Stade v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 273 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LORRAINE GWENYTH STADE of Upper Hutt Appellant (Appeal No. DCA 140/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 6th day of November 1997 APPEARANCES Mr A D Ford for appellant Ms L M Rice for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under the Act by reason of having suffered a medical misadventure. . The background which gives rise to the claim is that the appellant underwent gastric bypass surgery in June 1986 as a result of which she suffered two complications, including a deep venous thrombosis with pulmonary embolism. In 1987 she was referred to Mr Stubbs, a gastrointestinal surgeon, in relation to an upper 2 gastrointestinal bleed relating to an anastomotic ulcer. The appellant was next seen by Mr Stubbs in October 1993 suffering severe epigastric pain which had been present for some two or three months. On 18 November 1993 Mr Stubbs carried out a gastroscopy and found a partial staple line dehiscence and peptic ulceration at the site of the previous gastric bypass. In August 1994 the appellant lodged a claim with the respondent that she had suffered a medical misadventure arising out of the surgery performed in November 1993. The respondent requested Mr Stubbs to provide details of the operation and its outcome so that the appellant's claim could be considered. In his report of 27 October 1994, Mr Stubbs stated: "It seemed likely to me the explanation for these events was that she had partial staple line dehiscence related to her previous gastric bypass. The consequence of this is the formation of peptic ulceration at the anastomosis and usually a degree of weight gain. She was distressed both by her pain and the thought that her weight was going to increase with time and was keen for revision surgery if that was possible. I gastroscoped her on the 18th of November and confirmed the presence of partial staple line dehiscence and peptic ulceration at the site of her previous gastric bypass. We discussed in detail her options. In a sense, medical therapy for her peptic ulceration had already failed in spite of significant attempts and she had had at least one previous GI bleed from her ulcer and what was perhaps of equal importance to her at the time was that her weight was beginning to increase and the prospects for further weight gain were very real. Together, after thorough discussion of the risks related to revision gastric bypass surgery, we agreed to proceed. Mrs Stade was thoroughly aware that not only was gastric bypass surgery potentially hazardous on the first occasion, but I made it quite clear to her that the risks were somewhat greater in the setting of revision surgery. In particular these related to the possibility of leak from the stomach and/or new anastomosis because of the difficulties in mobilising the previously operated stomach. In her case it was likely to be additionally difficult because of the previous anastomotic leak. We discussed that the ideal way to manage things would be to perform a gastric transection at the site of the new staple line. This would reduce to the smallest possible level any future prospect of staple line disruption and return of the present events. I indicated that I would only be prepared to do this in the event the procedure was proceeding reasonably smoothly because the risks were certainly somewhat greater. In my own mind I would have thought of anything up to a 10% chance or conceivably greater of leakage from the stomach staple line and/or new anastomosis. Both she and her husband were well acquainted with the possibility of this risk at the time and chose to proceed." The remedial surgery was carried out on 8 December 1993 and in the course of that . the spleen was damaged with the result that it was removed. The appellant suffered a sudden onset of chest pain on the fifth day after the operation but then appeared to settle. However on 20 December she developed a fever but investigations did not disclose a leakage and a chest x-ray showed air under her diaphragm at which time a 3 diagnosis of a leak or perforation was made. A laparotomy was performed on 21 December which disclosed an infection but no obvious leak. Subsequently, further investigations confirmed that there was a leak and that full recovery would take some time. After the appellant had lodged her claim with the respondent and it had received the report from Mr Stubbs, the file was referred to the Medical Misadventure Advisory Committee which advised that the claim should be declined because it did not satisfy the criteria of either medical error or medical mishap as defined in s.5 of the Act. The appellant was notified on 1 May 1995 that her claim was declined and she applied for a review of that decision. At the review hearing the appellant and her husband stated on oath that Mr Stubbs had not provided her with information regarding the full risks of surgery and in particular had failed to explain to her the risk of leakage which might have the potential for life threatening hazards. In his decision the review officer acknowledged that it had been accepted by both parties that the test of rarity had not been met and the only issue was whether medical error had occurred by reason of the alleged failure by Mr Stubbs to obtain the informed consent of the appellant to the operation. He acknowledged that there was a conflict in the evidence between Mr Stubbs and the appellant and her husband and considered that he should accept Mr Stubbs' explanation. For that reason the application was declined. It is against that decision which the appellant now appeals. In the notice of appeal the appellant alleges that the hearing officer failed to apply the principles of natural justice in that he made findings of the credibility against the appellant without giving her the opportunity to answer those findings. Further, it is alleged that there was a further breach of natural justice in that the hearing officer on the question of credibility preferred the written evidence of Mr Stubbs, who was not available for cross-examination, in preference to the sworn testimony of the appellant and her husband. The respondent requested the registrar to extend the time for filing submissions to enable further evidence to be obtained from Mr Stubbs. The appellant objected to that proposal. I permitted the respondent to adduce in evidence a further report from Mr Stubbs dated 5 September 1997 on the basis that it was simply accepted as a statement and nothing more. The respondent submitted that the file should be referred back to the review officer for a further review hearing to enable Mr Stubbs to give evidence on the question of what information he supplied to the appellant before the operation took place and it was my initial view that that would have been the appropriate procedure. However, Mr Ford objected to that proposal and in addition noted that the appellant's solicitor had written to Mr David Wilmhurst, a client officer at the respondent's office on 20 March 1996 enquiring whether Mr Stubbs would be made available for cross-examination at the review hearing. While Mr Ford recorded a copy of that letter in his written submissions and has stated that 4 no reply was received, the respondent's file, which I have, does not appear to include a copy of that letter. However, the respondent has not denied its existence. Mr Ford submitted that the Court could take notice of the fact that the respondent had been put on notice that Mr Stubbs could be called to be cross-examined at the review hearing but did not do so. Accordingly, I proceeded to hear submissions from both counsel. Mr Ford submitted that on the hearing of an appeal from the decision of the review officer this Court has the power to confirm, modify, or revoke the decision appealed against or to dismiss the appeal. He submitted further that the Court has the power to substitute any decision which ought to have been given by the review officer whose decision is appealed from. Mr Ford submitted that in the interests of justice it would not be proper for the matter to now be referred back to the same review officer to reconsider his earlier findings. He submitted in support of this that Judge Ongley in Sutherland v ARCI Corporation, (108/95) noted: "It is important also that where the truthfulness of a witness is directly challenged, as in this case, that the witness is questioned about the issues. The Corporation alleged fraud and its representative should have been briefed and cross-examined the claimant at the hearing. In the absence of cross-examination, the evidence of the claimant could have been accepted by the review officer as not having been challenged, and given due weight." Mr Ford submitted that as that decision was delivered on 8 September 1995 it should have alerted the respondent to the dangers of making findings on credibility without cross-examination or relevant questioning. Mr Ford submitted that I should hear the appeal and give my own decision on the record available to me. Mr Ford submitted that while Mr Stubbs had raised the question of a "risk of leakage" with the appellant, she denied that and denied also that there had been no leakage following the 1986 operation. Mr Ford was concerned at the review officer's finding: "Mr Stubbs goes on in his report to describe the ongoing complications suffered by Mrs Stade which led to her transfer to Wellington Hospital on 27 December 1993 for financial reasons. Mr Stubbs agrees that Mrs Stade suffered a serious complication from her surgery but notes that it is an accepted complication and was discussed with Mrs Stade." Whereas the particular reference in Mr Stubbs' report states: "As outlined in this report, the possibility of a leak and problems related to that was thoroughly discussed prior to her surgery and is certainly an accepted complication of this sort of surgery. Both she and her husband were well aware of that though they may not have fully appreciated the precise extent of trouble she might have been in. Nevertheless the risk of leakage was explained and it was also 5 explained that this could lead to a life threatening situation and the possibility of death." In her letter to the Medical Misadventure Advisory Committee dated 27 January 1995 issued before she received legal advice the appellant had given her explanation of what had occurred between Mr Stubbs and herself prior to the operation and she said: "I clearly recall the discussion between Mr Stubbs and myself regarding the gastric transection. He emphasised the difficulty of this procedure and that it would be performed only on the condition that the operation was proceeding smoothly. I stress that there was no discussion of the risk of leakage and the potential life threatening hazards. There is a wealth of difference between an operation that is difficult to perform and an operation that carries a considerable risk to life. There was no proper meeting with my husband and myself to discuss this risk and, contrary to Mr Stubbs's statement, I maintain that there was no attempt to acquaint us with any possibility of abnormal risk. Instead, because of my good state of general health at that point, my stay in hospital was expected not to exceed 10 days." Mr Ford submitted that there was support for the appellant's claim in the report from the Medical Misadventure Advisory Committee in which it was observed: "Considering the difficult and risky nature of the surgery it would seem most likely that Mr Stubbs would have mentioned the possibility of complications, however the serious nature of these potential complications was not conveyed to the claimant and her husband." Mr Ford submitted that in his subsequent report of 5 September 1997 Mr Stubbs had become more guarded in his statements and did not directly say that he had told or explained certain matters, but merely said "I would certainly have indicated that the risk was greater than for first time round operations". On the question of causation, the appellant had stated in her evidence that she would have seriously considered not going through with the operation had she been aware that the complications could have been life threatening. This evidence was confirmed by the sworn evidence of the appellant's husband. After I had heard Mr Ford's submission Ms Rice requested leave to file written submissions which was granted. Ms Rice supports her original application that the matter should be referred back for a further review. As there is a direct conflict between the appellant's evidence and that of Mr Stubbs, Ms Rice submitted that the material risk of which the appellant claimed she should have been informed was "that leakage could lead to a life threatening situation and the possibility of death". She submitted that this is at variance with the stance taken by the appellant at the review hearing in which the material risk appeared to be "post-operative leakage". She submitted that the material risk in question was the risk of leakage and that the other complications which resulted from that leakage and that the other consequences were the result of that leakage. Ms Rice submitted that while both the appellant and her husband are adamant that there was no discussion with Mr Stubbs explaining the possible risks of the proposed surgery there is no evidence that the appellant asked Mr Stubbs about such risks. She submitted that the review officer was faced with inconsistent accounts of the nature of the discussion on 18 November 1993 and had to make his own decision on credibility. Ms Rice submitted that Mr Stubbs in his latest report confirmed that he had advised the appellant of the risk of leakage and that he has not been given an opportunity to clarify or expand on the information contained in his report. Ms Rice submitted further that if there was a failure by Mr Stubbs to properly advise the appellant the appellant's evidence that she would have refused to undergo the surgery had she known the full risk is a statement made with the benefit of hindsight. She submitted that as the appellant was in an extreme condition with severe epigastric pain and had previously sustained a leak following surgery which had resolved without difficulty, she would not have attached any significant importance to Mr Stubbs' warnings and would have gratefully accepted the surgery. That while the appellant has indicated there are medical records which suggest that she did not sustain a leak following the surgery in 1986 this information was not available to the review officer and has not been admitted in evidence before this Court. While there appears to be inconsistency in the evidence I agree with Mr Ford's submission that the respondent having been given notice in advance that Mr Stubbs might be cross-examined did not take the opportunity to present him at the review hearing. This Court has the power on the hearing of an appeal from a decision of the review officer to confirm, modify or revoke that decision on the basis of the evidence available. I have taken the decision that I should so act on this appeal rather than refer it back for a new hearing by the same review officer. The opportunity was there and the respondent had already had the warning in the Sutherland appeal as to the consequence of a failure to present all its evidence at the time of the review hearing. It elected not to call Mr Stubbs and relied on his written report. I do not consider that it is in the interests of justice that this appellant should now be put through the problems and expense of a further review hearing because of the respondent's failure to properly submit all evidence to the review officer. The issue on appeal is whether the appellant gave her informed consent before Mr Stubbs undertook the operation in December 1993. The evidence of the appellant and her husband given on oath before the review officer was that the advice given by Mr Stubbs was that the procedure might be difficult and would only be carried if it was proceeding smoothly. They said that there was no discussion of the possibility of leakage or potential life threatening hazards which was a possibility now referred, to in Mr Stubbs' report. The appellant also denied that following a similar procedure in 1986 there had been any leakage. This again is her evidence on oath and she has stated that she has medical records to confirm this. Whatever the true answer, there 7 is no evidence to contradict it. The appellant's evidence is, and again it is confirmed by her husband's evidence, that she would not have undertaken the operation had she been advised by Mr Stubbs that there was the possibility of a life threatening situation and death. Again this is the only evidence and while Ms Rice has submitted it is given with the benefit of hindsight, it was still evidence given at the review hearing and must be accepted as such. While the review officer preferred to accept the written statements from Mr Stubbs, he did so on the basis that he considered that Mr Stubbs' report "details the discussion in some depth". However, I agree with Mr Ford's submission that in his letter of 5 September 1997 Mr Stubbs is not so forthright in his statements and suggests "I would certainly have indicated that the risk was greater than for first time round operations" I agree with Mr Ford's submission that that does not signify a definite warning but only an assumption as to what he thinks he would probably have done. Against that there is the definite evidence on oath from the appellant and her husband that no such warning was given. I consider that for the reasons I have given the appeal should be allowed. The decision of the review officer is revoked and the appellant granted cover. There will be costs to the appellant of $1,000.00. DATED at WELLINGTON this /9th day of December 1997 bounddubs A W Middleton District Court Judge dc140-97.doc(rd)