Rodgers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 133 / 95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19 94/ 0106. BETWEEN MAVIS ELLA RODGERS of Levin Appellant (Appeal No. DCA 64/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON THE PAPERS The appellant has appealed against the respondent's decision declining her claim for medical misadventure under section 5 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant who is now age 68 lodged a claim for cover in March 1993 in which she said she had suffered a medical misadventure through inadequate hormone replacement after a hysterectomy operation on 31 July 1978. When her claim was lodged the respondent requested information from the appellant's General Practitioner, Dr Davenport who reported on 8 December 1993: "Mrs Rodgers had a hysterectomy and bilateral salpingo-oophrectomy in July 1978 at Palmerston North Hospital. According to her medical records she was treated with Progynova 1 m.g daily following the surgery. I note that in July 1980 she was documented as complaining of night sweats which had been occurring every night for at least one year. Sometime between December 1980 and June 1981 the dose of Progynova was increased to 2 m.g. daily. I note that in November 1992 Dr Desmond Dickson commented that she had 'major problems with endometriosis, and secondary problems following her total hysterectomy and oophorectomy in 1980. She feels her hormone replacement was deficient and certainly with the total lost of breast tissue and some ageing I suppose it was correct'. 2 I concur with the view that Mrs Rodgers has suffered a premature ageing. One may have expected the Progynova 1 m.g. daily to have been adequate oestrogen replacement, but in retrospect the evidence suggests that this was not the case." A report from Dr Dixon to the appellant's then General Practitioner on 4 March 1980 stated: Thank you for your letter about this patient who I saw in the Medical Clinic today. She tells me she has noticed increasing hair growth on the chin over the last eighteen months since she had a Hysterectomy and Oophorectomy. Since her Surgery she has been on Progynova - 1 mg daily and first noticed hair growth approximately six months after the Surgery but has noticed that it has become worse over the last six months. She deals with the hair growth primarily with plucking and has never tried shaving. She has not noticed any change in hair growth elsewhere but is upset by comments from her school pupils. Her general health is good although she tends to get a bit tired especially in the evenings and at the end of the week, and some tightness in her chest when she does a lot of talking. However, she has no chest pain on exertion but minimal dyspnoea on exertion. Apart from her Hysterectomy and Oophorectomy eighteen months ago she had a Colectomy for carcinoma twelve years ago, and also had a goitre when young which was treated with injections. Her father died at the age of 80, and her mother at the age of 92. She has five full siblings and six half siblings who are all well. There is no apparent family history of hirsutism. She is married with two children. She does not smoke or drink and her only medications at present are Progynova - 1 mg daily and Valium as required. On Examination: She is a rather nervous woman but clinically eythyroid with no goitre. She has a few coarse hairs on her chin but no hirsutism elsewhere. She has no other evidence of virilization and in particular no clitoral hypertrophy. Pulse was 70/min. in sinus rhythm. Blood pressure 130/80. Heart sounds normal, chest clear. Breast normal with no galactorrhoea. Abdomen was unremarkable apart from her Surgical scar. Femoral pulses normal. Fundi appeared normal. This woman therefore appears to have mild hirsutism confined to the chin without any evidence of virilization. I think this is probably related to her Oophorectomy and change in balance between her Oestrogens and Adrenal Androgen Secretion. I feel the problem could probably be best managed by local treatment either by plucking, shaving or electrolysis, but if there is any further deterioration then changing her dose or type of Oestrogen Replacement and perhaps even some Adrenal Suppression with Dexamethasone may be helpful. 3 I have arranged for some Screening investigations to exclude any underlying problem and I would like to review her again in two months' time for review of her progress.' The appellant said that she had become aware of her problem after consultation with Dr Sewell to whom the issue was referred in May 1994 but Dr Sewell had left her previous position at the Tararua Medical Centre and although she had visited her old medical centre she had unable to locate her records of the consultation. The appellant said Dr Sewell had advised her that her medication had not been adequate. All the medical evidence was referred to the respondent's Medical Misadventure Advisory Committee as is required under the 1992 Act. It noted that the nature of the claim was: " Claimant underwent a hysterectomy and bilateral salpingo-oophorectomy on 31 July 1978. In the years following the operation she suffered symptoms consistent with deficient hormone replacement, including night-sweats, loss of breast tissue, facial hair growth. Claimant had previously lodged an ACC claim, which was misplaced. The Committee considered that the operation in 1978 was appropriate to treat her endometriosis. Dr Wilde noted that it was not common practice to give hormone replacement treatment at all in 1978, and that the fact that Mrs Rodgers had been given some hormone replacement was quite enlightened for the time. The operation hastened the onset of menopause so hormone replacement therapy was given to help copy with this. Dr Wilde also noted that it was not necessarily usual to measure oestrogen levels in 1978, as blood tests were not readily available and measuring oestrogen levels from urine tests was not easy. The Committee considered that the management of Mrs Rodgers' case at the time was appropriate and within the range of normal practice in 1978. Proposed advice is that cover be declined as medical error has not occurred." On 26 May 1994 the Committee which comprised of three members including Dr David Wilde, an Obstetrician and Gynaecologist noted: "The committee has revisited this case in response to the letter from the claimant, challenging the proposed advice. We've considered the views that she has raised and are satisfied that the proposed advice should still stand and this now will become final advice, that cause and affect has not been established. That the history of endometriosis would have contraindicated an automatic high dose of HRT, so the management was appropriate. Therefore the final advice is for the claim to be declined, as medical misadventure has not occurred." The matter was reconsidered by the Medical Misadventure Advisory Committee which on 16 September 1994 on which Dr Wilde had been replaced by Dr D Court, an Obstetrician and Gynaecologist. The report of that Committee was: 4 "No new relevant information has been received that challenges the Committee's finding, therefore proposed advice is confirmed, and final advice is that cover be declined as neither medical error or medical mishap has occurred." On 17 November 1994 the respondent advised the appellant that as a result of the findings of the Medical Misadventure Advisory Committee her claim to have suffered medical misadventure was declined. The appellant applied for a review of that decision. In her application for review, the appellant explained to the review officer the details of the problems she suffered which she had set out more explicitly in a letter to the respondent dated 22 February 1995 in which she states: "As it is not easy talking on tape - and I certainly am aware of my hard-sounding voice, I just desire to point out a few factors to substantiate my claim. 1. I cannot over-emphasize the traumatic physical changes I was subjected to in the 31/2 years following surgery:- i. Loss of breast tissue ii. Facial hair growth - requiring frequent electrolysis iii. Deepening of my voice iv. Premature ageing. Just one of the above is sufficient to cause stress, let alone anything additional. 2. My whole physical well-being took an absolute hammering. I was never really well and was always working under par, feeling tired and worn out. Possibly the physical changes taking place at that time, would have contributed to this, as it was certainly a great heartache to observe the changes to my appearance. 3. I had never been subject to 'mood swings' on depression, - but both became part of the pattern of my daily life after the Oopherectomy. Those years were a nightmare not just for myself, but for my family also. 4. To be told by my Doctor (Rosa) after 31/2 years of torment mentally and physically, that (and I quote) - To get the hormonal balance correct, is a hit-and-miss affair, and with you we missed', was devastating to hear. 5. It was at this stage that I went in depression to a lady Doctor, (M. Sewell) who immediately doubled my medication and who without any hesitation told me that the damage already done was irreversible, and that I should have been on double strength right after surgery. This was extremely important - even if it was too much one's body would discard it, but disastrous if insufficient, especially for the initial period of hormonal adjustment. Unfortunately, as it was just a one-off visit Dr Sewell hasn't any record, but she has rung me acknowledging that she remembers my 5 visit, and is very sorry that she has no written confirmation of it. She is extremely sorry that she cannot do more for me in the regard. I realise that the use of hormone replacement therapy is more advanced these days, but honestly believe that insufficient doseage of HRT contributed greatly to the severe and devastating consequences. I knew of others, who had had more frequent follow-ups and balance tests, and were monitored more closely. They had 2 tablets daily. Thank you for giving time to my case and I can now but pray that I will receive justice, my claim be accepted." The review officer took note of the appellant's submission that at the time she received the treatment in 1978 it was not then a common practise to give hormone treatment and that, in addition, the quantity of the drug given was inadequate. However, the review officer considered that she had to give weight to the findings of the Medical Misadventure Advisory Committee which considered that at the time the treatment was given the members of the Committee considered it was enlightened' treatment and was then certainly appropriate. The review officer upheld the Corporation's primary decision. In her appeal the appellant has provided submissions similar to those which she had made to the review officer. I have also received submissions from Ms Zumbach on behalf of the respondent. Under the Accident Rehabilitation and Compensation Insurance Act 1992, medical misadventure is defined in section 5 as: "5. Definition of 'medical misadventure'---(1) For the purposes of this Act,- Medical error' means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results: Medical misadventure' means personal injury resulting from medical error or medical mishap: Medical mishap' means an adverse consequence of treatment by, or at the direction of, a registered health profession, properly given, if--- (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (6 ) The adverse consequence of the treatment is severe. )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. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured--- (a) Was known to the person; or (b) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be,- prior to the treatment. (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--- (a) Hospitalisation as an inpatient for more than 14 days; or Significant disability lasting for more than 28 days in total; or The person qualifying for an independence allowance under section 54 of this Act. The issue is one on which the Court has to be guided by the medical evidence and the onus is on the appellant to prove on the balance of probabilities that she has suffered a medical misadventure. Ms Zumbach submitted that the respondent accepts that causation is not in issue particularly as Dr Davenport had noted that, in retrospect, the daily dosage of oestrogen replacement was not adequate. The respondent accepts that insufficient hormone replacement therapy may be the caused of the appellant's problems. The question which I have to decide therefore, is whether the appellant's claim constitutes a medical misadventure. Under section 5 medical misadventure means 'personal injury resulting from medical error or medical mishap". The operation in 1978 appears to have been appropriately conducted without difficulty or complications and there is no suggestion that medical error or medical mishap resulted from the operation itself. The appellant's claim is that following the operation she received insufficient hormone replacement therapy. In order to qualify as a medical mishap in terms of the definition, the adverse consequence of the treatment occurring must be rare and the adverse consequence of the treatment must be severe. I agree with Ms Zumabch that there is no evidence that the effects of the injury on the appellant bring it within the definition of the word 'severe' as defined in section 5(4) which requires that the result is hospitalisation as an inpatient for more than 14 days or significant disability lasting for more than 28 days in total or the person qualifies for an independence allowance under section 54. As the appellant's claim is the allegation of the failure by a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances it follows to be considered under the heading of medical error". The only suggestion which might support a claim for medical error is Dr Davenport's suggestion that in retrospect the dosage prescribed at the time may have been inadequate. Dr Sewell does not recall suggesting a higher doseage to the appellant although the appellant confirmed that this is what occurred and an increased dose gave positive results. However, the members of the Medical Misadventure Advisory Committee gave a thorough examination of all details and considered that the treatment given following the operation "was quite enlightened for the time". Ms Zumbach submitted that the appellant's claim that "subsequent events show that different decisions might have produced better results" is specifically excluded as medical error by the definition in section 5 that "It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have 7 produced better results." On the contrary, the Medical Misadventure Advisory Committee was impressed by the forward looking nature of the treatment then prescribed. I agree with Ms Zumbach's submission and that the finding of the review officer should not be disturbed. The appeal is dismissed. DATED at WELLINGTON this 2/ day of November 1995 A W Middleton District Court Judge dea64-95.doc (nr)