Ambros v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 107/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN MIKAEL AMBROS as the representative of THE ESTATE OF SUSAN AMBROS, deceased. (AI 102/02) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at Auckland on 8 May 2003 APPEARANCES Mr M Ambros in person. Miss F Becroft, counsel for respondent. Miss C Garvey, counsel for Dr Hamish Hart. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether Susan Ambros suffered personal injury, namely death, by medical misadventure being medical error whilst under the treatment of Dr Hamish Hart and other health professionals at Waitemata Health, North Shore Hospital. [2] The appellant is the deceased’s husband and has status to bring this appeal by virtue of Section 22(2)(b) of the Act. [3] The claim for cover made by the appellant was a claim for medical error alleged to have been committed by various treating professionals at North Shore Hospital’s Coronary Care Unit between 14 July and 20 July 2000. 102.02 (pg) 2 [4] This appeal arises from the respondent’s decision of 3 August 2001 whereby it declined the appellant’s claim for cover, it determining that there had been no medical error on the part of any health professional treating the deceased. [5] The background facts relevant to the determination of the issue in this appeal may be stated as follows: • Susan Ambros was aged 36 years at the date of her death. • On 8 July 2000 Susan Ambros was delivered of her first child, a healthy girl, by Caesarian section at North Shore Hospital. Mrs Ambros was discharged home with her baby on 13 July 2000. • At 2.00 a.m. on 14 July 2000 Mrs Ambros awoke with chest pain. A doctor was called who gave her oxygen, aspirin, and two doses of nitrolingual spray. An ambulance was called and she was taken to North Shore Hospital. • Certain tests and enquiries were made of her on her arrival at hospital. An ECG showed normal rhythm and no ischaemic changes. A chest x- ray was normal. She had no prior history of chest pain. • Despite those initial tests it was determined that her experience was likely to have been ischaemic in nature and she was therefore admitted to the Acute Assessment Ward for cardiac monitoring. Serial enzyme tests were obtained which disclosed a raised Troponin 1 of 4.05 (normal being less than 0.1). • Mrs Ambros was thereupon admitted to the Coronary Care Unit and entered that unit at 7.25 a.m. on 14 July 2000. • Dr Hamish Hart, Clinical Director of Medical Services, reviewed Mrs Ambros at 7.25 a.m. He noted lack of cardiac murmur and normal ECG and that raised Troponin levels can have a number of causes. Dr Hart ordered continuous observation and cardiac monitoring whilst further investigations were arranged. • Dr Hart reviewed Mrs Ambros’ condition at 10.30 a.m. on Friday, 15 July 2000 by which time the results of further tests were available. • Dr Hart determined to transfer Mrs Ambros to a ward and to have a CT pulmonary angiogram done after the weekend. • On 17 July Mrs Ambros had a CT pulmonary angiogram which was negative for pulmonary embolism. She continued to remain in the ward. 102.02 (pg) 3 • On the morning of 18 July the case was again reviewed by Dr Hart who noted that she had experienced no further chest discomfort. He arranged for an exercise ECG. The result of the exercise ECG was strongly positive of myocardial ischaemia. • Following a review of the exercise ECG Dr Hart determined to arrange for her to be transferred to Greenlane Hospital for a coronary angiogram. This was arranged with Greenlane Hospital for 20 July. • In the early hours of 19 July Mrs Ambros began suffering chest discomfort on her left side. She identified it as being her left breast rather than chest. GTN spray was administered with no change, but on application of a cabbage leaf to the breast the pain resolved. • Mrs Ambros suffered no further chest pain on 19 July. • Mrs Ambros was last attended by a nurse at 11.45 p.m. on 19 July when her Heparin infusion was renewed. • At 3.45 a.m. on 20 July when Mrs Ambros was next seen by the night nurse she was found to be not breathing and had no pulse. The emergency resuscitation team attempted to resuscitate her without success. • An autopsy report established that Mrs Ambros had suffered a myocardial infarct secondary to a spontaneous dissection of the right coronary artery. • On 21 November 2000 the appellant lodged a claim for cover for medical misadventure alleging medical error on the part of the medical team, in particular Dr Hart, who had been treating Mrs Ambros from the time of her admission to North Shore Hospital on 14 July 2000. • The claim was referred to the respondent’s Medical Misadventure Unit and it obtained a report from Dr Hart. That report, together with the patient’s notes from North Shore Hospital, were referred to three cardiologists, Dr Guy Armstrong, Dr Mark Webster and Dr Christopher Nunn. • It was following receipt of the advice of those heart specialists that the respondent issued its decision on 3 August 2001 declining cover for the reason that no medical error had occurred in the treatment of Mrs Ambros. • The appellant sought a review of that decision and a Review hearing took place on 24 January 2002. No further specialist medical evidence 102.02 (pg) 4 was presented for that Review hearing. In his decision dated 21 February 2002 the Reviewer upheld the respondent’s decision, finding that no medical error had occurred but that Mrs Ambros had suffered from a very rare condition that progressed in an unpredictable way. • In addition to these proceedings, the appellant also lodged a complaint with the Health and Disability Commissioner where the enquiry was to determine whether the medical services provided to Mrs Ambros were so provided with reasonable care and skill as required under the Code of Health and Disability Services Consumers’ Rights. • In a decision dated 19 December 2002 the Health and Disability Commissioner found that there had been no breaches of Mrs Ambros’ rights by any health professional at North Shore Hospital. [6] As previously noted the Health and Disability Commissioner conducted what can only be described as an extensive and comprehensive investigation into all procedures pertaining to the treatment of Mrs Ambros, including all procedures and treatment relating to the birth of her child. The report of the Commissioner has been produced and I formally indicate that the evidence which that report records has been taken as evidence in this appeal in accordance with the discretion which the Court has in respect of receipt of evidence by virtue of Section 159 of the Act. [7] At the hearing the Court received written answers to questions which had been put by the appellant to Nurse Heslin, who was the nurse on duty on the night shift on 19/20 July, and who had treated Mrs Ambros both on that night and on the previous night when she had experienced the chest pain. [8] In addition to Nurse Heslin’s evidence the Court heard evidence from Dr Hart who was extensively cross-examined by the appellant about the care provided to Mrs Ambros following her admission to North Shore Hospital from about 5.00 a.m. on 14 July to the time of her death in the early hours of 20 July. [9] The general assertion made by the appellant in support of his claim that medical error occurred in the care and treatment of Mrs Ambros was that those in charge of her 102.02 (pg) 5 care and treatment failed to provide a standard of medical care as recommended in the latest Guidelines. In a further particularisation of that general allegation, as far as I have been able to elucidate, the appellant alleges – (i) A failure to correctly identify myocardial ischaemia at the earliest opportunity. (ii) A failure to correctly assess the gravity of risk of further myocardial infarction. (iii) A failure to retain Mrs Ambros on a monitor in the Coronary Care Unit until her transfer to Greenlane Hospital. (iv) A failure to transfer Mrs Ambros to Greenlane Hospital earlier than proposed because of the high risk of myocardial infarction that ought to have been perceived. [10] As previously noted, Mrs Ambros’ case notes, including the report from Dr Hart, have been reviewed by three separate cardiologists, Dr Guy Armstrong, Waitemata Health Cardiology, Dr Mark Webster, Greenlane Hospital Cardiology, and Dr Christopher Nunn, Cardiologist of Hamilton. The comments and conclusions reached by those three specialists are as follows: 1. Report of Dr Guy Armstrong Dr Armstrong reviewed the notes and summarised the course of events from the time of Mrs Ambros’ admission to the finding of her without pulse. He then stated as follows: “It is very unusual for a woman of this age to develop myocardial ischaemia. Her admission ECG was normal and did not evolve any unequivocal changes over the course of her hospital stay. Nevertheless, she was treated appropriately as Unstable Angina from the time she was admitted to hospital. For someone with Unstable Angina her high risk feature was an elevated troponin. Low risk features were the rapid resolution of initial chest pain prior to admission, lack of definite ongoing symptoms, and lack of ST depression on the ECG. It is routine for patients like this who settle on medical therapy and undergo a satisfactory exercise test to be discharged home on Day 5. On Day 5 this woman had her treadmill test and because it was strongly positive she was appropriately retained in hospital for inpatient angiography. It may be speculated that this woman’s cardiac arrest would have been detected earlier and treated successfully if she had been on telemetry monitoring. However, she did not have sufficient high risk features to mandate such monitoring. In fact there are many patients with similar risk profiles managed in a similar fashion every day. Personally, I would not have requested telemetry in her case. The management of this patient seems entirely appropriate throughout.” 102.02 (pg) 6 2. Report from Dr Mark Webster Dr Webster also reviewed Mrs Ambros’ case notes and he too narrated the sequence of events down to her death and he then stated as follows by way of comment and conclusion: “This woman presented with clinical features of unstable angina. Coronary disease is very unusual in women in their 30s, in the absence of major risk factors. The initial management of anti-platelet and anti-thrombotic therapy was standard for this condition. With regard to risk stratification, she appears to have had few symptoms after her intitial presentation and most of her ECGs were normal. However, one tracing did show some abnormal but non-specific findings (date not photocopied, presumably the tracing reviewed by the house surgeon on 15 July 2000). There was T wave inversion in leads III and AVF and 1 mm of horizontal ST segment depression in leads V4 to V6. In addition, the elevated Troponin I and markedly abnormal treadmill exercise test clearly put her into a higher risk group for further cardiac events, and the plan for inpatient angiography in those circumstances was entirely appropriate. It is extremely unfortunate that she suffered a cardiac arrest prior to angiography being undertaken. Resuscitation might have been successful if her ECG had been monitored throughout her hospital stay. Current standard clinical practice is to monitor patients early post-myocardial infarction and those with symptomatic unstable angina. Monitoring all patients with a presenting diagnosis of unstable angina throughout their hospital stay, including those without ongoing chest pain, is not standard practice anywhere in New Zealand, and would require a considerable change in resource allocation. Other anti-anginal medications such as B-blockers might have been administered to this patient, although there is little randomised trial evidence that they alter the natural course of the condition. The medications with evidence based efficacy (aspirin, heparin) were used in this patient appropriately. In summary, the management of this patient during her hospital course at North Shore Hospital is consistent with current standard clinical practice. I believe that the autopsy subsequently demonstrated that she did not have coronary artery disease, but rather a much more rare condition of coronary artery spontaneous dissection. This affects women more than men, often at a younger age than coronary disease, and may occur in those post-partum. It can only be diagnosed by coronary angiography. The natural history of this condition is even less predictable than that of coronary disease.” 3. Report from Dr Christopher Nunn Again, Dr Nunn reviewed the sequence of events as taken from the North Shore Hospital case notes and he also had the opportunity of reviewing the post-mortem findings. Dr Nunn’s comments are as follows: “This lady presented with a history and laboratory findings highly suggestive of an acute coronary syndrome. She was managed appropriately according to standard accepted guidelines. In-patient exercise testing was undertaken in view of the elevated troponin levels and ECG changes. The finding of an early positive test led to appropriate management in the recommendation of coronary 102.02 (pg) 7 angiography. Throughout this time the patient remained symptomatically and haemodynamically stable. It is standard practice in this context to continue anticoagulation however cardiac monitoring is not routinely undertaken in the absence of further signs of instability. Although there is clear evidence of cardiac ischaemia there was nothing to suggest that this lady was likely to suddenly deteriorate prior to her planned coronary angiography. The timing of the coronary angiogram would in general be standard throughout most parts of the world. This investigation in general would only be expedited in the setting of symptoms or signs suggesting increasing instability such as ongoing pain and/or electrocardiographic or haemodynamic changes. None of these features were present. This patient was therefore extremely unlucky in having suffered an unpredictable event in the setting of apparent stability. I have reviewed the two independent reviews of this case by Drs Guy Armstrong and Mark Webster. I fully concur with their independent conclusions. Specific Questions 1. Has the claimant suffered physical injury as a result of medical treatment? No. The patient died from coronary artery dissection that was entirely spontaneous and unrelated to any treatment she received. 2. Has medical error occurred? No. This patient received standard medical care according to latest guidelines. 3. Has medical mishap occurred? No. The patient did not suffer an adverse consequence of treatment but instead had a very rare condition that progressed in an unpredictable way leading to her death. Criteria for medical mishap have therefore not been met.” [11] The principal complaint made by the appellant was that the seriousness of his wife’s condition had not been identified as it ought to have been and that she ought to have been retained on an ECG monitor in the Coronary Care Unit right to the time when she was to be transferred to Greenlane Hospital for the scheduled coronary angiogram. These matters were put to Dr Hart by the appellant in cross-examination and the evidence of Dr Hart was as follows: • At the time Mrs Ambros was transferred from the Coronary Care Unit to a ward she was regarded as being an intermediate risk. That risk assessment was made on the basis of a normal ECG, the absence of 102.02 (pg) 8 any further chest pain, the possibility of it being pulmonary embolism as opposed to an ischaemic type chest pain. • Following the taking of a CT pulmonary angiogram pulmonary embolism was excluded from being a possible diagnosis and the diagnosis became myocardial infarction. • The patient appeared stable but it was determined that she undertake an exercise test. • The exercise test was strongly positive and the decision was then made that she must have an in-hospital angiogram. That was the risk stratification made at that point. • Greenlane Hospital prioritise the patients waiting for angiograms and it was they who prioritised Mrs Ambros for the morning of Thursday, 20 July. • There are resource constraints on the hospital and only five patients can be monitored in Coronary Care at any one time; it therefore requires prioritisation by assessment of risk. In an ideal world all coronary patients would remain on monitors whilst waiting for or receiving treatment. The resources are not available at North Shore Hospital for this nor are they so in any hospital in New Zealand. • At the time Mrs Ambros suffered the chest pain on 19 July it was not considered an ischaemic pain. The patient herself said that it was different from the chest pain she had experienced on 14 July and rather was a pain in her breast. A short time earlier she had been expressing milk as she was maintaining lactation. She did not respond to the GTN spray but did respond to the cabbage leaf. • It was not a question of Mrs Ambros not being at risk but rather it was the size of the risk relative to other patients in the Coronary Care Unit. The assessment was that her risk was less than for some other patients and that she could therefore be moved to a ward. • The purpose of the angiogram was to confirm whether Mrs Ambros had coronary artery disease. It was considered that at her age it would be a single vessel that was affected and could be treated with angioplasty. If she had had the angiogram it would have shown extensive dissection of the right coronary artery. • The fact that Mrs Ambrose identified her chest pain as being more breast and different from the chest pain earlier experienced was a red 102.02 (pg) 9 herring which was dragged across the trail and which took the treating nurse away from heart pain. In retrospect I suspect that her pain was angina. [12] Nurse Kerrie Heslin was on ward duty and in charge of Mrs Ambros at the time she experienced chest/breast pain early on 19 July and was again on duty at the time Susan Ambros was found without pulse. In her written evidence she stated as follows: • The episode had all the signs of pointing to breast discomfort with no signs of cardiac involvement. It was only because of her history that I gave her GTN spray to reconfirm to Susan and myself that the discomfort was breast related as we both suspected. • I applied the cabbage leaf and she said this was soothing. She settled and went back to sleep. Cabbage leafs are routinely kept as stock only on the maternity ward but Susan had used this previously and there was a supply in the fridge. When Susan awoke in the morning she said that she was feeling fine. • Cabbage leaves do have pain relieving attributes for breast discomfort and engorgement. To my knowledge they have no connection with the relief of cardiac related pain. [13] In addition to the expert advice which the respondent’s Medical Misadventure Unit had obtained, the Health and Disability Commissioner also sought and obtained independent advice from Dr David McHaffie, Cardiologist, and in his advice to the Commissioner he stated, inter alia, as follows: “I am satisfied that the cardiology staff at North Shore Hospital made reasonable diagnostic and management decisions. They considered important pulmonary conditions such as pulmonary embolism and excluded those diagnoses with appropriate tests. When the combination of chest pain symptoms, serum troponin elevation and T-wave changes in the ECG was appreciated the patient was monitored and treated according to appropriate CCU standards. With settling of chest pain symptoms and evidence of improved mobility Mrs Ambros gained confidence to consider returning home to nurse her new baby. During this phase of settled symptoms, stable physical findings, good mobility about the ward and improved appearances in her resting ECG Mrs Ambros did not require ECG rhythm monitoring. It was appropriate that in-hospital exercise testing was done and following the positive changes in that test it was appropriate that she should be referred for in-hospital coronary angiography. 102.02 (pg) 10 Although, with hindsight, we could say that it might have been an advantage to have done coronary angiography for Mrs Ambros at an early stage in her illness I do not consider that it was a fault in clinical management to fail to transfer her to Greenlane Hospital on the 18th of July.” [14] In summary, Dr McHaffie advised that Mrs Ambros had been provided with health services with reasonable care and skill and to the requisite standard. He found no fault with the way that she had been treated during the time that she was under the care of the medical staff at North Shore Hospital. DECISION: [15] The appellant seeks cover for the death by medical misadventure of his wife, that misadventure being medical error. [16] Medical error is defined in Section 36 of the Act as meaning – “The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.” The definition goes on to state that examples of such failure include the negligent failure to diagnose correctly an insured's medical condition. It also states that medical error does not exist solely because desired results are not achieved or because subsequent events showed that different decisions might have produced better results. [17] During the time that Mrs Ambros was at North Shore Hospital she was under the collective care of the cardiac team at North Shore Hospital and all persons who were attendant upon her would be persons who would be required to observe the standard of care required by Section 36 of the Act. [18] A substantial amount of evidence, both as to fact and as to expert opinion, has been produced both to this Court and to the Inquiry by the Health and Disability Commissioner. Both those inquiries were prompted by the appellant who, it has to be said, has sought to analyse every action, every test result, and every procedure in an endeavour to establish that in some way responsible health professionals have been negligent. [19] The principal complaint of the appellant is that his wife was not kept on an ECG monitor and was not sent to Greenlane Hospital for her angiogram at an earlier point in time. These complaints come on the back of a contended failure by the medical staff to 102.02 (pg) 11 have identified the particular condition with which Mrs Ambros came to the hospital sooner and by that failure they failed to identify correctly the level of risk that her condition placed her in. [20] All these matters have been exhaustively considered by independent cardiac specialists and in each case those specialists have found that the matters asserted by the appellant do not have substance and that at all stages of Mrs Ambros’ treatment and care she received same to the standard to be expected by her. [21] I have had the opportunity of seeing and hearing Dr Hart give extensive evidence by way of explanation for all the actions which he and his medical staff carried out between 14 and 20 July 2001. I am satisfied with the reasons that he has given as to why Mrs Ambros was taken off the monitor when she was, and why her risk was assessed as being intermediate at that time, and why when the exercise test did identify the likely nature of her condition measures were immediately set in train to arrange for an in-patient angiogram at the earliest time commensurate with that risk and with the competing requirements of other persons throughout the greater Auckland area on the Greenlane facility where that procedure was required to be carried out. [22] Dr Hart was at pains to explain how there are constraints on the facilities available for heart patients at hospitals in New Zealand, particularly in Auckland, and that at all stages patients have to be prioritised one against the other and that only a few at any time can get the “gold standard” treatment (my words not his). There is a never-ending demand for that gold standard treatment and at all times health professionals, such as Dr Hart, are required to make difficult decisions on who to place on and who to take off that particular level of treatment. [23] I am satisfied from the explanation which I have heard and of which I have read that at all stages of Mrs Ambros’ treatment she was being given the correct standard of treatment commensurate with the risk that she was assessed as displaying at the particular time and that at no stage were there any signs of impending catastrophe which would make the particular progress which was charted as to be too slow or too late. [24] My findings as stated above are reinforced by the fact that Mrs Ambros did not suffer an ordinary heart attack but suffered what is a comparatively rare event, namely 102.02 (pg) 12 a coronary artery dissection. This was the finding of Dr Stables, the Pathologist, who carried out the autopsy. He went on to explain that condition as follows: “Spontaneous coronary artery dissection is extremely rare but well- documented. Generally it occurs in younger women and in about 27% of reported cases it has occurred in the peri or post-partum period. It may present as non-specific symptoms, angina, an acute myocardial infarct or as sudden death. A literature review of those cases occurring in the peri-partum period, cites a mortality rate of 48%. This same article states that overall, spontaneous coronary artery dissection presents as sudden death in 50% of cases and acute fatal myocaridal infarction in an additional 18%, with a survival rate of 33%. In 65% of cases it is not diagnosed until autopsy. In some cases medical and/or surgical treatment has been successful.” [25] In conclusion, I note that the Health and Disability Commissioner found no breaches of the Code of Service with which his office was concerned, and in the context of a comparison between the particular clauses of that Code and the meaning of medical error, there is virtually no distinction and certainly a breach of one would mean a breach of the other. The Code stating – “Every consumer has the right to have services provided with reasonable care and skill.” In those circumstances I find that this Court can note and adopt the findings of the Commissioner that no breach of the Code occurred and similarly this Court finds that there has been no breach of the duty of care required to be observed by a registered health professional in the treatment of the patient. [26] For the foregoing reasons therefore the respondent’s decision to decline cover for the unfortunate death of Mrs Ambros was the correct decision. This appeal is dismissed. DATED at AUCKLAND this 5th day of June 2003 M J Beattie District Court Judge 102.02 (pg)