Orange v Accident Compensation Corporation (Treatment Injury)

IN THE DISTRICT COURT AT HAMILTON [2017] NZACC 110 ACR 268/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 149 OF THE ACT BETWEEN KERI-ANNE ORANGE Appellant AND DENT COMPENSATION CORPORATION Respondent Hearing 21 August 2017 Appearances: The Appellant in Person A Miller for the Respondent Judgment: 7 September 2017 RESERVED JUDGMENT OF JUDGE AA SINCLAIR [Treatment Injury Section 32 Accident Compensation Act 2001] Issue [1] The issue in this case is whether the appellant, Ms Keri-Anne Orange, is entitled to cover for a treatment injury which she says she suffered as a consequence of a decision not to remove her appendix during surgery in 2012. [2] The Commissioner contends that the medical evidence before the Court is unequivocal that Ms Orange's abdominal pain and/or appendicitis was not caused by any treatment/lack of treatment. Background [3] Ms Orange had suffered abdominal pain since 2010. In June 2012 she underwent a diagnostic laparoscopy to assess whether there were any signs of endometriosis. Ms Orange's appendix was observed to be normal with some periappendiceal adhesions "possibly due to previous mild appendicitis". [4] Ms Orange continued to experience abdominal pain. She underwent a sigmoidoscopy in July 2013 and colonoscopy in 2014. Nothing abnormal was reported. Ms Orange was diagnosed as likely having irritable bowel syndrome. A Meckel's diverticulam scan was performed in August 2014. The scan showed a likely Meckel's diverticulam. Ms Orange met with Mr Rowan French a general surgeon in January 2015. Mr French reported: We have had a long discussion about the nature of her pain and the contribution of varying factors. I note that there was said to be some periappendiceal adhesions at the original laparoscopy although the appendix was not removed. Her symptoms do not sound typical for a Meckel's diverticulam. It certainly does not sound like she is having any bouts of inflammation but it is possible that she is getting some degree of obstruction or intussusception and it is also possible that she is getting some bleeding if there is actopic gastric mucosa as suggested by the Meckel's scan. It is also however quite likely that the pain is due to irritable bowel syndrome and there is no contribution at all from either the appendix or the Meckel's diverticulam. [5] On 15 April 2015 Mr French performed a laparoscopy to remove the appendix and to re-sect the bowel affected by the Meckel's diverticulam. The operation findings were recorded as being: Pelvis, normal. Ovaries/tubes, normal. Appendix, elongated and had normal appearance - removed. No Meckel's diverticulam or Crohn's disease seen... Histopathology of the appendix was reported as follows: Macroscoopic: The specimen consists of an appendix measuring 90x8mm... the serosa is congested. The mucosa is necrotic... Microscopic: Sections show early acute appendicitis. A mild serosal reaction is identified. Diagnosis: APPENDIX, APPEPENDECTOMY - ACUTE APPENDICITIS. MILD SEROTIS. [6] In June 2015 Ms Orange's GP made a claim on her behalf for cover for a treatment injury. The injuries caused by the treatment are recorded as being "chronic abdominal pain since 2010 with chronic appendix disorder [dx] in 2012 but appendix not removed until April 2015". The treatment alleged to have caused the injury is said to be the "failure to treat the appendix". [7] Following receipt of Ms Orange's claim, the Corporation put a number of questions to Mr French with regard to Ms Orange's condition and treatment. Mr French answered as follows: 1) What is the most likely cause of Ms Orange's abdominal symptoms since 2010? It is impossible to say. On reviewing notes the symptoms have varied, sometimes in the left iliac fossa, sometimes on the right, sometimes (for example when I reviewed her) more across the mid-abdomen. I think its extremely unlikely that symptoms of such duration and variability were due to the appendix. 2) What were the findings of the 2015 surgery? Essentially every (sic) looked macroscopically normal. There was not Meckel's diverticulam. The appendix was long and lying behind the caecum, but was otherwise normal. I didn't describe any abnormal adhesions or signs of previous inflammation. The remainder of the examination was also normal. 3) Was the decision not to remove the appendix in 2012 appropriate? There was a note about some "periappendix adhesions" in the discharge summary after the 2012 laparoscopy, but these aren't described in the operation note from 2012. Even if there were some adhesions at the time, the symptoms were not typical for appendicitis and there was no acute inflammation. It would NOT be usual for a gynaecologist to remove the appendix in this situation. If we were actively entertaining the diagnosis of intermittent appendicitis and we had consented her beforehand, then it may have been reasonable. Based on what I can ascertain from the symptoms back in 2012, the symptoms were far more typical of endometriosis and it was for this reason the original laparoscopy was done. [8] Mr French went on to state that when a patient presents with symptoms suggestive of appendicitis and a laparoscopy is done specifically to look for appendicitis then in most cases, the appendix will be removed even if it looks normal. When a laparoscopy is being done for other reasons, particularly for nonspecific lower abdominal pain to look for endometriosis, it is not standard practice to remove the appendix. [9] Mr French was also asked whether an appendix can have low grade inflammation for years causing pain. Mr French opined that there is little evidence that "grumbling" or chronic appendix appendicitis occurs. Further, he considered that there was little evidence that the appendix can cause daily stabbing pains in different parts of the abdomen for two years or more. He went on to observe: "I understand that Keri-Anne's symptoms have improved now and I am happy for her, but I don't think this is necessarily proof that the appendix was causing all her problems". [10] A report was obtained from Dr Mary Vant who performed the laparoscopy in June 2012. She noted: The laparoscopy was performed on 11 June 2012. No endometriosis was seen. Photographs were taken at the time of surgery including a normal appearing appendix. Some periappendiceal adhesions were noted and a previous mild appendicitis queried. This is not documented in the operation note but is recorded in the note written at the time of surgery and in the discharge summary. With the normal appearing appendix I did not think it was necessary to remove the appendix. I would not routinely remove a normal appendix at laparoscopy. If the appendix appeared abnormal I would request an opinion from a general surgeon while the patient was under anaesthetic. 11] The Corporation declined the claim on 18 August 2015 on the basis that there was no evidence of a physical injury occurring as a result of any treatment or treatment decision. [12] The Corporation obtained a further report (dated 24 August 2015) from Dr Graham Dickson the clinical director of gastroenterology at Waikato Hospital. Dr Dickson considered that Ms Orange's symptoms were typical for irritable bowel syndrome and chronic pelvic pain syndrome. He opined: Although the histology has reported acute appendicitis it does say EARLY acute appendicitis and MILD serositis. Given that it looked normal at surgery it seems unlikely that this was the cause of her symptoms. [13] Ms Orange filed an application for review. Following the review hearing on 2 December 2015 the Corporation's decision to decline cover was quashed and directions were issued to obtain further information. The Reviewer directed that an independent specialist report be obtained. In making this direction, she observed that it was the strong temporal connection between the removal of the appendix and the resolution of Ms Orange's symptoms that persuaded her further investigation should occur. [14] The Corporation instructed a general surgeon Dr Pat Alley to provide an opinion. In a report dated 10 February 2016 Dr Alley stated: 1. The relevant pathology of appendicitis. Chronic or "grumbling appendicitis" is an extremely rare entity so ascribing chronic abdominal pain to this condition is unusual. In the rare cases the pain pattern is very similar between attacks. However the pattern of relapsing appendicitis is well recognised in about half the patients presenting with established acute appendicitis will get the history of intermittent abdominal pain almost always either central or in the right iliac fossa (where the appendix is situated). Half a day away from school or work and feeling slightly unwell are common stories of these events which last less than 24 hours usually. Where these presentations differ from the case under review is that the symptoms resolved completely between the episodes of abdominal pain and then the patient is perfectly well. The histological changes evident in the appendix were very mild and at the time of surgery there is no mention made that she was in fact suffering any pain. The second laparoscopy was intended to diagnose rather than treat. The histology did show "early acute appendicitis" there is no mention of chronic appendicitis which has a particular histological appearance. Chronic appendicitis has therefore been excluded in this case. 2. Potential causes of abdominal pain in the case under review. Chronic abdominal pain is a common problem in the community and securing a robust diagnosis can be extremely difficult. The eliciting of a history is the first step in getting to diagnostic certainty. Again as this case typifies the pain does not accord to a recognisably pattern and hence a diagnosis based purely on the history given is not possible. Physical examination including endoscopy often shows little abnormality. Finally as this case exemplifies a wide range of diagnostic tests may show no or little abnormality. Ms Orange has been described as having pain in many situations and of variable duration and intensity. In none of the presentations could the pain be classified as typical of appendicitis - either the acute form or the much rarer chronic form. 3. If the pain is not as a result of appendix pathology then what is it due to? It is absolutely necessary to point out that Ms Orange has real pain - by no means am I attempting to deny this. Irritable bowel syndrome is still the most likely diagnosis in this case. The fact that the pain has been refractory to standard pain relief would not exclude that diagnosis. Other diagnoses are possible and should the pain continue then further investigations with possibly a repeat of some done already may be necessary. However in conclusion the duration of symptoms their variability and the normality of investigations over a three-year period makes it impossible to ascribe the appendix as the prime cause of her pain. In accepting that her symptoms are now much improved following appendicetomy this by means confirms that the appendix was the cause of her problem. Therefore the non-removal of her appendix in 2012 cannot be classed as a treatment injury. [15] Ms Orange was also referred to another general surgeon Mr Bernd Grunewald. Mr Grunewald was asked whether it was likely that Ms Orange was suffering from symptoms from her appendix or adhesions about the appendix, at laparoscopy in 2012. His answer to this question was "no". In his report of 17 March 2016 Mr Grunewald stated that he had come to this conclusion "because of the following facts and observations": 1. Ms Orange's symptoms were not consistent with any pathology originating from the appendix like recurrent acute appendicitis or chronic appendicitis. 2. Her operation note from 2012 does not mention the appendix or periappendiceal adhesions and the appendix appeared to be completely normal in the photograph taken during the procedure. When the appendix was removed in April 2015 it was found to be very long and partly retrocaecal (which is a normal anatomical variation) but no macroscopic abnormality was observed. No adhesions were mentioned. The lateral peritoneal reflection had to be divided but this is part of the normal anatomy and does not indicate previous inflammation. 3. There are some case series in the literature of women who suffered from chronic ower abdominal pain and whose symptoms improved following removal of the appendix. Most of these women however had chronic right sided pain and some of them also had endometriosis. I could not find any case series that consist only of women with diffuse lower abdominal pain (not localised to the right side) who underwent appendicectomy in the absence of any other pathology. There are no randomised controlled trials. Performing an appendicectomy in this situation is not standard treatment. It may be considered if pain persists and no other treatment has helped, but this should be called "experimental"... 4. One case series of young patients (aged 5-19) with chronic right sided abdominal pain reported that the microscopic changes commonly seen in the removed appendix specimens have also been demonstrated in appendices removed incidentally in patients without chronic pain. The conclusion was that 'caution therefore should be applied when interpreting the significance of histological changes seen" ... 5. The histology report of the removed appendix is rather short and the microscopic description only contains one line "Sections show early acute appendicitis. A mild serosal reaction is identified". The pathologist does not give us any detailed description of the microscopic abnormalities. The specimen could be re-examined in order to provide further information. I wonder if these unspecified changes could have been caused by surgical trauma However, whatever these changes were, they are of little importance in this case. (see point 4). There is no evidence that a treatment injury has occurred. 16] The Corporation went back to Mr Grunewald asking if the macroscopic description that "the serosa of the appendix was congested and the mucosa was necrotic" altered his opinion. He stated: The macroscopic description that "the serosa of the appendix was congested and the mucosa was necrotic" is a subjective impression of the pathologist's naked eye examination of the fixed specimen. This is not a reliable assessment. The microscopic description states that "sections show early acute appendicitis and a mild serosal reaction". There is no mention of necrosis. The pathologist does not explain how he came to the diagnosis of early acute appendicitis. Early acute inflammation of the appendix is defined by focal true mucosal ulceration with infiltration of polymorphs. Features of established acute appendicitis are widespread mucosal ulceration, transmural polymorph infiltrate, often with mural necrosis, and a serosal inflammatory reaction. Pathologists don't always agree what constitutes early acute appendicitis. An audit review of 100 appendix specimens by three experienced pathologists showed that there was disagreement in 27 cases. Most of the disagreements (18 out of 27 cases) involved the use of the words "normal", "early", "subacute" and "resolving", that is, there was no definite evidence of any established acute inflammation. Early", "subacute" and "resolving" changes within the appendix are subjective interpretations of minor degrees if (sic) inflammation. These changes can also be seen in patients with no clinical symptoms. I already mentioned this is my (sic) previous report.... In summary, the pathologist's macroscopic description of the appendix is subjective and not confirmed by microscopic findings. The microscopic findings of "early acute appendicitis" are often subject to interpretation and often have no clinical relevance as these findings can also be seen in asymptomatic patients. There is no evidence that Ms Orange's chronic abdominal pain was caused by recurrent appendicitis. 17] At the subsequent review hearing, the Reviewer dismissed the application finding that the available medical evidence did not establish on the balance of probabilities, that Ms Orange had suffered a personal injury caused by treatment Or the failure to provide treatment. Relevant Statutory Provisions [18] In order to establish cover for a treatment injury Ms Orange must satisfy the requirements of s 32(1) of the Accident Compensation Act 2001 ("the Act"). This section provides: (1) Treatment injury means personal injury that is - (a) suffered by a person - . . . (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; . .. and (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:; . . . (3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury. [19] Treatment is defined in s 33 to include a failure to provide treatment, or to provide treatment in a timely manner. Analysis [20] Ms Orange contends that the treatment decision not to remove her appendix in 2012 caused her a personal injury in the form of abdominal pain between 2012 and the eventual removal of her appendix in 2015. In this period, Ms Orange says that she suffered from recurrent or chronic appendicitis and that the infections and/or adhesions that developed in her appendix, constitute a personal injury. (21] It was apparent at the hearing that Ms Orange has undertaken considerable research on the topic. She was firmly of the view that the ongoing abdominal and bowel symptoms which she suffered were as a result of appendicitis. She told the Court that she had requested the removal of her appendix and pointed to the disappearance of the symptoms when her appendix was removed in 2015. [22] However, the medical evidence set out at length above, does not support Ms Orange's contention. In particular, I note: a) -The medical evidence was to the effect that there were no clinical indications for removing Ms Orange's appendix during the laparoscopy in June 2012. Some periapppendiceal adhesions were noted and a previous mild appendicitis queried. However, the appendix appeared normal; b) Both Mr French and Mr Grunewald stated that it would not be usual for a gynaecologist to perform an appendectomy where the laparoscopy was performed to look for endometriosis; c) Dr Alley opined that the pain described by Ms Orange (occurring in many situations and of variable intensity) could not be classified as typical of appendicitis (either the acute form or much rarer chronic form). Section 33(1)(d) of the Accident Compensation Act 2001. Mr French also observed that there was little medical evidence that the appendix can cause daily stabbing pains in different parts of the abdomen for two years or more. Mr Grunewald considered that Ms Orange's symptoms were not consistent with any pathology originating from the appendix. Dr Dickson also considered that the appendix was unlikely to have been the cause of Mr Orange's symptoms. d) With regard to the 2015 surgery, Mr French described the appendix as looking normal without abnormal adhesions. While the microscopic evidence described "early acute appendicitis", Dr Alley stated that the histological changes were "very mild"; e) In regard to the histology report of the removed appendix, Mr Grunewald considered that the macroscopic description of the appendix (the serosa of the appendix was congested and the mucosa was necrotic) was a subjective observation by the pathologist and was not a reliable assessment. As well, it was not confirmed by microscopic findings. Mr Grunewald opined that the microscopic findings of early acute appendicitis "often have no clinical relevance as these findings can also be seen in asymptomatic patients"; Dr Alley observed that while Ms Orange's symptoms had much improved following the appendectomy, "this by no means confirms that the appendix was the cause of the problem". Likewise, Mr French said that while Ms Orange's symptoms were said to have improved, "he did not think this was necessarily proof that the appendix was causing all her problems". [23] It is acknowledged that there is a temporal connection between the removal of Ms Orange's appendix and the disappearance of her abdominal symptoms. However, as Dr Alley and Mr French noted, such a connection is not sufficient to establish the requisite causal link between the stated physical injury and treatment/lack of treatment. There may be some uncertainty as to what actually caused Ms Orange's abdominal symptoms but I am satisfied that there was clear agreement amongst the medical specialists that they were not caused by appendicitis. [24] In these circumstances, I find that Ms Orange's claim for treatment injury arising from the non-removal of her appendix in 2012 is not supported by the evidence and the Corporation's decision to decline the claim was correct. Decision [25] The appeal is dismissed accordingly. There is no issue as to costs. A A Sinclair District Court Judge