Watt v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. /87 /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 KEVIN WATT DCA 58/95 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of August 1998 APPEARANCES: Mr K Watt in person Mr C Bright for respondent RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether the appellant suffered personal injury by medical misadventure being medical mishap as a consequence of an operation he underwent in 1977 for a shortening of the left femur. 2 This appeal is in fact the resumption of the hearing of an appeal which was first heard on 14 December 1995 before His Honour Judge J W Imrie where His Honour made certain rulings and findings but then adjourned the appeal part heard for further medical evidence to be obtained. In His Honour's decision (14/96) His Honour found that there was no evidence of medical error and in so far as medical mishap was concerned His Honour stated: "Professor Gray does not deal with the cause of the pain in his report. In his report dated 23 December 1993 Dr Chew says there was tenderness about mid shaft of the left femur on firm palpitation. In its report the medical misadventure advisory committee said when it dealt with medical mishap that there was no evidence to support a causal link between Mr Watts' leg pain and the medical procedure he underwent in 1977 to shorten his left femur. However when dealing with medical error it referred to: "A painful left thigh secondary to surgery to shorten the left femur." I consider that the Corporation should have Mr Watt examined by a suitable medical advisor who can advise on the question of whether the pain that Mr Watt has in his left leg results from the operation, and if so, whether it is an adverse consequence of the operation which is rare. There appears to be no doubt that it is an adverse consequence which is severe. On that basis the appeal is adjourned part heard." Pursuant to the direction of His Honour the Corporation referred the appellant to Mr OR Nicholson, Orthopaedic Surgeon, and in a report to the Corporation following his examination of the appellant, Mr Nicholson advised, inter alia: "The operation to shorten the left leg and to equalise the leg lengths has been successful. Although Mr Watt makes much of the discomfort he experienced when walking on stairs a few days after the operation this could not give rise to anylong term ill affects. The decision of Judge J W Imrie notes that a report from Dr C K Chew said that Mr Watt still had a 2-3cm leg length discrepancy. 3 It is likely that the leg lengths were measure with a tape measure when Mr Watt was lying. This is well recognised as being inaccurate. A more accurate measurement is obtained by having the patient standing and checking whether the pelvis is legalby palpation of the top of the iliac crests. If there is a leg length discrepancy wooden blocks are placed under the short leg until the pelvis is level. I have commented on other occasions that a tailor does not measure leg lengths with his client lying Mr Watt's abnormal gait is due to the subnormal hip on the right side. The normal lever arm is lost as a result of the abnormality in the hip joint and as a result the abductor muscles of the hip cannot stabilise the joint and he dips on walking. The thickening of the femur at the osteotomy site is of the degree not uncommonly seen following an osteotomy. Although there is some heterotopic bone projecting medially this does not interfere with thigh muscle function and it is to be noted that there is a full range of movement of the knee. Mr Watt commented that in his occupation as a butcher he had seen animals who had broken legs and the muscle over the fracture site was abnormal and had to be thrown away - it may well not have looked normal but at the same time was likely to have functioned normally. The procedure carried out to shorten the left leg was done by a well accepted technique which has been practiced for many years - certainly there is no question of it being experimental or of Mr Watt being a guinea pig. The symptoms experienced over the outer aspect of the hip are almost certainly due to some irritation of the soft tissues by the projecting upper end of the rod. The rod is always left projecting a little and indeed in this case it is projecting rather less than usual. The small amount of heterotopic ossification immediately above the rod is a common finding and does not in itself give rise to symptoms. In the absence of any tenderness on palpation I do not consider that the symptoms experienced are sufficient to warrant removal of the rod although this would relieve these symptoms. It is further my opinion that removal of the rod would not affect the pain of which he complains at the mid thigh level." 4 Further clarification was sought from Mr Nicholson regarding matters contained in his report and in particular Mr Nicholson was asked to address the following questions. 1. Is the pain experienced by Mr Watt in his left thigh a consequence of either the operation he underwent, or the consequent thickening of his left femur? 2. If you your answer to question 1 is "yes", do you believe that the pain experienced by Mr Watt is a consequence that would occur in 1% or less of such operations? Mr Nicholson replied on 22 February as follows: "1. There is not even a remote possibility that the severe pain of which he was complaining when he was seen by me on 15.8.96 is a consequence of the operation or of the thickening of the femur at the operation site. 2. The words used by Mr Watt in describing his symptoms are not consistent with any condition having an underlying organic basis or which could be explained either on the basis of the subnormal hip on the right side or the operation on the left leg." In his submissions to this court Mr Watt was adamant that the pain, which he describes as constant, which he currently experiences in his left leg, is attributable to the surgery of 1977 and its after effects. However he could not produce any expert evidence to support his contention and simply relied on his understanding of bones and such like from his experience as a former butcher. Whilst he did not accept the opinion expressed by Mr Nicholson, he could not provide anything which could establish a contrary view. The first issue which His Honour Judge Imrie required to be addressed was whether the pain that the appellant was experiencing in his left leg resulted 5 from the operation and the evidence of Mr Nicholson is that it clearly is not. That of itself would be sufficient to determine the issue of whether the appellant is suffering from personal injury being medical mishap. The evidence is clear that the present pain and disability which the appellant suffers from is not attributable to the treatment by a registered health professional as would be required for it to be considered medical misadventure. In addition to that however Mr Nicholson's further advice is that the symptoms which the appellant displays are not rare as is required under the Act and even if they could be attributable to the treatment of 1977 the appellant could not succeed on the basis that the consequences are not rare. For the foregoing reasons this appeal cannot succeed and the appellant cannot establish that he has suffered personal injury by medical misadventure. This appeal is therefore dismissed. DATED this day of September 1998 . Sea the MJ Beattie District Court Judge watts.doc