Dally v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. GO 197 HELD AT HAMILTON 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 MARY ELIZABETH DALLY Appellant (Appeal No. DCA 48/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21st day of August 1996 APPEARANCES Anna de Jonge for appellant P A McBride for respondent DECISION OF JUDGE D A ONGLEY This appeal commenced in Hamilton on 21 August 1996. The advocate for the appellant had indicated the wrong appeal number in the notice of appeal. By consent the matter was adjourned to be dealt with on the papers after further submissions were filed. That has now been done and I apologise for the delay in issuing a decision. The claim was for injury by way of paraesthesia allegedly following medical misadventure by incorrect administration of anti-depressants including amitriptyline. The medical misadventure advisory committee found no causal link between the taking of amitriptyline and occurrence of paraesthesia. The Review Officer found that there was no medical error by way of a failure to exercise reasonable care and skill, and no medical mishap by way of unexpected adverse consequence. - 2 The claimant's evidence before the Review Officer consisted of: 1. Her affidavit deposing to the course of her various treatments, the untoward effects which she experienced, the medical advice or information she received and the occurrence of paraesthesia beginning on the left side of her face in September 1993. 2. A letter of 7 January 1994 from Robert S Craven, Neurologist 3. A letter of 18 July 1995 from Dr John Collier tending to exclude psychiatric causes 4. A letter of 22 December 1995 from Dr Greig Mccormick also excluding psychiatric illness and noting a temporal relation between her symptoms and her medication 5. A selection of extracts from medical and scientific journals The Corporation obtained a written opinion dated 3 July 1995 from Dr A N Graham, Physician, of Tauranga who had seen the appellant twice in 1994. He referred to left side paraesthesia and commented that it is very unlikely that it is due to amitriptyline. He mentioned the possibility of seizural disorder and referred to a head injury which she suffered in a car accident in 1986, but he had no medical records. Dr Graham included copies of his earlier reports, in particular a letter to Dr M Brauch who was the appellant's general practitioner in March 1994. The Corporation's file included other notes connected with the appellant's medical examinations and history. The Pharmacology Medical Misadventure Unit referred to the following material which it had considered: 1. Medical notes supplied by Dr Reeder 2. Copy of the appellant's diary 3. Two letters from the appellant The medical misadventure committee finally reported in October 1995. It noted that the appellant had ceased taking amitriptyline in November 1992 and it found that there was no causal link with paraesthesia. The review hearing took place on 11 January 1996. Ms de Jonge's written submissions referred particular to Dr Mccormick's letter and to medical scientific literature. The Review Officer obviously considered the matter with care, referring to relevant parts of the written material, and reached a decision on the basis that the medical opinions available to the Corporation and the Review Officer did not support the claim. That conclusion appeared to be inevitable on the material before the Review Officer. On this appeal, no further relevant evidence was provided. The appellant introduced a letter from Dr ME Godfrey of Bay of Plenty Environmental Health Centre expressing the opinion that the appellant's symptoms were in part exacerbated by exposures to mercury vapour from amalgam. He linked paraesthesia with mercury toxicity and then said: - 3- It is my clinical opinion that Mary Dally has suffered medical misadventure for the following reasons. Firstly, she was initially inappropriately treated and the subsequent saga of further inappropriate drug therapies exacerbated her illness. Secondly, there was a failure to diagnose an underlying heavy metal toxicity. The combined effect of these medical misadventures have resulted in extensive and prolonged physical and mental suffering. That conclusion springs from a report which does not contain any other comment upon the history and diagnosis of inappropriate drug therapies. It cannot be accepted as evidence supporting the claim of medical misadventure which is the subject of the present appeal. It introduces another possible claim, of mercury vapour exposure, which would have to be initiated by a further claim for cover being lodged with the Corporation. Additionally, the appellant's advocate provided the Court with further extracts from medical and scientific journals. That kind of material cannot assist the Court directly. The purpose of expert medical evidence is to provide the Corporation, the Review Officer or the Court with material which will enable a judgement of medical questions which are themselves outside the ordinary knowledge and competence of the tribunal in question to judge without such assistance. In order to meet ordinary tests of admissibility, the medical opinion needs to be provided by a practitioner or specialist who first qualifies himself or herself with sufficient skill and expertise in the process of diagnosis that is required in the particular case. The process involves the very difficult question of estimating the probable cause of injury or disease, which is often a task that involves consideration of controversial views. The opinion then needs to be based on a patient history which can be verified independently in its important respects. Occasionally, evidence falling short of those requirements can be helpful in determining a claim. However copies of scientific publications are of no assistance at all unless they are provided by a medical or scientific expert for the purpose of background information supporting the written or oral opinion of that particular expert, or illustrating a difficulty which the expert introduces to the Court. These are matters which District Court Judges hearing appeals under the Accident Rehabilitation and Compensation Insurance Act have repeatedly tried to make clear. For the reasons I have endeavoured to state, Dr Godfrey's opinion does not carry sufficient weight to affect the question decided by the Review Officer. There is no other persuasive material. The appeal is therefore dismissed. DATED at WELLINGTON this 21 5- day of April 1997 D A Ongley District Court Judge