Watts v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 193 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN REBECCA IVY WATTS DCA 121/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21st day of August 1998 APPEARANCES: Miss H Ellis, counsel for appellant Miss D Fotiades, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant suffered personal injury by medical misadventure, being medical error. 2 Background The appellant and her twin sister were born on 22 March 1991 by caesarean section at 36 weeks gestation at National Women's Hospital in Auckland. The birth weight of the appellant was 2320g and that of her twin sister was 2280g. Immediately after birth the twins were transferred to the special care baby unit at the hospital. Both were nursed in incubators and were fed by nasogastric tube and bottle with normal infant formula. At approximately 60 hours of age a cerebrospinal fluid examination of the appellant diagnosed bacterial meningitis. The diagnosis was confirmed as Enterobacter sakazakii meningitis. Despite being immediately placed on antibiotics the appellant suffered complications which resulted in brain damage and spastic quadriplegic. The appellant's twin sister was similarly diagnosed as having the same strain of meningitis but she responded well to antibiotics and within 48 hours all signs of the culture had gone. Today she is a normal healthy child whereas the appellant is not. The appellant's mother lodged a claim for cover and treatment expenses in August 1994 and the matter was referred to a Medical Misadventure Advisory Committee (MMAC) and for the purposes of its investigation it sought the report of the Senior Paediatrician at National Women's, Dr Simon Rowley. In his report he stated, inter alia: "Meningitis is a rare but well described complication of prematurity and has a high morbidity and mortality. In this situation there is no evidence that this organism was colonising other babies or areas on the Neonatal Unit. No 3 previous cases of this organism causing infection and no subsequent cases have been observed on the Neonatal Intensive Care Unit. I will enclose a copy of an article on enterobacter sakazakii meningitis in neonates from the Paediatric Infectious Disease Journal 7:196-199, 1988. As you can see this organism is exceptionally rare, only 12 cases having been reported in the literature prior to that time. Of the 16 babies documented in the review in this paper with E.sakazakii infections, eight died giving a case fatality rate of 50% and only one of the surviving babies with meningitis was apparently normal, but follow up was brief in this child. The paper comments that little is known about the source or mode of transmission of neonatal E.sakazakii infection. In my opinion there is no evidence that infection control standards were not adequate or that poor hygiene was a contributing factor in the development or nosocomial transmission of the infection. In Dr Farmer's absence one might seek further opinion from a Paediatric Infectious Disease Consult if further clarification is needed." In its deliberation the MMAC found that the origin and mechanism for the transmission of this particular meningitis bug could not be established and there was no way that it could attribute the infection of the child to the actions of a health professional. The committee was satisfied that there was no evidence of a causal link between the actions of a health professional and the child subsequently contracting meningitis. For this reason advice to decline the claim was given and the Corporation duly advised the appellant's parents that the claim for cover was declined on those grounds. The appellant's parents sought a review of that decision. At that review hearing the appellant's father gave evidence of what he had seen and observed at the hospital and counsel for the appellant made submissions in 4 support of a claim for cover in respect of medical misadventure. After that hearing the review officer sought to obtain independent medical opinion and in that regard sought the opinion of Professor Diana Lennon, Associate Professor of Infectious Diseases at the Paediatrics Department of the University of Auckland. Following receipt of Professor Lennon's report the review officer delivered his decision. He found that this particular form of meningitis is very rare and its adverse consequences are severe, within the meaning ascribed to those two words in the Act, but he held that it had not been shown that there was a causal connection between the treatment, which was looking after the babies in the special unit, and the adverse consequence. He held that it had not been shown on the balance of probabilities that the treatment infected or allowed the baby to become infected. He noted from the evidence that it was the baby's formula that was a little more likely than any other possibility but that had not been proved to the balance of probabilities in his opinion. He considered other causes as being as likely and these included other babies, hospital personnel, inanimate objects and feeding materials and nasogastric tubes. He ruled that merely because the disease was caught in hospital, that did not make it medical misadventure. He further ruled that medical error could not be established. Although the review officer considered both medical error and medical mishap he ruled that there was no evidence to support a claim of medical error and the appeal to this Court has in effect concentrated on the issue of medical mishap. In fact the issue is even narrower than a consideration of that concept as it is conceded by counsel that the necessary criteria of rarity and severity, 5 required by the Act, are made out and this Court confirms that this is the case. Therefore the only issue that falls to be determined in this appeal is whether the personal injury sustained by the appellant was as a consequence of treatment by or at the direction of a registered health professional. In other words did the appellant's infection with meningitis occur in the course of treatment. The relevant statutory provision which this Court is called upon to consider is that of the definition of "medical mishap" in s 5(1) of the Act where it states that it 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 (b) the adverse consequence of the treatment is severe. The word "treatment" is not defined in the Act but it is a word which is used in many provisions and possibly in slightly different contexts. In s 5, being the section on medical misadventure, the word is used both as a noun and as an adjective (as in treatment procedures). For the purposes of personal injury resulting from medical error or medical mishap that occurs in a clinical trial, there is a specific definition in s 8A where it says the term "treatment" includes anything done or omitted as part of a clinical trial. The Court suspects that this particular definition was included as one of the aftermaths of the Cartwright inquiry where of course one of the allegations made against the health professionals was that certain persons were given treatment for cervical cancer and others were deliberately omitted from receiving treatment. Then there is the use of the word in the context of s 27 of the Act where the Corporation is required to contribute to the cost of any treatment in respect 6 of personal injury that is covered by the Act. Under that provision various regulations have been promulgated. The Court does not propose to go through the Act and the regulations and seek to identify and then individually distinguish the way the word "treatment" and its meaning can vary, suffice it to say that the word can have a wider or more restricted meaning depending on the context in which it is used. The meaning given to "treatment" in the Concise Oxford Dictionary is " the application of medical care or attention to a patient". In the Collins Concise Dictionary it is stated as meaning " the application of medicines, surgery etc. to a patient - the act practise or manner of treating." In the accompanying Oxford Thesaurus "treatment" is stated as being "behaviour (towards), conduct (towards), action (towards), handling (of), care (of), management (of), dealing ( with)." The common thread through those various definitions and meanings in the context of "treatment" in s 5 I find to be that there must be some act or omission to do with the care or management of the patient. In the decision of Veitch (32/98) I stated that in the light of those dictionary meanings the word "treatment" "clearly connotes some positive action by some means which has the effect of being actual medical care or attention". I find that that meaning holds good and is applicable to the meaning of "treatment" for the purposes of s 5 of the Act. I now turn to consider "treatment" in the context of the facts as I find them in this case. In that regard I rely almost entirely on the evidence given by Professor Lennon in her five page report to the review officer. Various passages which I find are relevant are as follows: "Prior to the diagnosis of meningitis the baby was nursed in an incubator in the special care baby unit (SCBU), monitored closely for hypoglycaemia with 7 regular blood sugars, fed by nasogastric tube and bottle with normal infant formula. Rectal temperatures taken two hourly were considered to be normal in the first 48 hours of life. Blood glucose was not stable by 30 hours of age and an IV line was established to deliver dextrose with some stabilising of the blood glucose as a consequence. During birth and subsequently in the nursery infants are usually experiencing their initial encounter with microbes. Until birth, the newborn does not have an indogenous flora and can acquire almost any organism to which he/she is exposed. The resulting skin and mucosal flora reflects that of the maternal genital tract (in the case of a vaginal delivery) and the nursery. The skin of infants delivered by caesarean section is sterile soon after birth in contrast to that of infants born per vagina. The immunologic immaturity of newborn infants, especially those born prematurely (less than 37 weeks gestation) and any invasive procedure, renders newborns especially susceptible to infection. In the newborn both colonisation and infection are nosocomial (hospital acquired). Thus infection acquired either during or after birth by infants born in the hospital are nosocomial. However most infections that develop in the first 48 hours of life are not acquired in the nursery, and those developing after this interval and increasingly likely to result from post partum acquisition in the nursery. In the case of infants born by caesarean section with sterile swabs at birth this is reasonably clear cut. The multiple and complex factors affecting the infant's acquisition of neonatal flora are important determinants of the risks of subsequent nosocomial infections. Factors in this include the source of the milk fed to the infant, personnel in direct contact with the newborn and the nursery environment including the flora of its infants, contaminated inanimate 8 objects and possibly visitors. Healthy term newborns become colonised within several days of birth with normal flora acquired from their mothers and the environment with lactobacillus other angerobes and E.coli in the gastro-intestinal tract. In contrast colonisation of the infant in the intensive care nursery is delayed, is quantitively reduced and frequently occurs with nosocomial pathogens, especially gram negative enteric bacilli... These infants are highly susceptible to acquisition of the intensive care flora which includes multiple potential pathogens. The gastro-intestinal tract of high risk newborns serves as the major reservoir for these nosocomial gram negative pathogens. A special care baby unit such as the one these babies were in is likely to be intermediate risk, compared to the two scenarios outlined above. The increased susceptibility of infection of low birth weight infants correlates with the immaturity of the premature infant immune system. These infants born at 36 weeks gestation and the 25th centile weight and length have some risk. In addition in relation to the situation above tube feeding by indwelling gastric or nasoduodenal tubes can predispose to bacteraemia as a result of colonisation of the upper gastro-intestinal tract with invasive bacteria. The risk with gavage or duodenal feedings if further enhanced if the milk is contaminated during preparation or collection. In summary the situation in this case seems inconclusive. However as the infants were delivered by caesarean section and not colonised or infected with E.sakazakii at birth as shown by negative cultures it seems highly likely that this organism came from some aspect of the environment, including other infants, personnel or inanimate objects or feeding materials.... The evidence, although inconclusive, tilts towards formula as a possible vehicle for this infection." From the foregoing I find the following relevant facts. 9 I A baby born prematurely and with a low birth weight does not have a properly developed immune system and requires special care and nursing in a controlled and sterile environment and that is what the Special Care Baby Unit at National Women's is designed to provide. II That a baby born by caesarean section is more sterile and germ-free at birth than one born conventionally. III Babies in the SCBU are monitored regularly for temperature and bodily fluids are taken and diagnosed at regular intervals for ascertaining any infection or disease. IV As part of the special requirements for premature babies they are fed by nasogastric tube and bottle with infant formula rather than normal bottle or breast feeding. V In the course of the routine of their treatment they come into contact with various inanimate objects as well as contact with hospital personnel. VI Because of the fact of sterility of their bodies at birth all bacteria acquired is nosocomial. In contrast with a normal birth child which acquires normal flora from its mother and the environment, a baby in intensive care is highly susceptible to the acquisition of nasocomial pathogens. VII The child suffered the infection of this rare form of meningitis during the time that she was in the Special Care Baby Unit, rather than it being acquired prior to or in the course of birth. 10 VIII The source of this particular bacteria was possibly the infant formula but could have come from another infant, hospital personnel, inanimate objects or feeding material. IX Other than the appellant's twin no other child in the SCBU contracted the bacteria. I find that it was an essential part of the treatment of the appellant that she be immediately placed in an incubator in the Special Care Baby Unit at the hospital. Such was required for her survival. Thus I find that her treatment included all that which the Special Care Baby Unit provided as part of the necessities for her care and development from her premature state into a normal healthy infant. I further find that as part of the treatment of her it was essential that she be contained in a sterile environment, such as that provided by the incubator into which she was placed. Furthermore, any action required to do with her, apart from her physically resting in that incubator, was done to her for the purposes of treatment, be it checking or monitoring temperature, taking tests or applying the nasogastric tube and bottle of formula for feeding. The child was required to be handled by hospital staff for the carrying out of these various aspects of treatment. The foregoing scenario is to be contrasted with what might be described as the normal delivery and post delivery situation where normal hospital environment conditions would prevail and the child would handled by and fed by its mother in an ordinary environment. In essence a premature low weight baby requires special treatment if it is to survive. Every aspect of its existence from birth requires special care and positive management if the desired end is to be achieved. 11 In those circumstances I find that at all stages of her short life to the point of her contracting meningitis she was in a state of treatment. Every aspect of her environment and attention was part of the necessary treatment for her survival. As I have already noted Professor Lennon was not able to say with certainty the exact source of the meningitis bacteria but I find in the context of causation in this case it is not necessary to identify the precise source providing the possibilities are all possibilities which can be said to be a consequence of treatment. Having found as I have that the appellant's treatment did include every aspect of her being at this time, the contracting of meningitis was an adverse consequence of that treatment. To put it another way, it was part of the treatment of the appellant that she be protected from bugs and bacteria because of her immature immune system, and that in the course of her being so protected the adverse consequence of her contracting this rare form of meningitis did occur. This was one of the very things which the treatment she was receiving was designed to prevent. All or any of the agencies identified by Professor Lennon as possibilities were connected to that over all concept of treatment that was necessary for her survival and growth and I find that there is the necessary causative nexus between the treatment and the adverse consequence. For the foregoing reasons therefore I find that the contracting of Enterobacter sakazakii meningitis by the appellant whilst in the Special Care Baby Unit at National Women's Hospital in or about the third day of her life did constitute personal injury by medical misadventure being medical mishap. The appellant is entitled to cover under the Act and the decision of the review officer and the Corporation is hereby revoked. 12 The appellant is entitled to costs which I fix at $800.00. DATED at WELLINGTON this 2 day of September 1998 AJ Beattie District Court Judge watt.doc