Barrett v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 177 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN LUCRESIA BARRETT (Al 377/06) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 10 July 2007 APPEARANCES Mr D Vincent and Mr M Freeman, Counsel for Appellant. Mr A D Barnett, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 May 2006, whereby it declined to accept the appellant's claim for cover for a treatment injury which she had lodged on 26 April 2006. [2] The respondent's reasons for declining the claim were that the claim was in all material respects the same as a medical misadventure claim which the appellant had lodged on 24 March 2005 and which, by decision dated 19 December 2005, the respondent had declined on the grounds that no personal injury had been established as having been suffered as a result of medical error or medical mishap. 377.06 (pg) 2 ] The facts relevant to the issue in this appeal are not in dispute and may be stated as follows: . The appellant suffered from congenital asymmetry in her face and desired to have this corrected by surgery. . She consulted with an Oral and Maxillofacial Surgeon and a Plastic Surgeon and such surgery was discussed with those two specialists. In broad terms, the surgery proposed was for a realignment of her jaw. After two false starts surgery was performed at Hutt Hospital on 8 March 2005. The surgery was not a success and significant asymmetry still remained. . On 24 March 2005 the appellant lodged a claim for cover arising from medical misadventure, the nature of the personal injury sought to be covered was the claimed defective consequences of the surgery. . The respondent's Medical Misadventure Unit sought independent reports and in or about December 2005 it reported to the respondent . In that report it seems to be accepted that the outcome of the surgery was less than desirable but the Committee found that no personal injury as a consequence of medical treatment had been identified The crux of the Medical Misadventure Committee's Report, and which was adopted by the respondent, stated as follows: 'Medical error and medical mishap can only be applied when a personal injury caused by medical treatment is found. Injury related to medical treatment has not been identified; therefore medical error or mishap does not apply to the decision. However, for your interest ACC will provide comment on both based on the claim investigation. Medical error occurs where a registered health professional or organisation fails to observe a standard of care and skill reasonably to be expected in the circumstances. Medical error can arise in giving treatment; deciding whether or not to give treatment, deciding what treatment to provide, obtaining consent to treatment; or diagnosis. In this case, ACC finds no evidence to suggest a failure to observe a standard of care and skill reasonably to be expected in the circumstances." The Report did in fact identify a potential personal injury, namely neurosensory deficit of the lip, and where the report stated: 377.06 (pg) 3 ACC determines that the neurosensory deficit in the lip is a personal injury causally linked to treatment. It is considered to be an accidental injury at this stage, but it has not been caused by medical error and does not yet meet the criteria of medical mishap. The severity criterion is met in regards to the neurosensory deficit of the lip. Dr Smedley advises that neurosensory deficits in association with this type of surgery occur in more than 1% of cases. However, Dr Smedley is reserved with the final outcome of this adverse consequence because an assessment of this sort of presentation car ered until 18-24 months has passed since the surgery. The rarity criterion is not met at the moment." . The appellant lodged an Application for Review of the respondent's decision. In an accompanying statement with that Application for Review, the appellant raised several issues including a failure of the treating specialists to obtain her informed consent. . By letter dated 31 March 2006, the solicitors representing the appellant wrote to Dispute Resolution Services and withdrew the appellant's application for review. . By letter dated 26 April 2006, the appellant's solicitors lodged a fresh claim with the respondent, that claim stating as follows: "The carrying out of surgery, namely a bi-maxillery osteotomy involving a vertical subsigmoid osteotomy, and related surgical procedures necessary for the movement and alteration of the upper and lower jaw, for which informed consent was not first obtained due to the support systems, policies and processes of the Hutt Hospital. It is our contention also that the new provisions of the 2001 Act apply. We direct you in this regard to section 34 of the Act. That section, as you are aware, enables a claimant to have a claim considered under the new provisions even though the treatment or injury occurred before 1 July 1005. We note that the personal injury for which cover is sought is now different from what was claimed in the previous applications. We request that you apply the new provisions, therefore, to this matter." This new claim was considered by the respondent and its decision to decline cover, given on 22 May 2006, is now the subject of this appeal. The decision letter stated, inter alia, as follows: "ACC has your letter of 26 April in which you purport to make formal application for cover under the treatment injury provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001 (IPRC Act) applying from 1 July 2005. However, ACC does not accept that this claim can be considered as one for treatment injury as you appear to be asserting. 377.06 (pg) 4 ACC has been unable to see anything in your letter to suggest that the claim that you are now purporting to make on behalf of your client is not in all material respects the same claim as the original claim lodged and decided and in respect of which a review application was formally withdrawn. You refer to section 34 of the IPRC Act. This section clearly reflects a parliamentary intent for claims made prior to 1 July 2005 to be considered as medical misadventure except in the limited circumstances provided for by section 34(4). That general intent must similarly apply to a claim purporting to be a new claim, but which is, in substance, a re-lodgement of a claim made prior to 1 July 2005." . The appellant took that decision to review and in a decision dated 12 September 2006 the Reviewer, Mr D Walker, ruled that the respondent's decision of 19 December 2005 had determined all issues relating to personal injury by medical misadventure and that the present application was precluded from being considered as a treatment injury by the provisions of Section 34. [4] Mr Vincent for the Appellant, submitted as follows: For the purposes of its decision on the claim lodged by the appellant in March 2005, the Corporation did not consider or make a determination on the issue of informed consent. . The issue of medical error determined in that first decision was confined to a consideration of the surgery performed and whether the outcome was as a consequence of medical error. . The appellant's fresh claim was lodged after the amendment to the Act allowing for treatment injury cover and where the "treatment" as defined in Section 33 was the failure to obtain informed consent as set out in Section 33(1) (e). Section 34, being the transitional provision, does not preclude the appellant's claim being considered as a treatment injury, as neither the requirements of Section 34(1) (a) or (b) apply in the case of this appellant The respondent has not yet determined a claim for cover by the appellant on the question of informed consent and therefore the appellant was entitled to bring a fresh claim under the new treatment injury provisions to have that issue determined under those new provisions. 377.06 (pg) 5 As a fall-back position, it must be the case that informed consent has not been considered for the purposes of medical error and as such would be required to be considered by the respondent under the medical misadventure provisions which pertained prior to 1 July 2005. (5] Mr Barnett for the Respondent, submitted as follows: . The issue raised by the appellant is one which comes within the provisions of Section 34(1) (a) and requires to be determined under the medical misadventure provisions in force before 1 July 2005. Section 34 of the Act applies. . The respondent's primary decision of 12 December 2005 is founded on both medical error and medical mishap, including the issue of informed consent. On the plain meeting of Section 34(1)(a) the claim for cover for medical misadventure was lodged with the Corporation before 1 July 2005 if it be found that no determination has been made on the question of informed consent, that issue must be determined in accordance with the statutory provisions in force before 1 July 2005 by reason of Section 34(2). If the issue of informed consent had not been properly addressed in the decision of 19 December 2005, the proper course was for the appellant to review that decision, and if necessary appeal to the District Court, where that issue could be fully canvassed. . The appellant is for all matters confined to the pre-amendment statutory provisions. (6] Mr Barnett made an important concession in the course of submissions, namely that the respondent accepted that whilst informed consent may have been on the table to some extent, the issue of informed consent had not been determined and did not constitute part of the substance of the decision given on 19 December 2005. 377.06 (pg) 6 DECISION [7] From 1 July 2005, significant amendments to the Act came into force as it related to cover for what was formerly known as 'personal injury by medical misadventure'. The two types of misadventure provided for under the Act, namely medical error and medical mishap, were replaced by a new Section 32 which provided for cover for what was now termed a "treatment injury". [8] Not unnaturally, treatment injury means personal injury that is suffered by a person seeking treatment from a registered health professional and which is caused by that treatment. "Treatment" is defined in a new Section 33 as including at (e) "Obtaining or failing to obtain a person's consent to undergo treatment, including any Information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment." [9] It is under the new amended provisions of Sections 32 and 33 that this appellant lodged a fresh claim for cover in April 2006. [10) As has been identified by both Counsel, Section 34, being the transitional provision, needs to be considered in relation to any claim for cover for a treatment injury. That section in its entirety states as follows: "[34] Cover for personal injury caused by medical misadventure before 1 July 2005 (1) This section applies to - (a) claims for cover for personal injury caused by medical misadventure that were lodged with the Corporation before 1 July 2005, but have not been determined; and (b) claims for cover for personal injury caused by medical misadventure that were declined by the Corporation before 1 July 2005, but are lodged again on or after that date as claims for cover for treatment injury (and not lodged as claims referred to in subsection (4). (2) Claims lodged in the circumstances described in subsection (1) must be determined under the relevant provisions in force immediately before 1 July 2005 377.06 (pg) 7 (3) Reviews and appeals must be dealt with under the relevant provisions of Part 5 n force immediately before 1 July 2005, if the decision being reviewed or appealed - (a) was made before 1 July 2005; or (b) is one to which subsection (2) applies. (4) Subsection (1)(b) does not apply in relation to a claimant if - (a) before 1 July 2005, the Corporation declined the claimant's claim or cover for personal injury caused by medical misadventure because there was no personal injury; and (b) on or after 1 July 2005, the claimant lodges a claim for cover for treatment injury in respect of a personal injury that - occurred after the decision to decline the earlier claim (whether before or after 1 July 2005); and (it) arises out of the circumstances on which the earlier claim was based.]" [11] Both Counsel acknowledge that Section 34 had to be addressed, with Mr Vincent submitting that the qualifying requirements of (1)(a) and (b) did not apply and therefore Section 34(2) did not apply to the appellant, and Mr Barnett submitting that both (1)(a) and (b) did cover the circumstances of this appellant and therefore Section 34(2) did apply. [12] As a consequence of the concession made by Mr Barnett that the issue of informed consent had not been properly addressed and determined in the Corporation's decision of December 2005, the question of whether an estoppel arises is no longer in issue. The issue that now presents is whether the appellant is entitled to have her claim for cover determined under the "treatment injury" provisions of the 2005 Amendment or whether she is confined to having that issue of informed consent considered under the umbrella of 'medical error" under Sections 32 and 33 of the 2001 Act as originally enacted. [13] The question of whether Section 34(1)(a) and/or (b) apply is determined on the facts as they have emerged and which cannot be in dispute. [14) As part of the appellant's initial claim for cover was a form completed and signed by her on 4 April 2005. This form was a Treatment Details Report and it posed a number of questions for a claimant to complete and was stated to be a form "to give ACC more information about your medical misadventure claim." 377.06 (pg) 8 15] One of the questions posed was - "Please list any concerns that you have about the standard of care you have received". in answer to that question the appellant wrote - "Lack of information regarding surgery, after care and results. Confusion regarding who did the surgery." [16] It would seem that the Corporation or the Medical Misadventure Unit did not seek to obtain further details from the appellant about these matters, but an indication is given by the appellant herself in the statement accompanying her Application for Review of the decision, where she stated, inter alia, as follows: "I feel my surgery consent form is an invalid document as I originally signed it on the 2"d September 2004 witnessed by Simon Leith, a Dental House Surgeon, not by the specialists performing the surgery. Only oral surgeon Brendan Young is named as the surgeon carrying out the procedure. Craig Mckinnon, plastic surgeon and Hakan Agir, Training fellow also took part in the procedure. I was not given the opportunity as a patient to agree to have a trainee assist or physically take part in my surgery." [17] Even without the concession made by Mr Barnett, i would find that the Corporation did not address the issue of informed consent in the context raised by the appellant when it made its determination to decline cover, but I do find as a fact that the issue of informed consent was on the table and ought to have been considered by the respondent. Indeed it ought to have sought further particulars from the appellant about the matters raised in her Statement of Concerns on the subject, as I have set out above. [18] From the foregoing I find as a matter of fact and law that this appellant does come within the provisions of Section 34(1)(a) in that she had lodged a claim for cover for personal injury caused by medical misadventure before 1 July 2005, but that the issue of medical misadventure by reason of failure to obtain informed consent has not been determined. That issue, I find, must be determined in accordance with the provisions of Sections 32 and 33 of the Act as originally enacted. [19] That finding and ruling overtakes any considerations of Section 34(1)(b) which would only need to be considered if (a) were found not to apply. [20] The finding I have made confirms that the Corporation has still to make a determination on the appellant's claim for cover as originally lodged in March 2005, which claim included medical error by reason of failure to obtain informed consent. 377.06 (pg) 9 [21] It is of course the case that no Review Decision was ever made on this issue, as the review was withdrawn before it could be considered, even though it is clear from the submission made by the appellant that the issue of informed consent loomed large. [22] In terms of jurisdiction, I find that the Review Decision which is the subject of this appeal did not properly consider the matter, probably because it was not argued in the same way as the matter has been argued before me, but I find that the ultimate decision of dismissing the Application for Review was wrong and that decision is hereby quashed. [23] In accordance with Section 161(2) of the Act, I now direct the Corporation to give full consideration to the appellant's claim for cover for personal injury by medical misadventure, being medical error by virtue of the alleged failure to obtain the appellant's informed consent to the treatment provided. The respondent is then to make a fresh decision on the appellant's claim for cover, which decision would be a reviewable decision. [24) The appellant has to some extent been successful in this appeal and in the circumstances I consider that an award of costs is appropriate. Accordingly, I allow the sum of $1,500 costs to the appellant together with any qualifying disbursements. DATED at AUCKLAND this 315+ of July 2007 ke M J Beattie District Court Judge 377.06 (pg)