BICZO v CAPITAL AND COAST DISTRICT HEALTH BOARD [2015] NZHC 3195

BICZO v CAPITAL AND COAST DISTRICT HEALTH BOARD [2015] NZHC 3195 [15 December 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2014-485-11472[2015] NZHC 3195BETWEENROZALIA BICZOPlaintiffAND CAPITAL AND COAST DISTRICTHEALTH BOARDDefendantHearing: 22 July 2015, further submissions received 29 September,5 October and 7 October 2015Counsel: Appellant in personD R La Hood and K L Scott-Dowell for RespondentJudgment: 15 December 2015JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is11 am on the 15th day of December 2015[1] Ms Biczo has filed proceedings against the Capital and Coast District Health Board (the CCDHB) relating to the death of her 30 year old daughter, Andrea Tabernacle, in late 2009. The CCDHB have applied to strike out her claim.[2] I delayed completion of this judgment pending the release of the Coroner'sreport into Ms Tabernacle's death (as to which see further [32] to [40] below). I had hoped that the report might either yield a level of satisfaction to Ms Biczo that would obviate the perceived need for these proceedings or offer the Court a way forward in terms of some possible remediation of her claim. Unfortunately, however, it has done neither of these things.1Background[3] The following factual matters are not in dispute.[4] In 2009 Ms Tabernacle was diagnosed with T-cell lymphocytic lymphoma. Following her initial diagnosis she was flown to Palmerston North Hospital fromHawke's Bay. At the hospital she tested negative for Methicillin-Resistant Staphylococcus Aureus colonisation (MRSA). MRSA is caused by a strain of bacteria that is resistant to the antibiotics commonly used to treat staphylococcal infections.[5] Ms Tabernacle received four cycles of chemotherapy treatment at Palmerston North Hospital. Following that, there was a partial remission of her lymphoma. As a result, in October 2009, she was deemed to be suitable for a stem cell transplant and on 31 October 2009 was admitted to Wellington Regional Hospital. She was not at that point re-screened for MRSA colonisation.[6] It is accepted by the CCDHB that screening should have occurred because Ms Tabernacle met the criteria set out in the relevant screening policy and to minimise the risk of spreading this organism to other patients.[7] At this point, Ms Tabernacle had in place a central venous catheter known as a Hickman line, which is used principally for administration of chemotherapy and1 No criticism of the report is meant by that expression of regret.other medications, as well as for the withdrawal of blood for analysis. A Hickman line can be left in place for extended periods of time. Ms Tabernacle's care followed the standard bone marrow transplant care pathway.[8] Between 31 October 2009 and 11 November 2009, Ms Tabernacle was prescribed dexamethasone for treatment-resistant nausea. One risk of steroids such as dexamethasone is increased blood glucose levels. Her blood glucose levels were therefore monitored regularly by way of samples taken from the Hickman line or by finger-prick testing.[9] On 5 November 2009, Ms Tabernacle had a bone marrow stem cell transplant following total body irradiation and high-dose chemotherapy. This was completed without incident. By way of this procedure she received stem cells (cells from which all blood cells develop) from a genetically similar, but not identical, donor.[10] On 7 November 2009, Ms Tabernacle became neutropenic, which is an expected result of such a transplant. This meant that she had an abnormally low level of neutrophils, a type of white blood cell that helps the body to fight infection. Because she was then at an increased risk of developing an infection, she was placed into protective isolation in accordance with standard practice.[11] The following day, an attempt was made to put a "peripherally inserted central catheter" (PICC line) into Ms Tabernacle's right arm under aseptic conditionswith ultrasound guidance. This had to be abandoned by the anaesthetic registrar because no flow was obtained through the line. A cannula, or thin tube, was inserted into the left arm vein. However, this line was also removed because it had wrapped itself around the Hickman line which was on the same side.[12] On 9 November 2009, an anaesthetist successfully inserted a left upper arm midline intravenous catheter, again using sterile technique and ultrasound guidance.[13] On 10 November 2009, Ms Tabernacle was prescribed Imipenem in response to the development of a fever; complaints of mild headache; a sore throat, nose stomach and chest; and soreness at the midline catheter site. Imipenem is a broadspectrum intravenous antibiotic. This was in accordance with the neutropenic protocol at the Wellington Regional Hospital.[14] Overnight between 11 and 12 November 2009, Ms Tabernacle complained of a sore left middle finger where a finger-prick blood test had previously been taken. This finger was noted for the first time to be red and swollen by the nurse on duty. Blood cultures were taken. Over the next few days, considerable discussion took place between senior medical staff, including the infectious disease service, as to her appropriate treatment and management.[15] On 12 November 2009, Ms Tabernacle was noted to have a fever of around 38°C, but her other observations were stable. It was noted that no organism had grown on cultures and it was considered that her symptoms were in keeping with that stage of the bone marrow transplant. Intravenous antibiotics were continued.[16] At about 4 am on 13 November 2009, a house surgeon documented that clinically Ms Tabernacle had fluid overload and an infected middle finger from blood glucose testing. During the ward round at approximately 10 am that morning, it was noted that Ms Tabernacle's left middle finger was red and painful, and that themidline catheter site was also swollen and red. Vancomycin (a broad spectrum intravenous antibiotic, with good results against MRSA infections) was added to her antibiotics regime. The first dose was administered at 1.30 pm that day. It was ordered that the finger be monitored and reviewed, and further blood cultures were ordered (no positive blood cultures had been returned at this time). The dayshift nurse recorded that the finger was regularly monitored and that it had a black swollen pad and red inflammation across the back of the finger and cuticle.[17] On 14 November 2009, the registrar documented that the left finger infection was probably caused by a blood sugar test, and was a probable cause of Ms Tabernacle's sepsis. Ms Tabernacle's condition was discussed with the on-call consultant, and it was considered that she would not be a candidate for surgical intervention at that time because of her neutropenia and thrombocytopenia (a condition where there is a decreased number of platelets, increasing the risk of bleeding). Adjustments were made to the dosages of Imipenem and Vancomycin.[18] On 15 November 2009, Ms Tabernacle developed increasing respiratory distress, and was transferred to the Intensive Care Unit (ICU). She was considered to have neutropenic sepsis possibly due to her left-hand infection. Sepsis occurs when inflammatory responses are triggered throughout the body following the release of chemicals to fight an infection. Possible causes for Ms Tabernacle'srespiratory distress included fluid overload, adult respiratory distress syndrome, a fungal or other atypical pneumonia, and pulmonary haemorrhage. She was intubated and ventilated, and her antibiotics extended to include antiviral and antifungal agents. She had also developed mucositis and nose bleeds. Mucositis is the inflammation of the mucous membranes lining the digestive tract, and an expected consequence of high-dose chemotherapy or radiotherapy.[19] On 16 November 2009, an orthopaedic opinion was sought in relation to the left middle finger, as the source of Ms Tabernacle's infection. In conjunction withopinions from haematology, infectious diseases and intensive care, amputation and surgical drainage were considered, but the consensus was that the associated risks outweighed the possible benefits. An initial observational approach was recommended at the family meeting held in the ICU. Ms Tabernacle remained ventilated. Cultures were taken in the ICU on 16, 17 and 18 November 2009 which showed that Ms Tabernacle had an MRSA infection in her middle finger, along with a fungal growth from blood cultures taken from her Hickman line. The Hickman line was removed and broad spectrum anti-microbial therapy was continued.[20] On 18 November 2009, Ms Tabernacle's left middle finger was amputatedfollowing review by the specialists and discussion with her family. From this point forward, Ms Tabernacle's care was predominately provided by the intensive care team. There were a number of multidisciplinary team meetings, as well as meetings with Ms Tabernacle's family to provide updates, discuss prognosis and treatmentoptions.[21] On 20 November 2009, Ms Tabernacle developed renal failure with significant fluid overload, and was started on haemodialysis. Her condition continued to worsen.[22] On 2 December 2009, Ms Tabernacle suffered from several cardiac arrests as a result of multi-organ failure. Following a multi-disciplinary discussion, a decision was made to withdraw treatment and she died at 2.45 pm. The cause of death was recorded as multi-organ failure, septic shock and T-cell leukaemia/lymphoma.Interactions between Ms Biczo and the Accident Compensation Corporation[23] On 4 December 2009 Ms Biczo made an application for treatment injury cover to the Accident Compensation Corporation (ACC). The relevant forms were completed by an Intensive Care Specialist at the CCDHB.[24] In considering the application, ACC considered treatment injury advice from four external clinicians. As well, the CCDHB provided a report from an Intensive Care Specialist on 24 May 2010. That report accepted that a personal injury had occurred to Ms Tabernacle's finger, but disputed that this injury was a cause of death, because her condition had improved following the amputation and the removal of the Hickman line as possible sources of infection.[25] But in a decision dated 29 November 2010, ACC accepted Ms Biczo's claimfor cover in relation to a treatment injury suffered by her daughter a year earlier. The relevant injury was described as "cellulitis of the left middle finger caused by bloodglucose finger pricking necessitating amputation of the left middle finger and resulting in subsequent sepsis, multi-organ failure and death".Interactions between Ms Biczo and the Health and Disability Commissioner[26] In the meantime, in early January 2010, Ms Biczo had also sent a formal complaint to the Health and Disability Commissioner (the Commissioner) alleging multiple failings on the part of Ward 5 North of the CCDHB's Transplant Unit in thecare provided to her daughter. A further complaint was made later that month. The CCDHB provided a copy of Ms Tabernacle's notes to the Commissioner.[27] On 14 April 2010, Dr Andrew Simpson, Executive Director (Clinical) of the CCDHB's Medicine, Cancer and Community Directorate, wrote to theCommissioner. As well as responding to Ms Biczo's concerns, he advised that a"Serious Event Review" had been conducted and had identified areas of practice that could be improved and made recommendations to give effect to those improvements. He advised that discussions with Ms Tabernacle's family about the findings of the Review were to take place within the coming week. A copy of the Serious Event Review report was subsequently provided to the Commissioner.[28] The Commissioner sought independent advice on the issues raised by Ms Biczo in her complaint from Dr Peter Ganly, Clinical Director of Haematology at the Canterbury District Health Board and Haematopoietic Stem Cell Transplant Director at the South Island Transplant Unit. In his response Dr Ganly identifiedfour matters that, in his opinion, "did not go well". However, he concluded that, overall: in the course of [Ms Tabernacle's] transplant journey, it seems to me that treatments and other interventions were generally appropriate and protocol- driven reactive responses to developing problems. Unfortunately they were unsuccessful, but I cannot argue, with the benefit of hindsight, that they should have been different or should have occurred sooner.[29] On 27 September 2010 the Commissioner advised Ms Biczo and the CCDHB that, based on all the information received, further investigation into the complaint was appropriate. He noted:A great deal of work has gone into trying to identify any failings in the care provided to [Ms Tabernacle] and come up with improvements that help ensure that future transplant patients receive appropriate, and protocol-driven treatment.[30] The Commissioner identified a further four areas (ie in addition to matters identified by the Serious Event Review) requiring improvement by the CCDHB. On 15 October 2010, Professor John Carter, Clinical Leader of Haematology at the CCDHB, wrote to the Commissioner fully accepting the comments made by the Commissioner and Dr Ganly. He also responded to specific matters raised.[31] On 13 December 2010, the Commissioner advised Ms Biczo of his final decision in relation to her complaint. He expressed his satisfaction that the CCDHB had accepted the recommendations made by him and Dr Ganly and was "takingappropriate action to ensure that future transplant patients receive appropriate and protocol-driven treatment".Interactions between Ms Biczo and the Coroner[32] On 12 January 2011, the CCDHB received a letter from Coronial Services which included a copy of a letter from Ms Biczo to Coroner Ian Smith dated 12 December 2010, detailing her concerns about the care provided to her daughter by the CCDHB. Mr Smith requested copies of medical reports, a summary of events, and asked why the death was not reported to the Coroner.[33] On 10 February 2011, Dr Bob Ure, a consultant with the CCDHB's IntensiveCare Services, wrote a letter to the Coroner explaining that:As the underlying diagnosis, management and cause of death were well established, documented and familiar to a multitude of hospital specialists and to [Ms Tabernacle's] family, at the time I did not believe referral to theCoroner was necessary.[34] On 14 February 2011, the CCDHB sent the relevant medical records and reports to the Coroner as requested.[35] On 18 March 2011, Coroner Smith wrote to the CCDHB notifying his intention to hold an inquest in due course relating to Ms Tabernacle's death. On23 February 2012, Constable Carmen Stewart, the Coroner's Inquest Officer, requested that the CCDHB provide a further report to assist the Coroner.[36] On 26 April 2012, Dr Geoff Robinson, Chief Medical Officer at the CCDHB, wrote to Constable Stewart providing information supplied by Dr John Carter, Clinical Leader of Haematology, which addressed general matters about treatment following stem cell transplants and the risks relating to surgery on post-transplant patients.[37] Dr Robinson again apologised for the failure to notify the Coroner, but noted it was likely that staff had felt the cause of death was well established. He also commented that there was an on-going focus on improving the interpretation of notifications under the Coroners Act and training staff on reporting to the Coroner.His letter also attached a "Nursing Care Pathway" which set out the blood sugar level testing procedures for neutropenic patients.[38] On 11 October 2012, the Coronial Services Unit advised the CCDHB of the inquest hearing date, and requested the attendance of Dr Sturland, and either Dr Carter or Dr Simpson as witnesses. Drs Sturland, Carter and Simpson later provided written statements and gave evidence at the inquest, which was held on 20 and 21 December 2012. Ms Biczo and her family attended and were represented by Bruce Corkill QC (as he then was). Closing submissions on behalf of Ms Biczo were filed on 21 March 2013 and closing submissions on behalf of the CCDHB were filed on 19 April 2013.[39] But there was a further setback when the Coroner (Mr Smith) died before he could complete his report. On 27 November 2014 Coroner Evans asked whether the parties would object to the inquest being completed on the papers. There was none.[40] The Coroner's report was, accordingly, issued in late September 2015, after the hearing of the CCDHB's application before me. I received further submissions from Ms Biczo about it. She was critical of the report and, in particular, of theomission from the Coroner's finding about the direct cause of her daughter's death orany mention of the "treatment injury" to Ms Tabernacle's finger. His finding was that the direct cause of her death was "Multi-organ failure, secondary to septicshock, with underlying T cell Leukaemia/lymphoma."Return of the amputated finger[41] Following Ms Tabernacle's death, her body was released back to her family. But on 13 January 2010, the CCDHB received a request from Ms Biczo for herdaughter's finger, which was couriered to the laboratory at Hawke's Bay Hospital the same day, so it could be returned to the family. The CCDHB has subsequently acknowledged that the finger should have been returned to her family earlier and have apologised for this. The CCDHB paid for the associated costs of disinterment and re-interment to allow Ms Tabernacle's finger to be buried with her.Ms Biczo's claim[42] The ACC claim, the Commissioner's findings and the Coroner's report are,however, merely background to the present proceedings. Ms Biczo's claim isdirected squarely at the CCDHB and what Ms Biczo says are deficiencies in the care given to her daughter by medical staff in the Transplant Ward at Wellington Hospital,and the Board's subsequent conduct. Her particular concerns relate to:(a) the absence of an MRSA screen upon Ms Tabernacle's admission tohospital in Wellington;(b) the use of the finger prick instead of the Hickman line for blood glucose testing;(c) the circumstances and timing of the amputation of Ms Tabernacle'sfinger; and(d) the alleged delay in admitting her to ICU and giving her one on one nursing care.2[43] Ms Biczo, herself a registered nurse, is self represented. Her claim is entitleda "Civil action against Capital & Coast District Health Board: WELLINGTON" Breach of Care: and "Breach of duty of Care". It is said to be made in reliance on:(a) the Human Rights Act 1993;(b) the New Zealand Bill of Rights Act 1990;(c) the Crimes Act 1961;(d) the Coroners Act 2006; and(e) the Treaty of Waitangi Act 1975 and Treaty principles.2 Ms Biczo makes no criticism of the ICU staff all of whom were, she said, amazing.[44] In terms of remedies, she claims:(a) a $10,000 fine for failing to report Ms Tabernacle's death to theCoroner;(b) a $50,000 donation to the Blood and Leukaemia Foundation of New Zealand;(c) a $50,000 donation to "Adolescents and Young Adults (AYA); a youthdevelopment approach to care; Cancer Services Initiative";(d) Exemplary damages for herself of $1.5 million for: the failure to provide an expert Intensivist Assessment andIntensive Care admission in the three critical days prior to Andrea'snear respiratory arrest on the 11th, 12th, 13th (and nocte) of the 14th November 2009; and all the ongoing suffering, pain and anguish suffered and ALL Legal costs that will be associated with the HighCourt action filed. That my late daughter's Human Rights werebreached. The Health & Disability Code was breached. The Bill of Rights were breached.The application to strike out[45] It is unnecessary to set out the relevant strike out principles and authoritieshere. The CCDHB's application is made on the orthodox basis that the statement ofclaim discloses no tenable cause of action. More particularly the Board says that:The cause of action that appears to be founded on the tort of negligence is clearly untenable because the pleaded facts do not disclose any actionable damage; and/orThe pleaded facts are incapable of founding an award of exemplary damages for the tort of negligence because they are incapable of establishing that the defendant deliberately and outrageously ran a consciously appreciated risk of causing harm; and/orThe pleaded facts are incapable of founding a cause of action for a breach ofthe New Zealand Bill of Rights Act 1990 ("NZBORA"); and/orThe Court has no jurisdiction in these proceedings to hear and determine claims alleging breaches of the Code of Health and Disability ServicesConsumers' Rights, or a breach of the Human Rights Act 1993, or a breach of the Coroner's Act 2006; and/orThe Court has no jurisdiction in these proceedings to hear and determine alleged breaches of the Crimes Act 1961; and/orThe Court has no jurisdiction in these proceedings to grant the relief soughtThe plaintiff's causes of action are so clearly statute barred by s 4(7)of the Limitation Act 1950 that the plaintiff's claim can properly beregarded as frivolous, vexatious or an abuse of process; or alternatively that by virtue of it being statute barred it discloses no reasonably arguable cause of action.Discussion[46] A number of things are clear and should be recorded at the outset.[47] First, there is no doubting that Ms Biczo and her family have suffered a dreadful loss or that Ms Tabernacle died in circumstances which were traumatic and hugely sad.[48] Secondly, Ms Biczo's ACC claim for treatment injury was accepted and shehas received compensation for that. There has thus already been a formal recognition that Ms Tabernacle suffered a personal injury by accident that was outside the range of expected outcomes and risks of the treatment she was receiving. While Ms Biczo may be disappointed that the acceptance of her claim did not require or involve any attribution of blame, the fact that ACC is a no-fault regime is fundamental to both its genius and its success. I do not expect Ms Biczo necessarily to take comfort from this but it is worth remembering the words of the architect of the scheme, Sir Owen Woodhouse, about the failings of the alternatives. He said that:3The toll of personal injury is one of the disastrous incidents of social progress and the statistically inevitable victims are entitled to receive a co- ordinated response from the nation as a whole.The negligence action is a form of lottery. In the case of industrial accidents it provides inconsistent solutions for less than one victim in every hundred. The Workers Compensation Act provides meagre compensation for workers, but only if their injury occurred at their work. The Social Security Act will assist with the pressing needs of those who remain, provided that they can3 New Zealand Royal Commission of Inquiry into Compensation for Personal Injury Compensation for Personal Injury in New Zealand Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) at [1].meet the means test. All others are left to fend for themselves. Such a fragmented and capricious response to a social problem which cries out for co-ordinated and comprehensive treatment cannot be good enough. No economic reason justifies it. It is a situation that needs to be changed.[49] Thirdly, and as I have recorded above, the CCDHB has, in any event, accepted that various things relating to Ms Tabernacle's care "could have gone better". The Board has, indeed, made changes to its policies and procedures as a result. Ms Biczo is both entitled, and encouraged, to consider those changes as a vindication, of a sort, of her position and of Ms Tabernacle's rights. Equally, she is entitled, and encouraged, to feel that she has done everything she possibly can to putright the wrongs that she perceives have been done and to honour her daughter'smemory.[50] Having said all that, however, the conclusion that this present claim has no prospect of success is inescapable. I do not need to rehearse all of the CCDHB'ssubmissions in detail here. It suffices to note the following.[51] Insofar as any negligence claim on behalf of Ms Tabernacle herself is concerned:(a) any such cause of action vested in Ms Tabernacle now vests in her estate by virtue of s 3 of the Law Reform Act 1936;(b) section 3(2) of the Law Reform Act 1936 precludes a claim for exemplary damages;(c) Ms Biczo confirmed before me that she is not a trustee or executor of Ms Tabernacle's estate. She therefore has no formal standing to represent the estate;(d) even if that were not the case:(i) in light of the fact that ACC has already granted treatment injury cover, s 317(1) of the Accident Compensation Act 2001precludes a compensatory damages claim in relation to a personal injury;(ii) any claim for personal injury on behalf of the estate is well outside the limitation period contained in s 4(7) of the Limitation Act 1950. No application for leave has been filed and the defendant does not consent to an extension. While that does not, itself, render the cause of action untenable it renders the present claim an abuse of process.4[52] Insofar as the exemplary damages claim by Ms Biczo personally is concerned, such a claim would:(a) need to be founded on some form of "nervous shock" resulting fromMs Tabernacle's death. No medically identifiable psychiatric illnessor injury is pleaded;(b) also be statute barred by s 4(7) of the Limitation Act 1950.[53] Any claim under the NZBORA would suffer from the same difficulties of standing and limitation. As well, the CCDHB submitted, and I accept, that the case law and commentary makes it clear that events of the kind which led to4 The 1950 Act applies because Andrea died in 2009. Section 4(7) provides:(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.Ms Tabernacle's death (which I have set out earlier) do not give rise to an arguable breach of either ss 8, 9 or 11 of the NZBORA.5[54] The bases for any claims under the Human Rights Act 1993, the Crimes Act 1961, the Coroners Act 2006 or the Treaty of Waitangi Act 1975 and Treaty principles are not clear from the pleadings and I am simply unable to see how any such bases might exist. Moreover, the Court has no jurisdiction to award relief of the kind set out at [44](a) to (c) above.[55] Lastly, Ms Biczo's notice of opposition to the application to strike out referred to the possibility of seeking a declaration that the CCDHB was negligent. Indeed, at the hearing before me she eschewed any claim for damages.[56] No claim for declaratory relief has, however, been pleaded. I accept the submission that such a declaration would not be of a kind that falls within s 3 of the Declaratory Judgments Act 1908. But I have also considered whether Ms Biczo should be granted leave to amend her pleadings and to substitute a claim for an equitable declaration of negligence.[57] The starting point is that the statement of claim in its present form does not come close to pleading adequately even an orthodox negligence claim. Even assuming that Ms Biczo would be able to remedy the existing deficiencies, I have concluded that to sanction the filing of an amended claim for declaratory relief would be contrary to the object of the High Court Rules and contrary to publicpolicy. In that regard I have found the Court of Appeal's discussion in Birkenfeld v Kendall instructive.6[58] While I acknowledge the Court's wide powers to grant declaratory relief, to permit an amendment would be to condone a full blown negligence trial. Extensive expert medical evidence would, no doubt, be required. The cost to the CCDHB5 Amongst the authorities cited were Shortland v Northland Health Limited [1998] 1 NZLR 433 (CA), Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC), and Taunoa v Attorney- General [2007] NZSC 70, [2008] 1 NZLR 429.6 Birkenfeld v Kendall [2009] 1 NZLR 499, [2008] NZCA 531.would be considerable. No doubt security would be sought. Moreover, the existence (and the fact of Ms Biczo's previous resort to):(a) the ACC regime;(b) the complaints procedure under the Health and Disability Commissioner Act 1994; and(c) the coronial system;together with the policy underlying the two year limitation period strongly militate against the success of any such claim. My sense of the facts of the matter also point away from permitting an amendment. So while an application for leave to amend was not strictly before me, I record that such an application would not have been granted.Result[59] While Ms Biczo has my deepest sympathies, her claim must be struck out. It is to be hoped that she will not regard my order as a failure or refusal by the court to recognise the trauma of, and distress caused by, Ms Tabernacle's death. Rather, it is simply a reflection of the fact that sometimes resort to the law is not the answer. But it is because I perceive that it is important to Ms Biczo to have the circumstances of Ms Tabernacle's treatment and her concerns about them put on record that I have attempted to set them out in some detail above.[60] Costs on a 2B basis are sought by the CCDHB. If such an order is opposed Ms Biczo is to file a memorandum setting out the grounds within 10 working days and I will then determine the matter. If no such memorandum is filed I will make the order sought."Rebecca Ellis J"Solicitors: Crown Solicitor, Wellington, for the DefendantCopy to: The Plaintiff