MT v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 91 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER 17195 0829 of an appeal pursuant to section 91 of the Act BETWEEN MT of Rotorua Appellant (Appeal No. DCA 277/ 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 MS Lake for appellant R F Irving for respondent DECISION OF JUDGE A W MIDDLETON There will be an order that no details are to be published which will identify this appellant and accordingly the appeal decision will be issued under the initials MT. The issue in the appeal is whether the appellant has suffered a medical misadventure which entitles her to cover under the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant underwent a tubal ligation operation in December 1993 but on 19 February 1995 had to be admitted into the local hospital with a ruptured ectopic pregnancy in her right fallopian tube. She underwent surgery that day and a 2 salpingectomy was performed on her right fallopian tube. The appellant was discharged from hospital on 24 February 1995. In a report to the Medical Misadventure Committee the appellant answered the question as to the effect of the procedure on her normal activities and stated "I find it difficult to lift things still, anything related to weight and experience pain in lower stomach if I stand too long." On 3 March 1995 the appellant lodged a claim with the respondent for cover under the Act. The respondent referred the claim to its Medical Misadventure Committee which issued a decision on 30 August 1995 and its findings were: 'The Committee were of the opinion that Medical Mishap has occurred as they considered that the Ectopic pregnancy is causally related to the failed Tubal Ligation. This opinion, is however inconsistent with the Corporation's policy on claims where an Ectopic pregnancy followed a failed sterilisation procedure. Conclusion : It is the consensus opinion of the Committee that MT does not have cover under Section 8(2) (c) of the Act, as medical misadventure resulting from medical mishap or medical error has not occurred." The respondent notified the appellant of this decision on 7 September 1995 and she applied for a review of that decision. In his decision, the review officer noted that it was the policy of the respondent to decline a claim for ectopic pregnancy following a failed sterilisation procedure and he declined the application for review. In so doing, the review officer stated that he was "obliged to follow Corporation Policy" but I do not agree that this is so because a review officer is required by section 90 of the Act to act "independently". Mr Lake submitted that by virtue of the decision in ACC v Auckland Hospital Board (1980) 2 NZLR 748 it has been accepted that if pregnancy occurs following a tubal ligation and it is established that the pregnancy is attributable to operational negligence or difficulties of an undesigned variety then this can amount to personal injury by accident. He submitted that it could be presumed that the procedure which was stated by the surgeon to be "Pomeroyd tubal ligation with added diathermy to stumps" failed as sperm cells were able to impregnate the appellant. He submitted that it could be presumed that if the diathermy failed it could be for one of only two reasons, being that it had been incorrectly applied by the surgeon or the machine delivering the electrical charge was faulty. However, he conceded that the operation note disclosed no difficulty with the machine. Mr Lake submitted that the issue is whether medical error or medical mishap has occurred within the terms of section 5 of the Act. In his submission, a medical mishap had occurred because the adverse consequence of the treatment was rare, being less than 1%. In addition, he submitted the appellant met the criteria for rarity and the criteria for severity because she had suffered a significant disability which lasted more than 28 days in total 3 Mr Lake submitted that a medical error in terms of section 5 must be an error which occurred at the time of the original treatment or procedure while the medical mishap means an adverse consequence of the treatment after taking into account rarity and severity. Mr Lake submitted that while the respondent relied on the submission that there was no causal nexus between the pregnancy and the treatment because of the intervening act of sexual intercourse it was the failure of the procedure which resulted in pregnancy. Ms Irving submitted that in order to qualify for cover under section 5 of the Act the appellant must establish that she has suffered "personal injury resulting from medical error or medical mishap." She submitted that the issues to be considered are therefore: was the ectopic pregnancy in this case personal injury? was there any medical mishap? if there was a medical mishap and the ectopic pregnancy was a personal injury did the pregnancy result from that medical mishap? Ms Irving submitted: 1. That following the decision in DK v ARCIC (1995) the Court has accepted that pregnancy by itself was not personal injury by accident. This decision adopted the statement of Cooke P L v M (1979) 2 NZLRA 519 where he stated at page 530 "similarly it does not seem to me that the pregnancy, however unwanted, or the childbirth can naturally be described as personal injuries." 2. That this appellant did not suffer a pregnancy, but an ectopic pregnancy situated in her fallopian tube and that such an ectopic pregnancy is itself a naturally occurring physiological event which cannot be equated with physical harm or damage. However, an ectopic pregnancy may cause personal injury but in this case there is no evidence that this appellant has suffered personal injury as she suffered no physical injury following the procedures which were performed. 3. In relation to the question of medical error such an allegation has not been raised in this case. That the incidence of ectopic pregnancy rises following a failed tubal ligation because of the damage to the fallopian tubes and that such damage is an intended result of that type of procedure. 4. In relation to medical mishap the appellant must establish that there has been an adverse consequence of treatment appropriately performed by a registered health professional and that the adverse consequence was both rare and severe. 5. That there was no adverse consequence arising out of the tubal ligation operation the only consequence being an ectopic pregnancy which is a naturally occurring event. 4 6. On the question of rarity, the evidence was that a failure can occur in approximately 1% of cases so that the likelihood of a tubal ligation failing does meet the requirement of rarity. 7. However, as regards to severity, the appellant was hospitalised for only five days and that there was no significant disability which lasted more than 28 days. That the appellant's only complaints have been of functional limitation which diminished with the healing process and that there was no evidence that the appellant has suffered any significant ongoing effects. 8. That the appellant has failed to establish a causal connection between the appellant's ectopic pregnancy and the alleged medical mishap of the failed tubal ligation. That there is no causal connection between the failed tubal ligation and the ectopic pregnancy because of the intervening act of sexual intercourse. The issue governed by section 5 of the Act as far as it applies to this appeal states: "(1) For the purposes of this Act, - "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 professional, 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; (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% 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 - ( a ) hospitalisation as an impatient 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." 5 (5) Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless medical error or medical mishap occurred at the time of the procedure." It has to be accepted that this appellant underwent the tubal ligation for the purpose of preventing further pregnancies and she would certainly have been disappointed when she found in 1995 that the operation itself had not been successful. I do not agree with Mr Lake's submission that one can simply assume because the operation failed that either the surgeon had not performed his duties appropriately or that the machine itself had failed. It is accepted that there is a risk of failure although the risk is slight and it certainly comes within the criteria of rarity. As to the question of severity, the appellant does not meet the requirement that she was hospitalised for 14 days or more and I do not accept her submission that the continued difficulty of lifting things can be equated with a "significant disability lasting for more than 28 days in total." I consider that those words indicate a much more severe and continuing disability rather than an occasional difficulty in undertaking the lifting of various objects. Accordingly, I agree with Ms Irving's submission that the pregnancy which this appellant suffered does not meet the test of severity. In addition, I accept Ms Irving's submission that even if it were accepted that ectopic pregnancy did constitute personal injury and that it is a medical mishap in that the requirements of rarity and severity are met, the appellant has not established that it resulted from a medical mishap. I agree that the causal connection between the failure of the tubal ligation and the ectopic pregnancy was broken by the intervening act of sexual intercourse. The appeal is therefore dismissed. DATED at WELLINGTON this 25 day of September 1996 beremadubai A W Middleton District Court Judge dc277-95.doc (nr)