McNamara v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 85 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARY MCNAMARA of Wellington Appellant (Appeal No. DCA 381/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS The issue is whether the appellant is entitled to cover under the Act for medical misadventure. The background to the appeal is that the appellant lodged a claim form with the respondent on 22 December 1995 in which she said she had suffered a medical misadventure by reason of the delay of the Christchurch Hospital authorities in its Accident and Emergency Department in diagnosing appendicitis which resulted in the rupture of her appendix and severe peritonitis. When the claim was lodged the matter was referred to the respondent's medical misadventure unit for investigation as a result of which the medical misadventure unit received a letter from the appellant's general practitioner, Dr B Gibson dated 22 July 1996. In a note to her report Dr Gibson's detailed information regarding the appellant's problems as she understood them. She said: 2 "This information isn't requested in your letter, but Mary first presented to AGE at Christchurch Hospital the night before her appendicectomy with abdominal pain. She was sent home and represented with increasing pain. (At this stage she was also vomiting and unable to walk. She was given pain killers and told that it was a 'tummy bug'). She was then taken by her parents to a different hospital (Princess Margaret) the following morning, and experienced very severe pain (which she attributes to her appendix bursting) en route to the hospital. On arrival she was admitted to the ward but not seen by a doctor until the evening, when she underwent surgery. There were also problems with further pain and post-operative infection ..." The history as provided by the hospital notes was that the appellant underwent an appendectomy on 9 November 1982 after having suffered two days of abdominal pain. She was discharged from the hospital but readmitted on 25 November 1982 with pelvic septis which was treated with antibiotics. The appellant was readmitted on 3 December 1982 with a reoccurrence of the signs of the pelvic infection, but this settled without surgical intervention. However, she was again readmitted on 11 December 1982 after an episode of abdominal pain and vomiting but no surgery was required. The appellant was finally cleared from the Outpatients Department on 10 January 1983 when there were no abnormal clinical findings except for some pelvic induration. Unfortunately, the respondent was unable to obtain records of the appellant's admission to Christchurch Hospital because it appears she was seen in the Emergency Department whose records had been destroyed after the expiration of seven years. The appellant's obstetrician and gynaecologist, Dr Tait, provided a report on 3 December 1996 in which he gave as his opinion that the appellant's pelvic adhesions were almost certainly secondary to her peritonitis in 1982. His opinion was that the pelvic adhesions meant that it was unlikely that the appellant would be able to conceive without the assistance of IVF. The Medical Misadventure Advisory Committee reported to the respondent that it had no evidence on which it could find that there had been a negligent misdiagnosis which would bring the claim within the s.5(7) of the Accident Rehabilitation and Compensation Insurance Act 1992. In its report it said: "The Committee notes that Ms Mcnamara was sent home with the apparent diagnosis of a 'tummy bug' and it is not unusual for people with generalised abdominal symptoms to be treated in this way. There is insufficient evidence of medical error. The Committee also considered Ms Mcnamara's complications following the appendicectomy and subsequent peritonitis however this was a consequence of the underlying condition, ie, a burst appendix, and not a consequence of the surgery.' 3 As a result of that advice the respondent notified the appellant that her application was declined because there had been no medical error or medical mishap. The appellant was advised that she had an opportunity to comment on the findings of the Medical Misadventure Advisory Committee. The appellant's comments and those of her doctor were succinctly outlined in the notes of a subsequent meeting of the Medical Misadventure Advisory Committee held on 14 February 1997. Under the heading "Discussion" the Committee noted: "This claim is for an alleged delay in the diagnosis of appendicitis which lead to peritonitis and ongoing complications. The Committee initially considered this claim on the 15 October 1996. We had noted at that time the claim revolved around an alleged misdiagnosis of appendicitis during two visits to the Christchurch Hospital A&E department on the 8 November 1982. The Committee notes that the following day Ms Mcnamara had re-presented to Christchurch Hospital and an appendicectomy was found to have peritonitis. In the years following this she has had further complications and now has infertility which is believed to be secondary to adhesions following the peritonitis. In its initial consideration of the claim the Committee noted the letter from the Patient Information Officer at Christchurch Hospital which states that as the incident was some 15 years previous the records from that period no longer existed. The Committee, on the evidence before it, was unable to establish that there was any negligence with respect to the diagnosis or failure to diagnose appendicitis on the 8 November 1982. The Committee has further reports before it, one from Ms Mcnamara dated 23 January 1997. She sets out the chronology of her presentation to the A&E department on the 8 December 1982. She states that the doctor she consulted at the A&E department on two occasions on the 8 December did not carry out any tests and sent her home. The following morning her father returned her to the Hospital where she was told her appendix had probably burst and her father took her to Princess Margaret Hospital by car. The Committee also has a letter from Dr Brenda Gibson, this is dated 29 January 1997. In this Dr Gibson sets out the circumstances as were explained to her by Ms McNamara. Dr Gibson states that from a medical perspective anyone persenting with acute abdominal pain would ordinarily undergo some basic blood and urine tests. These would include full blood counts, serum amylase, liver function tests and a urine test for microscopy and culture. She states that these were not carried out and Dr Gibson would consider this most unusual. She also takes issue with the Committee's comments that the ongoing problems of Ms Mcnamara are a consequence of the underlying condition following the appendicectomy. Dr Gibson states that this was an incorrect comment. The Committee has further considered the information in Ms McNamara and Dr Gibson's letter, we would affirm the previous statement that Ms Mcnamara's complications in the years following the appendicectomy and her subsequent peritonitis were a consequence of the appendicitis and the peritonitis rather than being causally related to the appendicectomy procedure itself. The Committee did not state that Ms Mcnamara had an ovarian cyst prior to her symptoms occurring and accepts that the problems that Ms Mcnamara has subsequently experienced were 4 causally related to her problems in 1982. Again pointing out that this was due to the underlying condition of appendicitis and the subsequent perforation rather than the appendicectomy procedure itself. With respect to the alleged negligent misdiagnosis appendicitis in 1982 the Committee accepts Ms Mcnamara's statements and also notes her recall of events in November 1982, however the Committee is prejudiced by the lack of information. It is some 15 years since the incident occurred, we have no records before us relating to her presentation to the A&E department in November 1982. For the Committee to accept that there was a negligent failure to diagnose the Committee would require more evidence which is unlikely to be available given the time lapse of 15 years and the absence of any records relating to the incident. Accordingly the recommendation of the Committee is that our previous advice of 13 October 1996 be affirmed. The Committee's finding was that it considered that there had been neither medical error nor medical mishap and the claim should be declined. The appellant then applied for a review of the respondent's decision to decline her application. The appellant gave evidence before the review officer who found that it had not been established whether the appellant would have developed peritonitis if an immediate diagnosis had been made when she first attended at the Christchurch Hospital. He also considered that as there has been a lapse of some 15 years between the events in 1982 and the lodging of the claim the respondent would be prejudiced in terms of s.63 of the Act in being able to make a definitive decision. The appellant has appealed against that decision. The appellant submits that while the lack of medical records may prejudice the respondent, she is equally prejudiced by the lack of those records and has therefore suffered a breach of natural justice. In submissions on behalf of the respondent Ms Rice notes that the two sections applicable are s.5 and s.63 of the Act. A medical mishap is defined in s.5(1) of the Act which prescribes that it is the adverse consequence of treatment which is properly given by or at the direction of a registered health professional and that the likelihood of the adverse consequence occurring must be rare and the adverse consequence severe. There is a specific definition provided in the Act in respect of what constitutes "rarity " and "severity", and the appellant's claim is that her pelvic adhesion and impaired fertility is due to the peritonitis which occurred in 1982. Ms Rice submitted that the appellant does not dispute the finding of the Medical Misadventure Advisory Committee that her problems were not caused by the surgery carried out in November 1982 and that therefore the review officer was correct to find that the appellant did not have cover on the basis of having suffered a medical mishap. Ms Rice submitted that in order to establish that the appellant has suffered a medical error the onus is on the appellant to show that there was a failure of a registered health professional to observe a standard of skill which could have reasonably been expected in the circumstances. In order to establish that a medical error has occurred by reason of the failure to correctly diagnose a condition it must also be established that the failure was negligent. The appeal must clearly be decided on the basis of whether the appellant suffered a medical misadventure by reason of medical error and also whether, pursuant to s.63, the respondent is 5 prejudiced by the delay in lodging the claim. I agree that the issue of medical mishap does not arise in this appeal. The appellant considers that had she been referred for diagnostic tests immediately she attended at the Christchurch Hospital, the onset of peritonitis might have been avoided. It is her submission that the failure to make those tests at that time constituted medical error and that she is therefore entitled to cover. The Medical Misadventure Advisory Committee took the view that the original diagnosis of a 'tummy bug' was at that stage not an unusual diagnosis and that the fact that she was then sent home at that time was not an unusual procedure. Unfortunately, the hospital notes for that time are not available so that neither the respondent nor the Court nor the appellant know the exact reasoning which led to the making of that diagnosis. The evidence establishes that the whole sequence occurred within a 24 hour period in that the appellant attended the hospital first in the early hours of the morning and on the third occasion at 6.30 am the same morning when she was then referred to Princess Margaret Hospital and surgery was carried out at 8.00 pm that evening. While the appellant has provided a report from her general practitioner, the general practitioner gave as her opinion that tests made following her first attendance at Christchurch Hospital "may have assisted" with a diagnosis. Dr Gibson can take the matter no further and she also concedes that the tests might not have been done if there was an obvious diagnosis of acute gastro- enteritis at that time. I do not consider that on the basis of the medical evidence there is sufficient evidence to persuade the Court that the registered health professionals at that time were negligent in the manner in which they treated the appellant. I therefore agree with the review officer that the appellant has not established that medical error occurred. While I have made the finding that the review officer was correct in holding that medical error did not occur, I also consider that pursuant to s.63 there was a long delay before the appellant lodged her claim with the result that the significant medical records were not available which must constitute a serious prejudice to the respondent. I do not consider that the review officer could have come to any other decision on the evidence available and I therefore confirm his decision. The appeal is dismissed. DATED at WELLINGTON this 8th day of April 1999 Acommandlet A W Middleton District Court Judge dca38197.doc(rd)