MM v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 79 ( 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19 95 0175 BETWEEN MM of Rotorua Appellant (Appeal No. DCA 217/95) 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 August 1996 APPEARANCES Mr MS Lake for appellant MS R F Irving for respondent DECISION OF JUDGE A W MIDDLETON The issues in this appeal are sensitive to the appellant whose name is not to be published nor is any information which will identify her. The appeal will be known under the initials MM. The appellant underwent a tubal ligation operation on 9 July 1992 which was unsuccessful as the appellant became pregnant in December 1994. The appellant lodged a claim for cover with the respondent on 28 April 1995 and by letter dated 15 May 1995. She was advised that her claim had been declined on the grounds that pregnancy following a sterilisation operation, while it is an undesired outcome of the surgery, cannot be termed a personal injury. The appellant applied for a review of that decision. 2 In her decision the review officer noted that the appellant had complained that she was "horrified" when she found that she was pregnant after having undergone the tubal ligation. Her general practitioner had noted that the failure rate for tubal ligations is 0.2 percent. The review officer then reviewed s.5 of the Act and its application to this appellant and upheld the Corporation's policy which is that there is no causal nexus between the treatment and the pregnancy because of the intervening act of sexual intercourse. She declined the application for review. Mr Lake submitted: 1. That it is accepted following the decision of ACC v Auckland Hospital Board (1980) 2 NZLR 748 that pregnancy of itself is not personal injury by accident. However, following a tubal ligation operation an unexpected and unwanted pregnancy attributable to operational negligence does amount to personal injury by accident. 2. That the appellant did suffer a "mental injury" because she was "horrified" when she found that she was pregnant. That the issue is whether there is evidence of a physical injury to which those mental consequences might attach in order to satisfy the definition of personal injury in s.47 of the Act. He referred to the operation notes from which it appeared that the Falope's ring could not have been placed on the left tube because it was "not occluded at all" and had it ever been attached there would have been some identifiable sign on the tube. 3. That it followed that this pregnancy was an undesired event following the tubal ligation procedure which can be categorised as personal injury in a physical context because it caused disruption within the mother who had to carry the foetus up until the birth of the child with the resulting mental effects. 4. That the appellant's pregnancy was an adverse consequence of treatment which was the tubal ligation which failed to produce the desired result. 5 . That as the recognised failure rate of the procedure is 0.2 percent the failure in this case satisfied the requirement of s.5(2). 6. That in relation to the question of "severity" under s.5(4) the appellant had a significant disability lasting more than 28 days because the child was carried to full term. 7. That as to causation, had the procedure been properly undertaken sexual intercourse ought not to have resulted in pregnancy. Ms Irving referred me to the relevant sections of the Act and in particular s.5 on the question of medical misadventure. She submitted: 1. That in order to qualify for cover under s.5, there must be "personal injury resulting from medical error or medical mishap". 2. That following the decision of the Court in DK v ARCIC (90/95) pregnancy is not personal injury by accident. 3. That in L v M [1979] 2 NZLR 519 Cooke P stated: 'Similarly it does not seem to me that the pregnancy, however unwanted, or the childbirth can naturally be described as personal injuries.' 4. That tubal ligation did not result in any personal injury because pregnancy is a natural physiological event. 5. That the appellant had not suffered any physical injury as a result of the birth of the child. 6. In the alternative, if it is accepted that the appellant did suffer a personal injury it did not constitute medical misadventure. 7. That the appellant suffered no adverse consequence arising out of the tubal ligation operation, the only consequence being a pregnancy which is a natural event and was not an adverse consequence of the treatment. B. That the respondent concedes that on the evidence the failure of the operation satisfies the requirement of rarity under the section. 9. That in order to establish severity under s.5(4) the appellant must show that she was hospitalised as an inpatient for more than 14 days or that she had a significant disability that lasted for more than 28 days in total. 10. That if it is accepted that pregnancy is a personal injury and that it is a medical mishap in that the requirements of rarity and severity are met, the appellant must establish that the personal injury resulted from a medical mishap in that there is a causal connection between the failure of the tubal ligation and the appellant's pregnancy. That the chain of causation in this case was broken by the intervening act of sexual intercourse. While the appellant underwent the operation for the purpose of precluding further pregnancies, it is understandable that she should be upset by its failure. However, in order to obtain cover under the Act, the appellant must establish that she has suffered a personal injury by accident and if she claims that it is the result of a medical misadventure then she must bring herself within the confines of s.5 of the Act. I agree with Ms Irving's submissions that the law as it has evolved accepts that a pregnancy does not by itself constitute a personal injury. 4 Even if I am wrong in that finding, the appellant must establish that she has suffered personal injury which is medical misadventure. It is clear that she has not suffered a medical mishap within the terms of s.5 because the alleged adverse consequence of the failed tubal ligation was not both rare and adverse. While Ms Irving conceded that the appellant had satisfied the requirement of rarity she could not satisfy the requirements of s.5(4) as to severity and I agree with that submission. There is clearly no evidence that she was hospitalised as an inpatient for more than 14 days nor did she suffer a significant disability which lasted more than 28 days in total. I do not accept Mr Lake's submission that a full term pregnancy can be equated with a significant disability lasting for more than 28 days in total. I agree with Ms Irving's submission that the causal connection has been broken by the intervening act of sexual intercourse and it was a result of that act that the alleged injury of pregnancy occurred. Accordingly, I do not consider that the appellant has established the onus on her to show that she has suffered either personal injury by accident per se or as a result of a medical misadventure. The appeal is dismissed. DATED at WELLINGTON this 12 thday of September 1996 A W Middleton District Court Judge de217-95.doc(rd)