Tooley v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 216/2003 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN ROSE TOOLEY of Hamilton Appellant (Appeal No. AI 636/02) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at HUNTLY on 12 August 2003 APPEARANCES/COUNSEL A. De Jong for appellant J. Loveday for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The issue [1] The issue is whether the appellant is entitled to cover under the Accident Insurance Act 1998 for personal injury by medical misadventure, being medical error. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/216- 2003.doc AE Background of facts [2] On 24 September 2001 the appellant lodged a claim for cover alleging she had suffered an injury that was caused by treatment that was given by, or at the direction of a registered health professional. The claim was in relation to a spinal cord biopsy that was undertaken by Mr Mee, neurosurgeon on 21 June 2000. Prior to issuing a decision the respondent referred the matter to Mr Graeme Macdonald, neurological and spinal surgeon for comment. He reported in writing on 5 April 2002. [3] The applicant attended the review hearing in person with her representative Mrs de Jonge. It was contended that the appellant had suffered a physical injury in the form of ongoing numbness on the left side of her body as a direct result of a spinal cord biopsy that was undertaken by Mr Mee on 21 June 2000. [4] The submission was that there was a lack of informed consent in that Mr Mee did not explain the extent of the risks of the biopsy procedure to the appellant. The appellant alleged that the first time that she was made aware of some of the risks, including paralysis, was when she was on the operating table. It was only then that she became aware that her symptoms could be made worse by the biopsy. The appellant alleges that since the biopsy her condition has worsened. She has suffered a physical injury to the left side of her body in the form of ongoing numbness as a direct result of the spinal cord biopsy undertaken on 21 June 2000. The adjournment of the review hearing part heard [5] A problem that has occurred with the hearing of this decision is the fragmented nature of the review hearing, I hasten to add through no fault of the reviewer. After the review hearing on 16 October 2002 the hearing was adjourned part heard and then concluded on the papers on 13 November 2002. I set out the relevant parts of the review decision dealing with this aspect of the case: “Agreement to adjourn part heard Ms Faasalele indicated at the review hearing that ACC had not considered the further information provided by the applicant prior to the hearing. Unfortunately, I omitted to find out at the review hearing whether the parties wanted to continue on that basis or whether they required further time because of the lack of comment by 216-2003 2 ACC in respect of the further information. In light of my omission I contacted the parties after the review hearing on 18 October 2002 to see whether they would like further time to consider the matter. Ms Faasalele advised me that she would like to obtain further comment if Mrs de Jonge agreed. I then contacted Mrs de Jonge about the matter via telephone and she agreed to adjourn the application part heard. I received ACC's further comments in respect of this matter on 4 November 2002. I received Mrs de Jonge and the applicant's final comments on 13 November 2002. Accordingly, I concluded the hearing of the application on the papers on this date. Further Comment As noted above, the application was adjourned part heard to allow ACC time to consider the further information that was provided by the applicant prior to the review hearing and for Mrs de Jonge and the applicant to provide final comment. From Ms Fasalele/ACC I received Ms Fasalele's further written comments (dated 1 November 2002) on 4 November 2002. Ms Fasalele provided the applicant's further information to Mr MacDonald, Neurological and Spinal Surgeon, for comment and advice. She attached Mr MacDonald's report dated 30 October 2002 to her response. In respect of the further information that was provided by the applicant, Mr MacDonald stated, "I do not believe that these letters have provided any further useful information or changed the opinion that I gave in my letter addressed to Elaine Riley, dated April 5 2002." From the applicant I received the applicant/Mrs de Jonge's final comments dated 12 November 2002 on 13 November 2002. I concluded the hearing of the review application on the papers on this date. Mrs de Jonge submitted that the risks of the biopsy procedure were not fully explained to the applicant. The applicant stated, "If I had known that there was a risk of paralysis temporary or permanently before I went to theatre I would never have gone ahead with it." The applicant noted, "My claim for medical misadventure is not with the tumour but the procedure that was carried out leaving me paralysed down the left side, which I pointed out to Mr Mee on 23/6/2000 before I left the hospital and of which I still suffer today two years and five months later." The applicant noted that after having radiotherapy her spinal cord tumour "stopped growing and shrunk". She referred to Dr Charles Kodikara, Radiation Oncologist's letter dated 13 August 2001 and Dr John Jane Jr, Neurosurgical Registrar's letter dated 4 September 2001 as supporting her submission that it was the biopsy and not the tumour that caused her condition of paralysis. The applicant and Mrs de Jonge pointed out that ACC had their submissions one and a half weeks prior to the review hearing and that they were surprised that a further report was requested after the review was held as no adjournment or extra time was requested at the review by ACC or themselves. They queried whether this is normal practise. 216-2003 3 I am unable to determine why Mrs de Jonge and the applicant are surprised about this matter in light of the fact that I specifically telephoned Mrs de Jonge on 18 October 2002 to discuss the matter. Nevertheless, I note that this is not normal practise but is something that I considered necessary at the time in terms of fairness.” [6] I note that since the hearing of this appeal the appellant has filed the medical opinion of Dr J. M. Grant, a specialist physician from New South Wales. In a short report dated 16 April 2003, he attributes the appellant’s present symptoms as a direct result of the biopsy procedure. This report is directly in conflict with the report of Mr MacDonald. [7] It is noted that counsel for the respondent attended the review hearing by means of a teleconference call. The appellant gave evidence at the review hearing. It is also noted, the medical report of Mr MacDonald dated 30 October 2002 was considered by the review officer, when he repeated his earlier opinion. [8] In my view, as a matter of procedural fairness, the further medical report of Mr MacDonald should have been made available and a reasonable time afforded to the appellant to have obtained further medical evidence or comment upon it. It is significant that at the appeal hearing a contrary medical opinion has been obtained from a specialist. In all the circumstances it is desirable that the parties should tender all their medical evidence before the review officer and attend the review hearing to make their submissions. Further, I was advised that the respondent was not representing the doctor concerned and it desirable that he should be made aware of his rights to attend the review hearing, as any adverse decision could impact him. [9] This part of the review hearing impacted upon the causal connection that had to be proved and whether the appellant had suffered physical injury as a result of the biopsy procedure, rather than the original medical condition. Informed consent [10] The second issue that had to be dealt with was that of informed consent. The issue of informed consent was dealt with by the reviewer as follows: “The applicant claims that Mr Mee failed to adequately or appropriately gain her informed consent for the surgical biopsy procedure of the spinal cord that was undertaken on 21 June 2000 on the ground that she was not told of the possible risk of paralysis until after she had signed the consent form. She contended that she first found out about this matter from Dr Sheenan, Neurosurgical Registrar, when she was in theatre on the table having the needle inserted in her vein. 216-2003 4 I note that I have no reason to doubt the applicant's view on this matter. Nevertheless, in the absence of any substantive or corroborating evidence to support her view, I am unable to find on the balance of probabilities that the applicant was not warned about the risk of paralysis prior to the procedure being undertaken or prior to her signing the consent form. Mr Mee insists that she was warned of the risks of the biopsy by he and his team prior to the surgery and prior to her signing the consent form. In the absence of any corroborating evidence from Dr Sheehan and in light of the medical evidence traversed above in this decision, on the balance of probabilities I regret that the applicant has failed to discharge the onus upon her. For the foregoing, reasons the review dismisses the application. Regretfully, this means that the applicant is unsuccessful.” [11] The issue confronting the reviewer was the evidence of the appellant, which he found she had no reason to doubt, against the evidence of practice and the letters of Mr Mee and the operation note dated 21 June 2000 of Dr Sheehan. Essentially this issue was one of credibility. If the appellant was believed that would suffice and there is no need that her evidence was corroborated. Again, I would have thought that in assessing credibility it would be necessary for the reviewer to see and hear the conflicting evidence of the medical team. Cross-examination would be available to the parties to test the conflicting evidence given. I hardly see how this could be achieved by a teleconference. Conclusion [12] I have deliberately not ventured a view on the merits of this case, as in my opinion, the case should be remitted back to enable a full review hearing on these issues. At this review hearing a decision can be made concerning the primary facts in issue. Further at this review hearing it should be open to the parties, if necessary, to produce further medical reports. The review decision should be arrived at after a consideration of all the medical evidence and hearing and seeing the witnesses on the credibility issue of informed consent. The doctors concerned should be advised of their right to be represented and to attend the hearing. 216-2003 5 [13] I, accordingly, grant the appeal and remit the case back for a further review hearing. I grant the appellant $500 costs, plus disbursements. DATED at WELLINGTON this 1st day of September 2003 (J. Cadenhead) District Court Judge 216-2003 6