Clark v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 70 /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 MARY GWYNDOLYN CLARK DCA 339/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of March 1998 APPEARANCES: Mr C Hutchison advocate for appellant Mr S Condie counsel for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover under the Act for personal injury as a consequence of medical misadventure. 2 BACKGROUND On 5 October 1995 the appellant underwent surgery in Christchurch Hospital for treatment of a carcinoma of the upper rectum. She underwent an anterior resection performed by Mr Morreau. She was discharged on 16 October 1995 and histology confirmed a carcinoma. Mr Morreau left Christchurch Hospital at the end of 1995 and Mrs Clark thereafter came under the care of Mr Frank Frizelle, General Surgeon. On 25 November 1996 Mr Frizelle saw the appellant at Christchurch Hospital and he diagnosed that she had a significant stricture at her anastomosis which needed further treatment. On 6 December 1996 she underwent surgery for dilatation of the anastomosis and within 48 hours of that operation she suffered perforation at the anastomosis and she underwent further surgery for repair of that perforation. Part of the surgical procedure required was the creation of a defunctioning loop ileostomy. This ileostomy was later reversed by further surgery in March 1997. The outcome of this adverse consequence resulted in: (i) a prolonged hospital stay; (ii) the appellant being required to have a defunctioning loop ileostomy for 3 months and; 3 (iii) the pain and suffering associated with two further surgical procedures namely the formation of the loop ileostomy and repair of anastomic tear and the subsequent closure of the loop ileostomy. The claim for cover made by the appellant was treated by the Corporation as a claim for medical misadventure being medical mishap within the meaning of the Act. At no stage has any investigation or consideration been given to any question of medical error and this appeal is solely concerned with the question of medical mishap. Medical misadventure means personal injury resulting from medical error or medical mishap. Medical mishap is defined in section 5 of the Act: "Medical mishap" means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given, if- (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (b) The adverse consequence of the treatment is severe. (2) For the purposes of the definition of the term "medical mishap", the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given. (4 ) For the purposes of the definition of the term "medical mishap", the adverse consequences of treatment are severe only if they result in death or - 4 ( a) Hospitalisation as an inpatient for more than 14 days; or ( 6 ) Significant disability lasting for more than 28 days in total; or (c ) The person qualifying for an independence allowance under section 54 of this Act. For the purposes of the appellant's claim it is accepted that the adverse consequence of the treatment was severe as would be required to establish a claim for medical mishap. The only issue for determination is whether the likelihood of the adverse consequence of the treatment occurring is rare, that is it would not occur in more than one percent of cases where that treatment is given. THE MEDICAL EVIDENCE Mr Frizelle who is a General and Colorectal Surgeon, at the Department of Surgery Christchurch Hospital, was asked to report on the appellant's treatment to the Medical Misadventure Advisory Unit and his report of 3 January 1997 is as follows: "Thank you for the opportunity to comment on Mrs Clark's care. She was admitted for anastomotic dilation following development of a stricture post anterior resection. She developed a perforation secondary to dilatation. This required her to be defunctioned with a temporary ileostomy for three months. Mrs Clark was first admitted on 04.10.95 for treatment of carcinoma of the upper rectum. She underwent an anterior resection and was discharged on 16.10.95 with histology confirming a carcinoma. The surgery at this point was undertaken by Mr Morreau and a copy of his operation report is 5 attached. Mr Morreau left this hospital at the end of 1995 and Mrs Clark then came under my care. When seen on 25.11.96 it was apparent that she had significant stricture at her anastomosis to the extent that it needed further treatment. As such, she was brought in for dilatation of the anastomosis on 06.12.96. This was dilated to 31mm. It was however an extremely tight stricture and initially I could not insert my smallest finger, or the smallest dilator. I attach a copy of this operation report also for your records. Post-operatively, because of concern about possible perforation, she was admitted to hospital. It became apparent over the next 48 hours that she had in fact perforated, and 48 hours after initial surgery she returned to theatre where she underwent surgical repair of a 1cm tear in the anastomosis, and a defunctioning loop ileostomy. She stayed in hospital from 06.12.96 until 16.12.96 and was treated with antibiotics over this period. During this time she learned to use the stoma. It appears that this was a relatively uncomplicated period, but I was actually absent on annual leave following her surgery. Mrs Clark is to have a contrast study undertaken at the end of February 1997, and will have her ileostomy reversed in March. Perforation of an anastomosis following dilatation is a well recognised but infrequent complication of this procedure. The consequence of this complication to the patient includes: a) a prolonged hospital stay. b ) Mrs Clark has required a defunctioning loop ileostomy for some three months and, 6 c) the pain and suffering associated with two further surgical procedures, namely the formation of a loop ileostomy and repair of the anastomotic tear, and subsequent closure of the loop ileostomy. In summary, this patient suffered an infrequent but recognised complication of anastomotic dilatation for an anastomotic stricture. This will have a significant impact on her lifestyle over the months that she has the stoma." It was on the basis of that decision that the Corporation determined that the adverse consequence was not sufficiently rare within the meaning of the Act and declined cover. For the purposes of the review hearing the Corporation sought further opinion from Mr Frizelle on the question of the rarity of the adverse consequence and he reported by letter of 13 August 1997 as follows: "Thank you for the opportunity to comment further on this case. As I understand it, you are really asking me to try and put an incidence on the occurrence of perforation following dilatation of an anastomosis. To do this I have searched the computerised medical journal log (MedLine) to identify papers that address this issue. In summary, going back over 20 years, I have been unable to identify an absolute incidence figure for this occurrence. The occurrence of strictures is variably reported at 3-5%. However, some report studies have put this as high as 20% in specific cases. As for the likelihood of perforation on dilatation, while there are individual reports of this occurring, very few larger series report their own data on this. In fact, the data really is so poor that it is difficult to give a reliable figure, even from the larger centres. 7 Such as it is, the incidence in one reliable centre (Leeds) was one perforation in 12 dilatations. Along with this, the American Society of Colorectal Surgeons reviewing the management of 130 plus strictures, found that 70 required dilatation for which perforation occurred in a number though details of the exact numbers was not given. In all it appears that strictures may occur in approximately 3-5% of cases and of those dilated, perforation can occur in up to 5%, giving an overall incidence of stricture development and subsequent perforation being less than 1%. However, as stated, the data for this despite a very thorough search of the literature and reviewing over 30 book chapters trying to find an absolute figure is poor, and it really is an area that needs further attention as far as surgical literature is concerned." No further medical evidence has been adduced by either party in relation to this question of rarity. In her decision, the Review Officer found that on the basis of Mr Frizelle's advice, the incidence of perforation on dilatation was considerably higher than 1% and on that finding the adverse consequence could not be considered rare within the meaning of the Act. She therefore upheld the Corporation's decision. SUBMISSIONS Mr Hutchison the appellant's advocate submitted that for the purposes of "treatment" within the meaning of that word in section 5 of the Act, it must include the fact of the surgical procedure of the anastomosis consequent upon the operation to remove the cancerous tumour in October 1995. He submits that if that is accepted then the evidence of Mr Frizelle is that 8 strictures of the anastomosis occur in approximately 3-5% of such cases and of those strictures subsequently dilated perforation can occur in upto 5%, giving an overall incidence of stricture development and subsequent perforation at less than 1%. Mr Condie for the respondent submits that the only "treatment" which can be considered to be the subject of consideration for the medical mishap to the appellant was the dilatation of the stricture and on that basis the chances of perforation as a consequence of that dilatation are accepted as being more than 1% and therefore it does not have sufficient rarity to come within the definition in the Act. DECISION This appeal requires the Court to interpret the medical opinion which it has received in the form of advice from Mr Frizelle. In that regard it is in exactly the same position as was the Review Officer and therefore I find that this is a matter which can properly be looked at de novo. I say this because the respondent seeks to rely on the finding of the Review Officer that it would be artificial to regard the "treatment" as anything other than the treatment received by the appellant in December 1996 following the development of the stricture. In the circumstances I do not consider that such a finding is one which is in a category which the appellate Tribunal should be loathe to interfere with. The appellant suffered from a cancerous tumour or carcinoma in her upper rectum. The operation to remove this carcinoma was described as an anterior resection. 9 In the surgery notes of Mr Morreau he states inter alia "The tumour was identified. The laparotomy was performed to stop. The left colon was mobilised with protection and isolation of the gonadal vessel and left ureter. The splenic flexure was taken down. The IMA was divided immediately distal to the left colic. It was held with 2-0 vicryl ties. The mesosigmoid was then divided. The margin and artery were patent and the apex of the sigmoid with the point elected for the anastomosis." There follows further description of surgical procedures which were carried out and then the statement "the anastomosis was seen to be complete." Blacks Medical Dictionary describes an anastomosis in the context of this surgerical procedure as "a term describing the joining together (by operation) of any two parts of the alimentory tract or of blood vessels." In his first report of 3 January 1997 Mr Frizelle states "She was admitted for anastomic dilatation following development of a stricture post anterior resection". He further states that when he saw her in November 1996 she had a significant stricture at her anastomosis. I interpret the foregoing to mean that part of the treatment the appellant received during the surgical procedure of the anterior resection, was the associated surgical procedure of the creation of an anastomosis. It was an adverse consequence of that treatment, properly given, that a stricture developed which then required dilatation but that following that procedure the anastomosis perforated. The anastomosis required surgical repair. That repair involved the establishment of a defunctioning loop ileostomy, which I apprehend is a bypass, and the creation of an artificial anus whilst the anastomosis is given time to heal. There was then the subsequent surgery for the closure of the loop ileosotomy. 10 All the foregoing I find were part of the treatment properly given by registered health professionals. I am mindful of Mr Frizelle's surgical notes referred to by counsel for the respondent which state, inter alia, "This patient underwent anterior resection by Phil Morreau for carcinoma. She now presents with a stenosis at the anastomosis which seems to be more technical than due to tumour". Counsel submits that the phrase "more technical than due to tumour" suggests that the stricture had nothing to do with the earlier treatment. I do not take that as being the interpretation of that statement but rather it suggests that the stricture is due to the surgical procedures rather than to any growth of a tumour. For this reason I discount the suggestion that the stricture was not a consequence of treatment. Finding as I do that the stricture of the anastomosis was part of the consequences of treatment, it is the evidence of Mr Frizelle that strictures may occur in approximately 3-5% of such cases and of those cases which require dilatation, perforation can occur in upto 5%, giving an overall incidence of stricture development and subsequent perforation of being less than 1%. The evidence of Mr Frizelle is the best that can be produced but I see no reason for it not to be accepted as being valid despite his statement that this particular field "is an area that needs further attention as far as surgical literature is concerned". For the foregoing reasons therefore I find that it has been established on balance of probability that the adverse consequences of such treatment as the 11 appellant received would not occur in more than 1% of cases where that treatment is given. The decision of the Corporation is revoked and the appellant is entitled to cover under the Act. The appellant is also entitled to costs which I fix at $750.00. DATED at WELLINGTON this is day of April 1998 deaths M J Beattie District Court Judge Clark.doc(gm)