Lewis v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 27 4 199 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 RONALD LEWIS DCA 72/99 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of June 1999 APPEARANCES: Mrs A de Jonge advocate for appellant Mr B A Corkill counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to decline cover to the appellant for personal injury by medical misadventure, being medical error. 2 A hearing of this appeal took place on 29 June 1999 but it must be acknowledged that at that hearing the appellant's advocate did not orally present her full submissions, although these had been presented to the Court in writing and were on the record. After hearing some argument from the parties' advocates I determined to adjourn this appeal sine die to give the appellant the opportunity of pursuing a claim for cover for personal injury by accident arising out of the circumstances of the appellant being shot by the police on 19 July 1995. At that time I observed that if the appellant did lodge such a claim and it was accepted, then the continuance of this appeal would be rendered nugatory. The Court has not been made aware of what progress, if any, has been made in any application for cover by the appellant as envisaged, but the Court has now been requested by the appellant's advocate, on instructions from the appellant, to proceed to deal with this appeal on the papers as it has been presented by the written submissions of both parties. The background to this appeal is best encapsulated in the report from Dr James Walshe, Consultant Psychiatrist, who reported to the Medical Practitioners Disciplinary Committee (MPDC) in relation to an inquiry which that committee was conducting as to the professional conduct of Dr Robert Shannon, the appellant's GP, in relation to the prescribing by Dr Shannon of the drug Benzodiazepine for the appellant. Mr Ronald Lewis was born on 21 June 1938, an immigrant from Liverpool, became a patient of Dr R L Shannon, a GP at Petone in or about 1965. Over a period of 30 years the full range of his primary care and medical needs, indeed the needs of his family, were met by Dr Shannon or an occasional locum. A persistent problem, Mr Lewis' pathologic anxiety, which had begun as a panic attack in his late 20's, was repeatedly evaluated and treated over these years, primarily with the Benzodiazep Mr Lewis worked mainly as a store man from 1958 to 1983. He married in 1973: 3 The couple produced two children. Considerable domestic unhappiness gradually developed, including estrangement of both parents from the grown children. In 1983 Mr Lewis had been unable to continue to work because of panic attacks and he went on to an invalid's benefit. He complained of on a range of physical problems, developed hypertension and a peptic ulcer and evinced considerable anguish over the disturbed state of his marriage. This eventually, in July 1995, erupted into open conflict with his wife and a gun-toting confrontation with the police who felt sufficiently threatened by his armed demeanour to disable him by gun fire. The severe wounds he suffered in this encounter led to a double amputation of both legs below the knee and some repair work of his upper body, multiple injuries. In April 1996 the appellant lodged a claim for cover. The claim, as it was presented, sought cover for injuries to the appellant's legs, arms and body as a consequence of a police shooting but it seems that, from its inception, this claim was treated by the respondent as a claim for cover by medical misadventure being alleged Benzodiazepine addiction from prescription with subsequent abherrent behaviour culminating in being shot by the police. It was in those circumstances that the claim was referred to the Medical Misadventure Advisory Committee (MMAC). The MMAC met in all on five occasions between November 1996 and May 1998. Those meetings were scheduled at various stages of the evidence gathering procedure and there was also a delay in making the final decision because of the concurrent disciplinary proceedings being conducted by the MPDC which did not come to its decision until December 1997. The substance of the charge against Dr Shannon before the MPDC was a charge of professional misconduct, the ingredients being: i) That the amount of Benzodiazepines prescribed was excessive if) That Dr Shannon did not actively seek to reduce the quantity prescribed ifi) That Dr Shannon failed to refer Mr Lewis to a psychiatrist for assistance. A That committee heard evidence from experts as well as from the appellant and his wife and it had a complete record of the prescription by Dr Shannon to Mr Lewis over the last 20 or so years that records remained. In its final analysis the MPDC found that in the 18 months prior to the shooting, the amount of diazepam prescribed was much less than hitherto and that it found that the amounts so prescribed were not excessive. The committee found that on several occasions Dr Shannon had attempted to persuade Mr Lewis to reduce the number of tablets he was taking and that he had also, on occasions, attempted to make a referral to a psychiatrist for a further opinion but that Mr Lewis had always refused. In its final deliberation the MPDC stated: "The committee acknowledges that Dr Shannon was placed in a very difficult position by Mr Lewis and accepted the statement of Dr Shannon that ethically he felt he could not walk away from his patient or his patient's problems. Dr Shannon realised that his level of prescribing Diazepams was not ideal, but he felt that it was the lessor of two evils to continue to prescribe medication to Mr Lewis in an effort to keep him functioning at a fairly normal level in the community." On the basis of that finding the MPDC found that the particulars of the charge had not been established and it was dismissed. Following the delivery of that decision the MMAC met for the fifth time, it now having before it all the information that it had gathered as well as all the information that comprised the record of the disciplinary hearing of the MPDC. In its report the MMAC noted that the matter was essentially a matter involving credibility of Dr Shannon on the one hand and Mr Lewis and his wife on the other. It noted that the MPDC had had the benefit of hearing all witnesses and that it had made an assessment 5 of credibility, preferring the evidence of Dr Shannon to that of Mr Lewis and for the reasons that the MPDC had given for so preferring. In its decision the MMAC stated: "The MPDC having observed the presentation of the evidence by the witnesses and considered the evidence as given was of the opinion that it accepted the account of events as presented by Dr Shannon as being the more credible. This committee having considered all the evidence before it and in the light of Dr Walshe's report and the further material now available to it has independently come to the same view. It is of the view therefore that Dr Shannon, in the prescribing of Benzodiazepine to Mr Lewis, finds there is insufficient evidence to establish that Dr Shannon failed to exercise a standard of care and skill reasonably to be expected in the circumstances. The recommendation is that the claim should be declined." Of considerable relevance also to the whole issue which is the subject of this appeal is that as a consequence of the appellant's gun shot injuries and his period of time in the hospital and convalescence, he was considered as being free from any Benzodiazepine addiction and after being examined by a consultant psychiatrist at Huntly Hospital he was found to not have any psychiatric disorder. This is in contrast to the assessment of Dr Mary Hartshorn, Consultant Psychiatrist, with the Wellington Regional Forensic Psychiatry Service who provided an assessment of his condition at the time of the confrontation with the police and which she reported: "From a diagnostic point of view, it is my professional opinion that Ronald Lewis experienced a substance induced psychotic disorder at the time of the events of the shooting which resulted in extremes of mood, belligerence, 6 paranoia (and a suggestion of delusional thinking concerning his wife) and impaired judgment. How much of this is attributable to the abuse of Diazepam (and possibly the pain killer preparation for headaches) as opposed to alcohol abuse is difficult to say. The relevant information is that there appears to have been a gradually escalating pattern of prescription, drug and alcohol abuse for at least several months preceding the events of the shooting and possibly for a number of years before that as concerns the prescription and medications. This diagnosis is buttressed by the absence of any previous clearly psychotic or violent acting out on Mr Lewis' part in prior years and the clearing up of his mental state in its continued clarity since the substances have been out of his system." THE CLAIM The appellant's claim for cover, as framed by his advocate Mrs de Jonge, is one of a claim for personal injury by medical misadventure, being medical error. The medical error being the negligence of Dr Shannon in prescribing and continuing to prescribe Benzodiazepine without proper informed consent and the prolonged prescription of that drug causing addiction and dependency and which on 19 July 1995 caused the appellant to embark on a course of conduct which resulted in him being shot by the police and which gunshots have caused injury to the appellant. As I determine it, the appellant is seeking cover for the personal injuries arising from the gunshot wounds rather than personal injury by way of drug dependency through excessive prescription of Diazepam. That is what the appellant is asserting and this was confirmed by Mrs de Jonge at the hearing. On the face of it there can be no doubt that the appellant's injuries from his gunshot wounds would entitle him to cover under section 8(2)(a) of the Act, that is personal injury by accident. It was for this reason that I adjourned the hearing of this appeal to enable the appellant to lodge a claim for cover under section 8(2)(a) but, for whatever 7 reason, the appellant, through his advocate, seeks to have the question of cover under section 8(2)(c) - personal injury by medical misadventure - determined. The review hearing on the issue of cover did not come to grips with the question of personal injury but rather concentrated on whether or not a situation of medical misadventure had been established, that is, had the treating doctor committed medical error, being a failure to observe a standard of care and skill reasonably to be expected in the circumstances. The matter of medical error also seems to have been paramount in the minds of the MMAC and its deliberations were solely addressing that question and on my reading of their various deliberations, they have not addressed the question of personal injury, or more particularly, the personal injury that the appellant was asserting and whether cover for same could arise from the claim that was being made. It is a fact that at the second meeting of the MMAC there is stated in its deliberations the following: 'The committee has received the additional information requested at the previous meeting and there has been further discussion on the issue of personal injury. The committee accepts that Mr Lewis' severely disordered state of mind on the 19th of July 1995 was at least in part due to Diazepam and which therefore materially contributed to a physical disorder of the brain which was present at that time. The committee therefore accepts that there has been personal injury in terms of the criteria laid down in the Act." However, the committee at the beginning of its deliberation noted that the claim was for Diazepam addiction causing uncontrollable behaviour by the claimant and involving a firearm which resulted in the claimant being shot and suffering injuries as a result of being shot. It is also noted that it was the committee's recommendation at the end of that second meeting that the appellant's claim be accepted. The committee did not indicate whether the appellant's claim was being accepted for personal injury being a physical disorder to the brain or personal injury which resulted from the shooting and which included both legs being amputated and a useless arm. It is following that meeting that further submissions and evidence were submitted on behalf of Dr Shannon, particularly that from consulting psychiatrist, Dr Walshe, and new evidence which was discovered about the regime of prescription by Dr Shannon and various matters which were outside his control and which affected the appellant's behaviour, principally his alcohol abuse, and which all caused the MMAC to reconsider. The sum of the foregoing is that the question of personal injury has not really been addressed but I find that it needs to be so for the purposes of this appeal. The question must be whether the appellant, if he can establish medical error, is entitled to cover for the gunshot injuries or simply the physical effects of the Diazepam addiction. It is accepted that the latter ceased to be personal injury more or less from the day of the shooting and therefore would not give this appellant any ongoing entitlements under the Act. It is trite to say that the actions of Dr Shannon did not result directly in the bodily injuries suffered by the appellant as a consequence of being shot several times by the police. It is equally clear that for a claimant to be entitled to cover for particular personal injuries there must be a causal nexus between those injuries and the act complained of. In most cases that causal connection is established by the fact of an accident, but in the present case it must be the act of medical error. It is this basic tenet which I find gives rise to difficulties with this appellant's claim. Given the factual circumstances whereby the appellant came to be shot by the police, I find that the incident which brought that about was clearly a novus actus interveniens. In other words, the injury suffered by the appellant was as a result of the intervention of another person (the police) and it was that intervention which caused the injury. That intervening act broke the chain of causation. It is my finding that there was not such a direct relationship between any alleged act of negligence by Dr Shannon and the injuries suffered so that one could be treated as flowing directly from the other. Even if a test of foreseeability were to be adopted to determine whether there was a novus actus, the facts of this case would not give rise to a finding of foreseeability. The appellant had no history at all of psychotic behaviour, Dr Shannon was not aware that the appellant had become alcohol dependent and of course he could not foresee the particular domestic situation which seems to have precipitated the appellant's action in taking a firearm and creating the armed offenders stand-off. For these reasons therefore, I find that the appellant cannot have cover for the injuries he suffered as a consequence of the shooting by virtue of medical misadventure. I have previously stated that, to all intents and purposes, he has a perfectly legitimate claim for personal injury by accident. The provisions of section 84 of the Act, which can deny an entitlement where a criminal act is involved in certain circumstances, do not apply in this case. The finding that I have made is sufficient to determine this appeal but that in the event that finding be wrong I propose to consider the question of whether or not there was medical error. This Court has the benefit of the findings of both the MPDC and the MMAC on this question of medical negligence in the circumstances of the treating of the appellant by Dr Shannon. Each of those bodies heard or received considerable evidence both expert and otherwise and both came to the conclusion that there was no negligence in the treatment of the appellant by Dr Shannon in his continued prescribing of Diazepam in the circumstances that he did so. 10 The appellant has not sought to adduce any further evidence on the question of medical error from that which was before the MPDC and the MMAC. The only additional evidence adduced by the appellant were various medical articles setting out the problems that can be associated with long term prescription of Benzodiazepines. The nature of that evidence is not in dispute and was fully canvassed before both Tribunals. However, each Tribunal looked at the matter from the perspective of what was the standard of conduct to be expected of Dr Shannon in relation to his patient, the appellant, and it was the finding of those bodies that no fault could be attributed to Dr Shannon in the manner of his treatment of the appellant. In cases of medical misadventure this Court is entirely reliant on the evidence of experts to be informed of what is acceptable medical practice in any particular situation and whilst the finding of negligence or otherwise is a matter of law for the Court to determine, the facts upon which that finding is made must in large measure be reliant on the medical opinion of what is or is not an acceptable standard of conduct in any given case. As was stated by the High Court of Australia in Rogers v Whittaker (1992) 175 CLR at page 488 et seq: "The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. ... Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive role 11 to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices." This particular reasoning was adopted by Justice Elias (as she then was) in B v Medical Counsel (HC 11/96) wherein Her Honour stated: "This statement of opinion, with which I respectfully agree and which I adopt, seems to me to apply equally in the case where professional conduct is in issue for disciplinary purposes. In the case of diagnosis or treatment, conduct which falls short of the mark will be assessed substantially by reference to usual practice of comparable practitioners." In the present case the Court is entitled to rely on the assessment of the specialist bodies, particularly as here where the matter complained of is the form of treatment that Dr Shannon practised. As earlier noted, this Court has received no evidence which could cast doubt on the findings of either of the two Tribunals who have previously considered the matter and this Court, sitting in its appellate jurisdiction, must therefore hold that there is nothing which would warrant it disturbing the findings of those Tribunals. In the context of this appeal the appellant has not discharged the onus which is upon him to establish on the balance of probabilities that the decision so made, namely that there was no medical error, was wrong. For these reasons therefore, the decision of the respondent to decline cover to the appellant for his gunshot injuries as a consequence of medical misadventure was correct although the reasoning for same may be different from that which this Court has held to be the correct reasoning for so declining. 12 This appeal is therefore dismissed. DATED at WELLINGTON this 30 day of September 1999 come M J Beattie District Court Judge 72.99Lewis.doc(gm)