Snelgar v Accident Rehabilitation and Compensation Insurance,Corporation

DECISION NO. 385/99 IN THE DISTRICT COURT DCA 496/98 HELD AT AUCKLAND UNDER the Accident Rehabilitation and Compensation Insurance Act 1992 IN THE MATTER of an Appeal pursuant to s 91 of the Act BETWEEN RONALD WILLIAM SNELGAR Appellant AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act. Respondent Date of Hearing: 27 July 1999 Date of Judgment: 24 DECEMBER 1999 Counsel: The Appellant in Person Mr Hook, for Respondent RESERVED JUDGMENT OF JUDGE J H LOVELL-SMITH Solicitors: [I:WUDICIAL\LOVELLJ\DECISION\Snelgar v ARCIC.doc sb] This is an appeal in respect of the respondent's decision of 3 April 1998 declining the appellant's claim for medical misadventure in respect of informed consent to an Epididymectomy performed during Hydrocele surgery on 12 June 1996. The appellant suffered injuries to the groin area when gored by a goat on 15 January 1995 and was given cover for a hernia condition on 16 February 1996. The appellant underwent a scrotal ultra sound at North Shore hospital. A medical certificate signed by Dr Burgoyne at North Shore Hospital dated 4 April 1996 gives "[right] inguinal" as the diagnosis with an injury date recorded as "? Jan 95". The appellant consulted with a general practitioner, Dr J D Richmond, who referred him in April 1996 to Mr Williams, a General Surgeon and Colonoscopies Williams' recommendation in his report dated 17 April 1996 was that the appellant have his hernia repaired and at the same time he would carry out a Jaboulay procedure on the right hydrocele and if necessary will deal with the cysts at the same time. He referred to the ultra sound scan which had demonstrated some small epididymal cysts on both sides together with a small left and larger right hydrocele. The surgery initially scheduled for 8 May 1996 was postponed when the anaesthetist learnt the appellant was a heavy smoker to enable further investigations of his cardiovascular status. Although the Southern Cross Hospital Patient Admission Form was partially prepared, it was not signed by the appellant as the operation did not proceed that day. The operation was rescheduled for 12 June 1996. A consent form dated 4 June was signed by the appellant and his surgeon Mr Williams. In his report to the appellant's GP Mr Williams' wrote: "I operated on Ronald Snelgar at North Harbour Hospital on Wednesday morning. Initially I repaired his right inguinal hernia which was a large indirect defect containing small bowel The right scrotum was then opened revealing a small hydrocele which was drained and several epididymal cysts. I carried out an epididymectomy in view of the multiple cysts. Haemostasis was secured and the wound was closed with subcuticular vicryl ...' Histology from a specimen was reported on 13 June 1996 as follows: "Sections show epididymis with adjacent fibrofatty tissues and a cyst with a fibrous wall lined by a layer of low columnar epithelium." In his Claim for Cover and Treatment Expenses form dated 29 July 1999 the appellant described his injury as follows: "Gored by goat in first instance/had operation for hernia and hydrocele 12- 6-96. Surgeon removed Epididymis without my informed consent. I am making a claim for loss or impairment of bodily function." Dr Richmond completed the medical section of the claim form describing the injury as "claiming re epididymectomy right side during hydrocele." In response to the claim Mr Williams wrote to the respondent on 3 October 1997 as follows: 'Mr Snelgar was referred to me by his family practitioner Dr J Richmond on 17.4.96. My findings then were the presence of a reducible (R) inguinal hernia with bilateral hydrocoeles the right larger than the left. An ultrasound examination at North Shore Hospital where Mr Snelgar first presented also demonstrated bilateral epididymal cysts, their presence was masked clinically by the hydrocoeles. I recommended that Mr Snelgar have his hernia repaired, that his hydrocele be dealt with and at the same time his epididymal cysts would be assessed and if necessary be removed. Mr Snelgar was in agreement with this proposal which I explained carefully as the multiple pathologies are not easy to understand. They all cause swelling in the same area. On 12th June 1996 surgery was carried out at North Harbour Hospital, Glenfield. I repaired Mr Snelgar's right inguinal hernia, drained the right hydrocele, and in view of the multiple right epididymal cysts being present I carried out a right epididymectomy. I believe that Mr Snelgar was well informed prior to his surgery, his presenting problems were multiple, closely related (anatomically), and adequate explanation was necessary in order that he understand the problems presenting and how they might be dealt with. The decision to remove the epididymis was made only after exposing that structure and seeing that it harboured multiple cysts." The Medical Misadventure Advisory Committee first considered the appellant's claim on 14 November 1997. The committee's report stated: "In his very considerable correspondence to the Unit, Mr Snelgar ... states that there was not adequate explanation of the nature of the surgery. He further states that on the two consent forms that had been filled out he had made the notation "no explanation made" and he has put his initials beside it. He states that this should have been read or would have been read by the surgeon before any operations were carried out. In order to clarify the timing with respect to the annotation Mr Snelgar made on the consent form, the Committee would appreciate a copy of the original consent form which was for a repair of the right inguinal hernia. This one is dated [sic - undated] but would appear to have been signed around the 20 May 1996. The second consent form was signed on the 4th of June 1996 and this states that the operation was for a repair of the right inguinal hernia and hydrocele. The Committee also notes that Mr Snelgar states that Dr J Richmond has no record of the letters from Mr Williams to him dated the 17th of April and the 12th of June 1996." The Advisory Committee requested copies from Dr Richmond of any letters he had on file from Mr Williams and indicated that it would, once having received this further information, would be in a better position to establish whether or not there had been any negligent failure to obtain informed consent. 5 Or Richmond responded on 5 December 1997 enclosing three letters from Mr Williams dated 17 April 1996, 12 June 1996 and 21 June 1996. Mr Williams was asked for further comment by the respondent on 1 December 1997. He was asked for copies of the original consent forms. On 12 December 1997 Mr Williams enclosed the two consent forms, the first dated 8 May 1997 which was unsigned as his operation was cancelled and the second consent form dated 12.6.96 which was signed by the appellant when surgery proceeded as planned. The words "no explanation had been made" had not been written on the consent form dated 12.6.96. Mr Williams said that had that been done the operation would not have proceeded without adequate explanation by himself and approved by the appellant. Dr Williams also enclosed a "info pack" which had been provided by Mr Snelgar when he first saw him on 17 April. This info pack contained the ultrasound report, February 1996. Mr Williams was therefore able to confirm the presence of Mr Snelgar's hernia as well as the changes in the scrotum of hydrocele and epididymal cysts as at 17 April. He said he was therefore able to discuss at length their presence, their potential and that if appropriate he would treat them at the same time as his hernia repair. Mr Williams believed that Mr Snelgar understood this and that Mr Snelgar subsequently took this matter up with ACC to seek confirmation regarding any increased cost that might occur as a result. At no time reported Dr Williams, did Mr Snelgar express any concerns or opposition to this proposal. Dr Williams went on to state: "Your recent correspondence indicates that Mr Snelgar has spent some time trying to convince you that the ultrasound report was not made available to me until two months after my original consultation. In Mr Snelgar's writing the "Info Pack" is noted to me on Wednesday 17" April 1996. also within the "Info Pack" Dr Burgoyne, the doctor assessing Mr Snelgar at North Shore Hospital in February, indicated that the alleged cause of his hemia was due to heavy lifting and that being "gored by a goat" was not mentioned until Mr Snelgar filed an signed his claim form. With regard to my letters to Dr Richmond, those were dictated and typed on the dates of my original consultation and the day of Mr Snelgar's operation." The Medical Misadventure Advisory Committee reconsidered the matter on 13 February 1998 and formed the view that there was not a failure of informed consent on behalf of the general surgeon involved, Mr Brian Williams. The committee referred to the standard consent from Southern Cross Hospital with recorded: "I Ronald Snelgar agree that I have received a reasonable explanation of the intent, risks and likely outcomes of the treatment and operation of repair R inguinal hernia to the R side of my body at the Southern Cross Hospital and a explanation of alternative procedures which may be necessary in relation to my current treatment." The committee also made reference to the fact that beside the word "explanation" in both parts of the consent form, Mr Snelgar had printed the words "no explanation made" and his initials. The committee noted however that the original consent form contained no endorsement of these words or Mr Snelgar's signature. Following a second meeting of the Advisory Committee when no further material was received to challenge their findings, the confirmed the advice of the respondent as follows: "The Committee was of the view that there had not been a negligent failure to obtain informed consent by Mr Williams with regard to R epididymectomy during hydrocele surgery ... it is the consensus opinion of the Committee that Mr Snelgar does not have cover under s 8(2)(c) of the Act, as medical misadventure resulting from medical error has not occurred." The respondent advised the appellant by letter dated 3 April 1999 the appellant's claim for cover was declined. The appellant applied for a review of the Corporation's decision. In the decision dated 28 October 1998 the Review Officer upheld the respondent's decision holding that Mr Brian Williams did obtain the appellant's informed consent to the epididymectomy. The Review Officer found Mr Williams' letters "wholly consistent" and at page 5 of the decision: "Mr Williams for his part was confronted with a complexity of symptoms and I accept that he advised Mr Snelgar of this and what he was likely to do when surgery took place and that Mr Snelgar was happy for it to proceed on that basis." The Review Officer also made findings of credibility in regard to the appellant. He accepted that Mr Williams had in fact received the February 1996 ultrasound scan prior to the June 1996 operation. In his decision the Review Officer stated: "I suggested to Mr Snelgar at the hearing that I did not think he would have let Mr Williams go ahead with the operation when Mr Snelgar knew there was a scan if he thought Mr Williams did not have it. He said he had since looked it up and Mr Williams did not need it, for a hernia and hydrocele operation. I did not find that answer convincing in either its content or delivery and that that [sic] has led me to doubt the veracity of the rest of his oral evidence when set against what Mr Williams has written." Section 8 of the Accident Rehabilitation Compensation & Insurance Act 1992 provides cover for personal injury and includes medical misadventure as defined in s 5 of the Act. Section 5 ss 6 concerns failure to obtain informed consent, provides as follows: "5. Definition of 'medical misadventure' ... (6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian, or welfare guardian, as the case may be, is medical misadventure only if the registered health professional acted negligently in failure to obtain informed consent." The onus is on the appellant to establish that he has suffered a medical misadventure in terms of s 5 ss 6. The appellant must show first that Mr Williams failed to obtain the appellant's informed consent to the epididymectomy and secondly that in failing to obtain that informed consent Mr Williams acted negligently in order to obtain cover for medical misadventure for a failure to obtain informed consent. It is the appellant's contention that he did not give his consent to the epididymectomy which Mr Williams performed on 12 June 1996. The appellant has said that the only consent he gave was for a repair of the right inguinal hernia and right hydrocele. At no time did Mr Williams have his agreement for any scrotal surgery. He contended that Mr Williams was not truthful in claiming that on 17 April 1996 that he had findings regarding epididymal cysts and that there was a requirement to carry out a right hydrocele procedure and that he was in agreement with it. TheC11 request approval of private hospital treatment referred to repair (R) "inguinal hernia" dated 18 April 1996. Mr Williams' estimate of 26 April for costs ending surgery specified right inguinal hernia herniorraphy only. On the 8t of May 1996 consent referred to repair right inguinal hernia only. No mention of scrotal surgery was in his final account dated 18 June 1996 to ACC. The appellant does not accept Mr Williams' explanation relating to the letter of 17 April 1996. He relied on the fact that Dr Richmond did not receive or read Mr Williams' letter of 17 April 1996 until 18 months after its date. The appellant further contended that at no time did he give his ultrasound test report to Mr Williams and his info pack did not contain a copy. Counsel for the respondent submitted there was no failure by Mr Williams to obtain the appellant's informed consent of the epididymectomy. Mr Williams in his letter to Dr Richmond of 17 April 1996 states that he recommended that the appellant have his hernia CO repaired and at the same time he would perform a Jaboulay procedure on the right hydrocele and if necessary deal with the cysts at the same time. "Subsequently, in letters to the respondent dated 3 October 1997 and 12 December 1997, Mr Williams states that prior to the surgery he discussed with the appellant the presence of the epididymal cysts and he recommended to the appellant that if necessary the epididymis should be removed. He stated that the appellant was in agreement with that proposal and that the appellant was well informed prior to surgery. In his December 1997 letter Mr Williams went on to say that the appellant did understand that the problem with the epididymal cysts would be dealt with during the hydrocele surgery as the appellant subsequently took that point up with the respondent by inquiring about any increased costs that might occur. The original of the Southern Cross Hospital consent form dated 4 June 1996 does not include any endorsement by appellant of the words no explanation given or no explanation made. Those words only appear on the copy of the consent which was placed before the committee at its first meeting. Mr Williams confirmed in a letter dated 1 December 1997 the original consent form did not include the appellant's endorsement that no explanation had been given and he remarked that if consent had been so endorsed then neither he nor the nursing would have allowed the operation to proceed. The Advisory Committee concluded that in signing the consent form the appellant acknowledged that he had received an adequate explanation for his surgery. The notes of the Advisory Committee's first meeting on 14 November 1997 made it clear that the appellant maintained that he had endorsed both consent forms with the words "no explanation made" or "no explanation given". The appellant went on to say to the 10 committee that the endorsement should have been read by the surgeon before any operations were carried out. The original consent form does not include the appellant's endorsement and agree with the respondent's submission that the only inference to be drawn is that the appellant retrospectively made the endorsement "no explanation given" on the 4 June 1996 form and then sought to assert the endorsement was made on the original consent form. There is no basis in my view to disturb the credibility findings of the Review Officer. I am satisfied on the balance of probabilities that: (i) Prior to the surgery 12 June 1996 Mr Williams adequately explained to the appellant the nature of the appellant's epididymal cysts and if necessary an epididymectomy would be performed during the hernia repair by hydrocele surgery; and (ii) The appellant signed the original consent form of 4 June 1996 without making any endorsement about a lack of explanation being given; and (ili) The appellant in signing the consent form of 4 June 1996 gave his informed consent to the epididymectomy as a contemplated procedure. I do not accept the appellant's contention that Mr Williams' letters to Dr Richmond of 17 April 1996 and 12 June 1996 were back dated by Mr Williams and sent to Dr Richmond after the dates recorded on the correspondence. The Review Officer stated at page 5 of his decision: 'Dr Richmond had not seen Mr Williams' letters. He does not know why. but that does not mean or prove that Mr Williams did not write them, or that Dr Richmond was entering into a cover up by Mr Williams. Mr 11 Snelgar was a new patient. Perhaps the letters went astray in his surgery." There is no evidence of a "cover up" by Mr Williams as asserted by the appellant. The respondent's decision of 3 April 1998 is upheld and the appeal dismissed. (JH Lovell-Smith) District Court Judge