Lynch v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 183 ACR 790/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MARGRET (MARGARET) LYNCH Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 12 December 2014 Appearances: C E Billing for the appellant I H V Reuvecamp for the respondent Judgment: 30 June 2015 RESERVED JUDGMENT OF JUDGE L G POWELL 1] The appellant, Margaret Lynch, seeks cover for a treatment injury being endometriosis as a consequence of surgery that took place in 2006. Background to Appeal 2] On 22 August 2006 the appellant, Margaret Lynch, underwent an "examination under anaesthetic" in order to investigate an abnormal cervical smear report. In the course of the examination the treating surgeon Dr Al Donoghue, an obstetrician and gynaecologist and accredited gynaecological surgeon, was required to release (separate) the posterior fornix which was attached or tethered to the cervix. Once that had occurred Dr Donoghue carried out a number of biopsies; on the posterior lips of the cervix, a smaller biopsy of the posterior fornix skin, the anterior tip of the An area at the top end of the vagina located between the cervix and the rectum. cervix and the cervical canal. Following the biopsies, Dr Donoghue inspected the cavity of Mrs Lynch's uterus, which was "curetted and subject to direct biopsy with a hysteroscope". Finally Dr Donoghue also carried out a "combined rectovaginal examination" which showed "some induration' between the anterior wall of the rectum and the tissues behind the cervix". In Dr Donoghue's view: This does not appear typical of malignant infiltration of the rectum, but we will wait on the biopsies. [3] Fortunately for Mrs Lynch the biopsy results were clear of any "malignant infiltration". However from the time of the surgery Mrs Lynch began reporting a variety of symptoms in her pelvic area which appeared to have steadily increased in severity over the next few months. These included bleeding from her vagina, excruciating pain, swelling, chronic back pain, urinary frequency, pain on urination and pain during sexual intercourse. [4] As a result of the symptoms on 1 1 January 2007 Mrs Lynch sought cover for a treatment injury being a "lower back pain, urinary tract infection frequency and abnormal vaginal sensation allegedly caused by colposcopy, and excessive cervical biopsy" arising out of the 22 August 2006 operation. The Corporation declined the claim on 20 February 2007. Mrs Lynch responded by seeking further reports to support the claim but by letter dated 3 December 2007 the Corporation refused to reconsider its decision. 5] In the meantime Mrs Lynch had arranged to have a total abdominal hysterectomy in order to alleviate her ongoing symptoms. This took place on 7 January 2008.4 Histological analysis following the operation revealed cervical endometriosis. As a result further consideration of additional reports obtained by Mrs Lynch in support of her treatment injury claim were rejected on the basis of a report by Dr Digby Ngan Kee, obstetrician, gynaecologist and endoscopic surgeon, who concluded that the symptoms experienced by Mrs Lynch post the 2006 surgery Thickening. W N Subsequent upheld at review. It should be noted that in the course of the hysterectomy an inadvertent cystostomy (perforation of the bladder) took place. This has been accepted as a separate treatment injury but is not relevant to the present claim. were the result of the endometriosis rather than any treatment injury arising out of the 2006 surgery." [6] In mid 2009 however Mrs Lynch's claim was significantly developed when two of her advisers, Dr Heather Weldon, gynaecologist, and Dr Mark Stegmann, obstetrician and gynaecologist, raised the possibility that the endometriosis revealed by the 2008 hysterectomy had in fact resulted from the surgery undertaken on 22 August 2006. Dr Stegmann in particular was of the view that: [Mrs Lynch's] problems probably occurred as the result of transplantation endometriosis arising from her original surgery with Al Donoghue. He took uterine curettings and created a wound at the back of the cervix. Subsequently, Margaret had pain and endometriosis in the area of that previous scar but endometriosis nowhere else. [7] The amended claim that Mrs Lynch had "transplantation endometriosis as a result of the original surgery performed on 22 August 2006" was considered by Dr Lorraine Welch, obstetrician and gynaecologist, the Corporation's Medical Adviser Treatment Injury Centre. Dr Welch ultimately concluded that with hindsight the clinical findings from the 2006 surgery were in fact consistent with pre-existing endometriosis and as a result: There is nothing present in the records provided that indicates to me that, on balance, it is likely that endometriosis pathology was initiated by the treatment of Mr Donoghue. [8] As a result the Corporation issued a further decision on 17 January 2012, once more declining to approve the claim, a decision confirmed yet again on 17 April 2012 after Mrs Lynch raised the issue of whether her hysterectomy and impaired sexual functioning/dysfunction were also injuries resulting from the surgery on 22 August 2006. [9] The refusal of the Corporation to cover endometriosis arising as a result of the surgery on 22 August 2006 was challenged at review but the Corporation's decision was upheld. In the meantime further reports were obtained by both parties both before and after the review and up to the end of the appeal including additional The Corporation confirmed its decision to decline to approve a treatment injury claim by way of reports by Dr Stegmann, Dr Welch and Dr Ngan Kee, as well as a report from Dr Diane Kenwright, anatomical pathologist. Ultimately there are now some 30 relevant expert reports that stand to be considered in the context of the present appeal. [10] It will be evident Mrs Lynch's claim for a treatment injury has undergone a fundamental revolution since it was first filed in January 2007, as further information about her condition has become available and as the different experts involved in the case have had the opportunity to refine their respective views. [11] As a result while the present claim is still based on the surgery Mrs Lynch received on 22 August 2006, the present appeal has proceeded on the substantive merits of Mrs Lynch's claim for a treatment injury and specifically whether or not Mrs Lynch's endometriosis was caused by the surgery on 22 August 2006. Endometriosis [12] Dorland's Illustrated Medical Dictionary defines endometriosis as: A condition in which tissue containing typical endometrial granular and stromal elements occurs in locations outside the uterine cavity, chiefly on the ovaries and pelvic peritoneum. [13] More specifically as noted by Dr Welch with reference to various texts, the most common site for endometriosis to be found outside the uterus is the ovaries', following by the uterine ligaments, rectovaginal septum, cul de sac, pelvic peritoneum, large and small bowel and appendix, mucosa of the cervix, vagina and fallopian tubes, and laparotomy scars.' There is no dispute that when endometrial tissue becomes established outside the uterus it can lead to a wide range of unpleasant symptoms including those recorded as having been experienced by Mrs Lynch in the present case. Such symptoms are not however experienced in all cases with the specialists in this appeal being agreed that cervical endometriosis is letter dated 1 April 2009. 32nd edition, 2012 Involving two out or three women with endometriosis. Also known as the Pouch of Douglas. Surgical incision into the abdominal cavity. generally (but not always) relatively painless, whereas endometriosis in the rectovaginal septum causes significant symptoms, including severe pain, in 95 percent of women. [14] The evidence before me is also clear that while there are a number of theories as to how endometriosis spreads outside the uterus, there is no theory that comprehensively accounts for how the condition becomes established in different parts of the body. The basic issue is illustrated by the fact that endometrial tissue is discharged through the pelvis cavity after every menstrual period and yet it generally does not result in endometriosis. One of the "most popular models" used to explain the establishment of endometriosis is affected by the same conceptual issues. This model, known as the "retrograde menstruation hypothesis" or Sampson's theory, involves endometrial fragments reaching the pelvis via transtubal retrograde flow, which implant into the peritoneum and abdominal organs and proliferate and cause chronic inflammation with formation of adhesions. As Dr Ngan Kee however commented in a course of his reports however, retrograde menstruation is a "ubiquitous phenomenon" in women and Dr Welch noted it was estimated to occur in 76-90 percent of all women, and yet only approximately 7 percent of women get endometriosis. [15] There are likewise many theories to explain why the presence of endometrial tissue outside the uterus does not by itself explain the spread of endometriosis with Dr Ngan Kee noting: There are many theories, but it is likely that women differ in their immunological and inflammatory response to the endometrial cells, making some women much more likely to develop endometriosis. Another likely theory is that in women who develop endometriosis, their endometrial cells may be generally different from women that do not develop endometriosis. They may be a clonal line of cells that are much more able to implant and form endometriotic deposits. [16] The position is further complicated because as Dr Welch noted cervical biopsies and curettage of the type undertaken by Mrs Lynch in 2006 are common gynaecological procedures yet not only do few women experience endometriosis in the cervix, but there has not been any marked increase in the amount of endometriosis reported, notwithstanding that these procedures have been more commonly used in recent years. [17] Despite this, the possibility of surgical transplantation of endometrial tissue outside the uterus is recognised by all specialists involved in this appeal as being a recognised possibility, albeit considered by Dr Ngan Kee and Dr Welch to be unusual and less likely than other possibilities. [18] Finally it should be noted that all parties agree that Mrs Lynch has endometriosis in her cervix (cervical endometriosis). As pain is not generally a symptom of cervical endometriosis, it is also assumed that endometriosis is also present elsewhere and in particular in Mrs Lynch's rectovaginal septum, as this would account for the symptoms experienced post the surgery in 2006. The Basis of the Claim [19] As finally developed before me it was Ms Billing's submission on behalf of Mrs Lynch that prior to her 2006 surgery Mrs Lynch did not have endometriosis. Instead, relying primarily on the analysis provided by Dr Stegmann in his various reports, that endometriosis developed from endometrium iatrogenically" implanted into both the cervix and the vaginal wall of the posterior fornix in the course of the 2006 surgery, as that surgery not only involved incisions into both the cervical and vaginal walls but also involved the removal of endometrial tissue from the uterus through the vagina. [20] In support of this contention Dr Stegmann relied on the following: [a] At the time of the surgery Mrs Lynch was 49, which is relatively old to be diagnosed with endometriosis, and had previously not suffered any symptoms consistent with endometriosis; [b] The biopsies taken from the cervix and from within the posterior fornix in 2006 did not reveal any pre-existing endometriosis; 10 Also known as the rectovaginal fascia, being the tissue separating the vagina from the rectum. [c] The clinical findings of Dr Donoghue (in the course of the 2006 surgery, Dr Kathleen Gillies (who examined Mrs Lynch in 2007), and Dr Weldon (who also examined Mrs Lynch in 2007 and carried out the hysterectomy in 2008) were not suggestive of pre-existing endometriosis. [d] The onset of symptoms occurred only after the 2006 surgery; and [e] Surgical implantation is a proven mechanism for the development of endometriosis. [21] In addition Ms Billing relied upon the reports of both Dr Kenwright and Dr Weldon to support Dr Stegmann's conclusions. As well as both also concluding that surgical transplantation of endometriosis was likely in the circumstances, Dr Kenwright affirmed the quality of the biopsies taken in 2006 and Dr Weldon noted in particular the temporal connection between the onset of symptoms and the 2006 surgery. The Corporation's Response [22] In response it was the Corporation's position that: a. [Mrs Lynch] must prove that it is more likely than not that she sustained a personal injury which meets the treatment injury criteria b [Mrs Lych] is only able to show that there was a temporal connection between her symptoms and the treatment. This is insufficient to meet the requisite burden of proof; C. There is insufficient evidence before the Court that [Mrs Lynch's] physical injuries were caused by the treatment she received on 22 August 2006; and/or d. To the contrary, the evidence shows that it is more likely than not that [Mrs Lynch] suffered from endometriosis prior to the treatment, and that it is the pre-existing endometriosis that gave rise to her symptoms. [23] Specifically, Ms Reuvecamp for the Corporation relied upon the reports of Dr Ngan Kee and Dr Welch in submitting that: 11 "from the activities of physicians" [a] Neither the fact that Mrs Lynch was asymptomatic prior to the 2006 surgery, nor the fact that the biopsies taken in the course of that surgery are sufficient to establish that Mrs Lynch did not in fact have pre-existing endometriosis at the time of the 2006 surgery. [b] Although iatrogenically surgical implantation is recognised as a possible mechanism for the establishment of endometriosis it was not the most likely mechanism in this case. While Dr Ngan Kee in particular accepted that the loop excision biopsies carried out in 2006 "increased the chance of Mrs Lynch developing surgical endometriosis" neither Dr Ngan Kee nor Dr Welch considered it was the cause of Mrs Lynch's symptoms. Instead it was Dr Ngan Kee's opinion in particular that Mrs Lynch had pre-existing undiagnosed endometriosis in the rectovaginal septum as a result of "deep infiltrating endometriosis" ("DIE") which occurs "when superficial deposits of endometriosis invade the Pouch of Douglas distally into the rectovaginal septum". Similarly, Dr Welch considered Mrs Lynch to have "had undiagnosed cul-de-sac/posterior vaginal wall endometriosis on 22/08/2006". While endometriosis in this location is normally symptomatic Dr Ngan Kee observed that it was reportedly asymptomatic in approximately five percent of cases. Such a hypothesis was, in the opinion of Dr Ngan Kee and Dr Welch, supported by the observations and examinations undertaken by Dr Donoghue, Dr Gillies and Dr Weldon, and was also to an extent supported by Dr Kenwright who while agreeing that some surgical transplantation of endometriosis in both the cervix and posterior fornix in 2006 was likely, accepted that it was "possible that endometriosis was present in the rectovaginal space prior to the 2006 operation". Discussion and Analysis [24] In order to establish a treatment injury Mrs Lynch must comply with the provisions of s 32 of the Accident Compensation Act 2001 the relevant parts of which provide: 32 Treatment injury (1) Treatment injury means personal injury that is - (a) suffered by a person - . .. (ii) receiving treatment from, ... I or more registered health professionals; .. . b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment ... [25] Although endometriosis is clearly a disease condition s 20(2)(f) of the Act provides that it is a personal injury if it is a treatment injury suffered by the claimant. [26] As is apparent, in the context of considerable agreement with regard to the nature of Mrs Lynch's problems, the key areas of difference are: [a] The extent to which the available evidence can establish Mrs Lynch did not have endometriosis at the time of the 2006 surgery; and [b] Whether it is more likely that Mrs Lynch's endometriosis was the result of naturally occurring DIE rather than surgical implementation. [27] The starting point for analysis of these questions are the principles set out by the Court of Appeal in Accident Compensation Corporation v Ambros". In that case it was noted: [66] The legal approach to causation is different from the medical or scientific approach, In March v Siramare, Mason CJ at p 509 in the High Court explained that the scientific concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences, whereas in law problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence, At law the cause is not the sum of the conditions, which are jointly sufficient to produce the occurrence. " [67] The different methodology used under the legal method means that a Court's assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has 12 [2008] 1 NZLR 340 allowed the Court to draw robust inferences of causation in some cases of uncertainty ... However, a Court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture... Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the Whole of the lay, medical, and statistical evidence, and not be limited to expert witness evidence ... [68] Spigelman CJ in Seltsan said that the only time that Judge is not able to draw a robust inference of causation is in cases where medical science says that there is no possible connection between the events and the injury or death .. if the facts stand outside an area in which common experience can be the touchstone, then the Judge cannot act as if there were a connection. However, if medical science is prepared to say that there is a possible connection, the Judge may, after examining all the evidence, decide that causation is probable [69] We agree that the question of causation is one for the courts to decide and that it could in some cases be decided in favour of the plaintiff even where the medical evidence is only prepared to acknowledge a possible connection. [70] Finally on this topic, ... the generous and unniggardly approach referred to in Harrild v Director of Proceedings may, however, support the drawing of "robust" inferences in individual cases, It must, however, always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a Court to draw even a robust inference on causation, Risk of causation does not suffice. Evidence of Endometriosis at Time of 2006 Surgery [28] With regard to the first issue it is clear that while endometriosis in the rectovaginal septum can be asymptomatic, it is only asymptomatic in some five percent of cases. Moreover as Dr Stegmann noted, if prior to the 2006 surgery Mrs Lynch had been fortunate enough to have had asymptomatic endometriosis in the rectovaginal septum, there has been no explanation provided as to why it suddenly became symptomatic following the surgery. [29] With regard to the results of the biopsies, the Corporation relies in particular upon Dr Welch's reports of 20 September 2012 and 1 May 2014. In the first of these reports Dr Welch noted that: [a] The biopsies were not undertaken for the purposes of establishing whether Mrs Lynch had endometriosis, endometriosis was accordingly not being looked for; [b] The endometriosis was likely microscopic (and certainly not visible to the naked eye) and Dr Donoghue in any event sampled only a small part of the cervix; and [c] The biopsy undertaken of the posterior vaginal skin within the posterior fornix was described as "scanty", which Dr Welch took to mean was "indicative of a small and likely superficial" or "glancing biopsy". 30] As a result Dr Welch provided a number of possible explanations "as to why the biopsy of the skin of the posterior vaginal fornix did not identify endometriosis in August 2006" namely: 1. The biopsy was poorly targeted - not taken from the tethered area between the cervix and the vaginalis wall. 2 The biopsy was taken from the tethered area but was either not wide enough or not deep enough or some combination of both factors and therefore failed to identify any pathology. 3. Any endometriosis related to the tethering between the cervix and posterior vaginal wall was "burnt out" and only fibrosis/scar tissue remained i.e. the endometrial glands required for a specific diagnosis were no longer present. 4. There was no active endometriosis and there never had been - the tethering was due to some other factor. [31] Having looked carefully at both Dr Donoghue's operation notes and subsequent reports, as well as the histology reports following the biopsies undertaken in 2006 I conclude that Dr Welch's criticisms cannot be sustained. First, although it is accepted that the 2006 surgery was indeed primarily focused on investigating Mrs Lynch's abnormal smears, the histology report of 7 September 2006 shows clearly that the pathologist was required to analyse Mrs Lynch's endometrial tissue as part of the analysis, and would therefore have expected to identify endometrial tissue had it been present in any of the biopsy samples. Secondly, the indulation (or thickening) noted by Dr Donoghue in his operation notes (see [2] above) as being located between "the tissues behind the cervix and the anterior wall of the rectum" was clearly a matter of some concern to Dr Donoghue which he subsequently suggested could have been an area of "burnt out endometriosis" but he noted that "we will wait on the biopsies". As Dr Stegmann noted, this comment of Dr Donoghue indicated that that was the area which the posterior fornix biopsy had been taken, that it was therefore targeted rather than being a blind and random sample as suggested by Dr Welch, and therefore the absence of any evidence of endometriosis is significant. Finally, when the histology report is looked at as a whole it is clear that the use of the term "scanty" in the report did not refer to the quality of the samples but rather it was used as a synonym for limited with reference to the presence of "squalous epithelium". Specifically in relation to the posterior fornix biopsy which was noted to measure 10 x 5 x 3 millimetre, the histology report recorded: 6. Sections show squamous mucus, with limited squamous epithelium. This shows no evidence of HPV infection or VIN. A small fragment of benign glandular epithelium is also present. . .. 6 POSTERIOR FORNIX SKIN: SCANTY BENIGN SQUAMOUS EPITHELIUM. [32] While this may have a bearing on the depth to which the sample was taken, it is noted that Dr Kenwright, who had been involved in analysing the biopsy samples in 2006, in her report in 2012 did not identify any issue with the quality of the biopsy samples taken from within the posterior fornix. Instead she noted with regard to that biopsy: I have conferred with my colleague in Palmerston North Dr Bruce Lockett about the histology report from the operation in 2006. While the report says that a gland was found in the posterior fornix further assessment found distorted epithelial tissue might have been squamous, and that no evidence of endometrial stroma was found on routine staining. For endometriosis to be diagnosed both endometrial glands and stoma should be seen on the biopsy. Therefore in the sample sent no endometriosis was present. The biopsy of the posterior fornix in 2006 showed normal squamous epithelium and a benign gland, with no evidence of endometriosis. If endometriosis was present it was not sampled. The posterior fornix was not biopsied in 2008 so there is no way we know histologically whether endometriosis was there in 2008, but it is reasonable to presume that since it was implanted in the cervix in 2006 it might also have been implanted in the posterior fornix in 2006. [33] Although Dr Welch subsequently replied to Dr Kenwright's report, no further issue was taken with the quality of the samples themselves, Dr Welch accepting that if endometriosis was present it was not sampled although noting that "deeper laying cervical endometriosis would have remained undetected by Mrs Lynch at targeted biopsies taken on 22/08/2006". [34] Taken together, while neither the absence of symptoms nor the lack of positive biopsy results cannot be taken to be conclusive that endometriosis was not present in 2006, I conclude that together they nonetheless constitute significant evidence in support of Mrs Lynch's claim. Was the Endometriosis more likely to have been caused by DIE or Surgical Implantation? [35] I turn now to the issue of whether Mrs Lynch's endometriosis was more likely to be pre-existing or the result of the 2006 surgery. As noted above, the reports of Dr Ngan Kee and Dr Welch relied on by the Corporation place reliance upon the evidence of indulation identified in the 2006 surgery and 2008 hysterectomy, and consider that this provides support for the existence of pre-existing endometriosis in the rectovaginal septum. 36] Such an interpretation is at odds with the reports of the 2006 surgery. First, as noted above, while Dr Donoghue was concerned with the appearance of the thickening he was clearly of the opinion that the biopsy would reveal anything of concern, and, as Dr Kenwright confirmed, it did not. Secondly, although Dr Donoghue subsequently suggested it may have been "burnt out" endometriosis, as both Dr Stegmann and Dr Kenwright noted, in the absence of identified endometriosis cells (both endometrial glands and stroma) no diagnosis of endometriosis can be made. Furthermore as Dr Ngan Kee noted areas of "burnt out" endometriosis frequently contain live endometrial cells, but there was no evidence that this was the position in this case. [37] Likewise as Dr Welch noted in her first report possible causes of the thickening observed by Dr Donoghue could have included the following possibilities: historical obstetric injury. inflammation in association with the previous IUCD or other pelvic infection - including a sub clinical postpartum infection. undiagnosed endometriosis already present. malignancy (the correspondence indicates this is a concern to Mr Donoghue at the time not subsequently found) 38] Ultimately it was with the benefit of hindsight that Dr Welch concluded "the clinical findings at the time of Dr Donoghue's 22/08/2006 physical examination of Mrs Lynch are consistent with pre-existing endometriosis". In subsequent reports Dr Welch referred to Dr Donoghue's clinical records indicating that Mrs Lynch's "upper vagina (vault) was abnormal (scarred/tethered) prior to treatments", but this is not what Dr Donoghue actually recorded and indeed is disputed by Dr Stegmann. Specifically, as Dr Stegmann noted, apart from the tethering, which Dr Donoghue described as having been "adherent to the posterior fornix in a benign manner", he referred to Mrs Lynch's pelvis as "otherwise normal". Dr Stegmann's comments were in fact supported to an extent by Dr Ngan Kee who noted that Dr Donoghue had not described the overlying vaginal epithelium as being abnormal. [39] Instead Dr Ngan Kee relied on the thickening identified in the 2006 surgery as being consistent with the presence of endometriosis in the rectovaginal septum with further support for DIE having occurred provided by the findings of Dr Weldon in the course of the 2008 hysterectomy, Dr Weldon recording in her post operation report: At the time there was extensive scarring circumferentially of the fornices and of the area at the top of the cervix. [40] As Dr Stegmann noted however by 2008, endometriosis had become established and the presence of the scarring noted in 2008 is therefore of little assistance in determining whether the endometriosis pre-existed the 2006 surgery. Similarly, although both Dr Welch and Dr Ngan Kee noted Dr Gillies' reference to cervical scarring in her 2007 examination, it is not at all clear exactly what Dr Gillies was referring to, given by that date some surgical scarring would have been present and endometriosis was established, whether pre-existing or implanted as a result of the 2006 surgery. [41] Instead, of much greater significance as to the cause of Mrs Lynch's endometriosis were the histological findings from the 2008 hysterectomy. Although Dr Welch had concluded that there was pre-existing endometriosis in the cul-de- sac/rectovaginal septum and the possibility had been accepted by Dr Kenwright that endometriosis existed in the rectovaginal septum as at 2006, neither provided any detail of the mechanism as to how that may have occurred. Instead, as noted above, it was Dr Ngan Kee who provided a detailed exposition as to how endometriosis could have become established on the rectovaginal septum through DIE. In explaining this process Dr Ngan Kee made it clear, using somewhat military analogies, that the DIE originated in the uterosacral ligaments before invading or infiltrating through the Pouch of Douglas (or cul de sac) and through into the rectovaginal septum. As noted by Dr Ngan Kee: This causes obliteration of the Pouch of Douglas and induration and the formation of endometriotic nodules in the rectovaginal septum. [42] As a result it was Dr Ngan Kee's conclusion: At Mrs Lynch's original operative procedure in 2006 Dr Donoghue notes the presence of an adhesion between the posterior lip of the cervix and the vaginal fornix and induration in the recto-vaginal septum. The induration appeared to be sufficiently prominent that Dr Donoghue considered the possibility that it might represent a malignant process. His operation note states: "This does not appear typical of malignant infiltration of the rectum, but we will wait on the biopsies". In my opinion it is highly likely that this induration represented deep infiltrating endometriosis, and I cannot propose any other pathology that might reasonably have caused these finding. Research has looked at whether clinical examination is useful in diagnosing recto-vaginal endometriosis. The finding of nodularity or induration in the culdesac or uterosacral ligaments (as found in Mrs Lynch's case) had a positive predicative value (PPV) for diagnosing endometriosis of 95% (14). In the absence of any other plausible explanation for the examination findings, I believe that this strongly supports the premise that Mrs Lynch had pre-existing deep infiltrating endometriosis. [43] It is apparent that Dr Ngan Kee's hypothesis is dependent on the endometriosis passing through the Pouch of Douglas. This however is not supported by the clear results following the 2008 hysterectomy. The pathologist who completed the histology report, Dr Bruce Lockett, was provided with the uterus and cervix removed in the course of Mrs Lynch's hysterectomy. Of particular relevance Dr Lockett noted: The cervical stump measures 41 x 31 x 30 millimetres, with the Pouch of Douglas present. . . . The Pouch of Douglas is unremarkable. [Emphasis added] [44] The significance of this was described by Dr Welch in the following terms: Subsequent histology report (microscopy) confirmed the presence of cervical changes consistent with endometriosis. This was not identified in the Pouch of Douglas which was stated to be unremarkable by the pathologist. [45] Dr Stegmann went even further noting: The histology report of the tissues removed at hysterectomy notes "the Pouch of Douglas (cul-de-sac) is unremarkable". That is no endometriosis! The Pouch of Douglas, along with the uterosacral ligaments which border the Pouch of Douglas, is a common site for finding (pre-existing) endometriosis. [46] Dr Ngan Kee does not seem to have appreciated the histology findings in relation to the Pouch of Douglas, nor did he at any time refer to them directly. Instead he noted only that: With regards to the histology of the tissues removed at hysterectomy Dr Stegmann makes the comment that "the Pouch of Douglas (cul-de-sac) is unremarkable. That is no endometriosis". However this is in conflict with Dr Kenwright's (pathologist) statement and illustration that the hysterectomy was intrafascial and therefore would not have, by definition, included the cul- de-sac or Pouch of Douglas. Therefore, in my opinion, because of the nature of the hysterectomy specimen, endometriosis involving the Pouch of Douglas, uterosacral ligaments and recto-vaginal septum is not excluded. [47] The inconsistency with Dr Kenwright's report referred to by Dr Ngan Kee was a diagram showing the approximate angle of the incisions made to remove Mrs Lynch's uterus. As Dr Stegmann subsequently noted, in fact Dr Kenwright did not discuss the Pouch of Douglas at all. In my view the evidence of the fact that the Pouch of Douglas was entirely intact or "unremarkable" is inconsistent with the mechanism of DIE posited by Dr Ngan Kee. As a result, in my view the clear findings of Dr Lockett and the interpretation of those findings provided by both Dr Welch and Dr Stegmann mean Dr Ngan Kee's hypothesis that endometriosis was present in Mrs Lynch's rectovaginal septum as at the date of the 2006 surgery is simply not supported, and no other theory explaining how naturally occurring endometriosis could have become established in Mrs Lynch's rectovaginal septum has been provided. [48] Instead, applying the principles in Ambros to the difficult technical issues applying in this case, I am satisfied that there is sufficient evidence to conclude on the balance of probabilities that the endometriosis suffered by Mrs Lynch was the result of surgical implantation. In particular I consider Dr Stegmann's reports taken together provide a clear and coherent basis for endometriosis having occurred as a result of the 2006 surgery. Starting with the fact that the mechanism, posited by Dr Stegmann, is acknowledged by all specialists as a possible cause of Mrs Lynch's endometriosis, I consider that: [a] Mrs Lynch's lack of symptoms prior to the 2006 surgery are significant given that if endometriosis was present in the rectovaginal septum symptoms would generally be expected; and [b] The lack of endometriosis revealed by the biopsies is also significant, particularly given a biopsy appears to have been targeted on the area of induration observed by Dr Donoghue. [49] Most importantly however, I consider the fact that the explanation for endometriosis having become established in Mrs Lynch's rectovaginal septum prior to the 2006 surgery and detailed by Dr Ngan Kee in his reports as having resulted from DIE is ultimately inconsistent with the available histological evidence and makes it unlikely that the DIE can have occurred without obvious damage to the Pouch of Douglas. [50] I accordingly find that on the balance of probabilities Dr Stegmann is correct in considering Mrs Lynch suffered endometriosis as a direct but unintentional result of her 2006 surgery. Decision [51] The appeal is allowed. The review decision dated 26 November 2012 is quashed and the decision of the Corporation dated 17 April 2012 is set aside. [52] Mrs Lynch is entitled to cover for a treatment injury which occurred on 26 August 2006 being endometriosis through surgical implementation. It will now be necessary for the Corporation to consider carefully what entitlements may flow from this decision. In the meantime Mrs Lynch is also entitled to costs. In the event that these cannot be agreed within one month I will determine the issue following the filing of memoranda. [53] In finding that Mrs Lynch has suffered a treatment injury as the result of her 2006 surgery, I note that nothing in this judgment should in any way be taken as a criticism of Dr Donoghue. It is clear from the evidence that Dr Donoghue is very experienced and well regarded in his specialist area. The 2006 surgery achieved its purpose, and there is no evidence before me of any want of care or skill on the part of Dr Donoghue whatsoever. Instead the findings I have made are based on the treatment injury provisions contained in the Accident Compensation Act which do not require evidence of want of skill or negligence on the part of the treatment provider for cover to be established. [54] Finally, I am conscious that this judgment contains a range of matters of a sensitive nature to Mrs Lynch in particular, but also potentially with regard to both Dr Donoghue and Dr Weldon. As a result I direct that a copy of this judgment be provided to both Dr Donoghue and Dr Weldon as well as the parties. The parties, Dr Donoghue and Dr Weldon will then have until 18 July 2015 to provide submissions as to whether any details of this judgment should be suppressed following which I will make a determination with regard to publication of the judgment. Judge L G Powell District Court Judge ACR 790-12-Lynch.doc(aw)