commented upon the breast screening programme and confirmed that screening was not recommended for average risk woman in Ms Lindsay-Beale's age group. He went on to say: In April 2004 Ms Lindsay-Beale requested a screening mammogram and ultrasound. There is no reference to complaint of current breast lump or other symptom, and there was no abnormality palpable on breast examination. Dr Lea's advice, that further assessment by way of imaging was not recommended at this point, was consisted (sic) with expected practice as discussed previously. Had Ms Lindsay-Beale insisted on having such imaging despite the risks being disclosed, Dr Lea might have offered the option of private referral. I have assumed Ms Lindsay-Beale was accepting of Dr Lea's advice in April 2004 and there is nothing in the clinical notes to suggest the issue was revisited prior to November 2007. It is certainly not possible to state unequivocally that had imaging been undertaken in April 2004, noting the diagnostic limitation of mammography in particular in younger women, that Ms Lindsay-Beale's cancer would necessarily have been diagnosed at that time. Dr Lea's notes do not indicate she was reticent about ordering further investigations or specialist opinions when there was clinical justification to do so. The scenario presented by Dr Lea and supported by her documentation suggests her management of Ms Lindsay-Beale was consistent with expected standards of care. The alternative scenario presented by Ms Lindsay-Beale is that she presented to Dr Lea on numerous occasions between April 2004 and November 2007 symptoms of a gradually enlarging right breast lump, and Dr Lea ignored this lump, reassured Ms Lindsay-Beale that not (sic) further assessment was required and failed to make any notes regarding the presence of the lump. If this was the case, it would represent a severe departure from expected standards of care. Standard expected management of a discreet breast lump is clinical examination, appropriate imaging and biopsy of the mass. [14] Having reviewed Ms Lindsay-Beale's clinical records and Dr Maplesden's report, the HDC decided not to take any further action on the complaint and advised Ms Lindsay-Beale accordingly in a letter dated 2 June 2017. Claim under Accident Compensation Act 2001 [15] A claim for a treatment injury was subsequently lodged with the Accident Compensation Corporation ("the Corporation"). The claim which was lodged by Ms Lindsay-Beale's general practitioner Carolyn Meade, listed the injury caused by the treatment as being "missed diagnosis of breast cancer leading to metastatic disease." [16] The Corporation investigated the claim obtaining medical records and copies of documents from the HDC investigation. A response was also obtained from Dr Lea. The Corporation issued its decision on 29 September 2017 declining cover for a treatment injury. In the treatment injury report, the Corporation set out its explanation for its decision as follows: ACC requested the HDC report which contained an independent GP report form Dr Maplesden. He advised that the care provided by the GP was consistent with expected standards of care. There is no documentation of any breast symptoms prior to 2004 and no indication for prophylactic investigations to be performed in 2004. ACC is unable to identify a failure in the provision of treatment. Any disease progression of breast cancer has been caused by the underlying health condition rather than treatment factors. In this case, there is no evidence of a physical injury caused by treatment or a failure in the provision of treatment. Application for Review [17] Ms Lindsay-Beale lodged an application for review in or about December 2017. For the purposes of that review, reports were obtained by Mr Hinchcliff on behalf of Ms Lindsay-Beale, from general practitioner, Dr Yvonne Le Fort, and Ms Lindsay-Beale's treating specialist, Dr McCrystal. Three questions were posed to the two medical practitioners. These questions were: [i] Is it more likely than not that there was a delay in treatment of Ms Lindsay-Beale's breast cancer? [ii] If there was a delay, approximately how long was it? [ifi] Is it more likely than not that a more timely diagnosis and treatment could have made an identifiable difference to Ms Lindsay-Beale's current condition? [18] Dr Mc Crystal replied as follows: 'I have received from Karen a request about her case for ACC review. I apologise for the delays reply. ... Firstly, there is a question of a possible delay in the treatment of Karen's breast cancer due to a lack of early diagnosis. Karen relates to me that she found a lump in her right breast in 2002, thought to have a low probability of representing cancer Over the space of two years, the lump had grown and was changing in consistency and a mammogram was requested by her (Karen tells me) but it was not undertaken. In 2008 she was referred to the Surgical Team at North Shore Hospital. According to the surgical letters, she was referred by Dr Jennifer Lea, her GP and was seen in this clinic on the 23 January 2008. The second question relates to a delay and how long it was. This is a difficult question because it is uncertain as to whether lumps felt in the breast where cancer is subsequently diagnosed, it could be unrelated issues within the breast tissue but can cloud the picture. In the surgical referral letter, it is stated by Dr Erica Whineray Kelly that there was at least a one-year history of a lump in the right breast that had been increasing steadily in size. The third question is would a more timely diagnosis in treatment (sic) made an identifiable difference to Karen's current condition. I think in general terms if a breast cancer is treated earlier, it has better prognosis. If a breast cancer had been there for a year or more, then unfortunately prognosis would steadily worsen. At the time she was reviewed in Surgical Clinic in January 2008, she had a 3cm clinical lesion with skin tethering at the 2o'clock position. The histology showed two confluent areas of breast cancer Grade 1 measuring 26mm in maximum diameter and there was a second deposit measuring 11mm. This had similar grade. None of the 18 nodes removed from the axilla were involved. There is a possibility that if a diagnosis had been made a year earlier then Karen may not have subsequently presented with metastatic disease although this is not 100% certain. Ideally with any lump (sic) the breast it would warrant assessment although in young woman (sic), mammograms can be defeated by breast density in terms of accurate assessment. In summary Karen had a breast cancer that had been present at least a year in the breast. It would be ideal to have diagnosed breast cancer earlier with some possibility of avoiding metastatic disease that we are dealing with today. [19] Dr Le Fort provided a brief undated response, stating: In reply to questions posed: [i] and [ii] From reviewing the clinical notes it does appear that there was a two year delay in diagnosis from the time of presentation of the breast lump and investigation of subsequent tissue diagnosis confirming malignancy. [ii] It is quite possible that the outcome may have been different with the earlier diagnosis as the disease is now metastatic and although slow in progression is considered terminal. [20] In a decision dated 6 July 2018, the reviewer determined that there was no failure by Dr Lea to treat or to treat in a timely manner, and dismissed the application. Appeal Case for Ms Lindsay-Beale [21] Mr Hinchcliff, submits that the principal issue is one of causation. Having reviewed the medical evidence, Mr Hinchcliff says that this evidence proves a delay in treatment causing injury because: [i] The early evidence describes a breast lump that was breast cancer. The breast cancer at that time was unlikely to have been metastatic, as there were no other symptoms; [ii] Medical staff had the opportunity to diagnose the problem earlier. The delay in diagnosis exacerbated Ms Lindsay-Beale's condition; and [ifi] Ms Lindsay-Beale's condition, as noted by Dr Yvonne Le Fort and Dr Mike McCrystal would have been different with an earlier diagnosis. [22] In summary, Mr Hinchcliff contends that a diagnosis could have been made earlier by Dr Lea, and a delayed diagnosis has caused injury to Ms Lindsay-Beale. Legal Issues [23] A claimant is entitled to cover for a personal injury that is a treatment injury suffered by that person. Relevantly, ss 32(1) and (2) and $33(1) of the Accident Compensation Act 2001 ("the Act") provide: 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; or lil) ..... 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 a) personal injury that is wholly or substantially caused by a person's underlying health condition; (b) personal injury that is solely attributable to a resource allocation; c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo operations. 33 Treatment (1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes- (a) the giving of treatment: (b) a diagnosis of a person's medical condition: c) a decision on the treatment to be provided (including a decision not to provide treatment): (d) a failure to provide treatment, or to provide treatment in a timely manner: [24] The issues which arise for determination in respect of Ms Lindsay-Beale's claim for cover are: [i] Whether there was a failure by Dr Lea to arrange for appropriate and timely investigations of Ms Lindsay-Beale's breast cancer prior to November 2007 and, if so, when did the failure first occur? and [ii] If there was a failure under [1], what personal injury did Ms Lindsay-Beale suffer as a result of the failure? Analysis (i) Was there a failure by Dr Lea? [25] In summary, Ms Lindsay-Beale says that at a number of consultations with Dr Lea prior to 2007 she had raised her concerns about a lump in her right breast. Ms Lindsay-Beale stated that the lump kept growing and that in 2004 she had requested that Dr Lea refer her for a mammogram and ultrasound. Despite mentioning the lump on subsequent occasions, it was not until November 2007 that a referral was finally made. Ms Lindsay-Beale says that Dr Lea failed to arrange for appropriate and timely investigations to be undertaken and maintains that if the cancer had been detected earlier it would have been caught before it became aggressive. [26] The onus is on Ms Lindsay-Beale and it is necessary for her to prove her claim on the balance of probabilities. The allegations relate to events which happened 10- 15 years ago. Ms Lindsay-Beale relies on her recollection of events. The only contemporaneous record of what occurred in that period are the clinical notes of Dr Lea. [27] These notes were carefully reviewed by Dr Maplesden as part of the HDC investigation. The first consultation at which breast issues were raised was that held on 13 April 2004. Ms Lindsay-Beale sought a referral for a mammogram and ultrasound. Dr Lea undertook an examination and found no lump present in either breast. At that time Ms Lindsay-Beale was 33 years old and following her examination, Dr Lea was of the opinion that screening was not indicated. Dr Maplesden considered that Dr Lea's advice was consistent with expected practice. He observed that screening was not recommended for a woman of that age under the national breast screening programme and Ms Lindsay-Beale would not have been accepted even if she had been referred. [28] Dr Lea's notes record that Ms Lindsay-Beale first presented with a lump in her right breast on 1 November 2007. At that point Dr Lea made a prompt referral to North Shore Breast Clinic for a specialist review and further investigation. [29] It was Ms Lindsay-Beale's evidence that she told Dr Lea about the lump on a number of occasions. As Dr Maplesden observed, Dr Lea made detailed notes of the health issues discussed at her various consultations with Ms Lindsay-Beale. Having regard to Dr Lea's careful practice, there is no basis upon which to infer that at a number of consultations over a 5-year period, Dr Lea failed to record any mention by Ms Lindsay-Beale of a breast lump. [30] Mr Hinchcliff referred to entries made on the cover page of Dr Lea's notes as supporting Ms Lindsay-Beale's evidence that Dr Lea knew of the breast lump earlier than November 2007. Ms Lindsay-Beale confirmed that this issue had not been previously raised and accordingly, Dr Lea's comments on these entries have never been sought. In any case, it is unclear whether the way in which the entries have been recorded has any significance, particularly having regard to the detailed clinical notes that follow which are clearly in chronological order. Taking these factors into account, I do not consider that any weight can be attached to these entries. [31] Ms Lindsay-Beale relies on the reports provided by Drs Le Fort and McCrystal set out above. Dr Le Fort refers to a two-year delay in diagnosis from the time of presentation of the breast lump but does not identify the particular consultation at which Ms Lindsay-Beale presented with the breast lump (if before 1 November 2007). Dr Le Fort does not refer to Dr Lea's consultation notes and does not identify any specific failure in treatment by Dr Lea. [32] Dr McCrystal also does not offer any opinion on whether there was a failure by Dr Lea. He suggests that there was a "possible delay". Furthermore, it is evident that he relied upon a medical history provided by Ms Lindsay-Beale and did not review Dr Lea's clinical notes. I agree with Mr Tuigeregere, counsel for the Corporation, that in order to offer a cogent opinion, it was necessary for Dr McCrystal to have reviewed Dr Lea's clinical notes. [33] In the absence of any other contemporaneous records, I rely on Dr Lea's clinical notes. I am satisfied that Dr Lea's notes do not disclose any failure by Dr Lea to provide treatment to Ms Lindsay-Beale or to provide treatment to her in a timely manner. For the reasons discussed above, I accept that at the time of the consultation on 13 April 2004 no breast lump was discovered by Dr Lea and the approach adopted by her was within expected standards of care. The breast lump was first charted by Dr Lea on 1 November 2007, and upon discovery of the lump, Dr Lea acted promptly and referred Ms Lindsay-Beale to the North Shore Breast Clinic for investigation. [34] Accordingly, on the evidence before the Court, I find that there has been no failure in the provision of treatment by Dr Lea to Ms Lindsay-Beale. In reaching my view, I wish to record my sympathy for the situation now faced by Ms Lindsay-Beale and to acknowledge her perseverance in pursing her complaint before the Health and Disability Commissioner and in bringing this claim for compensation. (ii) Causation? [35] The issue in relation to causation is whether earlier diagnosis and treatment would more likely than not have avoided the diagnosis of metastatic disease in 2014.' It is not necessary for me to consider this issue in view of my finding that there was no failure to treat. However, I make the following observations. [36] Both Dr Le Fort and McCrystal considered whether earlier diagnosis and treatment of the breast cancer would have resulted in a different outcome. Both answered in equivocal terms. Dr McCrystal stated that there was a possibility that if a diagnosis had been made a year earlier then Ms Lindsay-Beale may not have subsequently presented with metastatic disease. Dr Le Fort considered that it was "quite possible" that the outcome may have been different but did not go further in offering any explanation as to what that outcome may have been. Cumberland v Accident Compensation Corporation [2014] 2 NZLR 373. [37] Importantly, the existence of a possibility is not sufficient to establish on the balance of probabilities that the diagnosis on metastatic disease was caused by any delay in diagnosis and treatment rather than the underlying cause of breast cancer. Decision [38] For the reasons detailed above, the appeal is dismissed. There is no issue as to costs. AA Sinclair District Court Judge Solicitors: Medico Law Limited, Auckland for the Respondent