Emerson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 247 197 HELD AT TE AWAMUTU 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 RUEWI FAY EMERSON Appellant (Appeal No. DCA 341/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of September 1997 APPEARANCES A D Barnett for appellant Anna de Jonge for respondent DECISION OF JUDGE D A ONGLEY The appellant lodged a claim for compensation on 4 December 1995 in relation to physical dependency on benzodiazepine drugs caused by medical misadventure. The claim related to prescribing from about 1970 to about 1984. On receiving the claim, the Corporation wrote to the medical practitioners named by the appellant as having treated her. No response was obtained from two doctors who had treated her in the 1970's. The appellant's general practitioner, Dr Asha Patel, informed the Corporation that she first saw the appellant on 24 August 1995. She did not treat the appellant with benzodiazepine drugs. Dr Patel provided the Corporation with some medical records from other practitioners. One was a letter of 26 July 1984 from Dr Tim Wilkinson, trainee intern at Queen Margaret Hospital. He stated that the - 2 . appellant asked him for a prescription for Ativan but that he declined to prescribe it to her. Dr H B Cook, gastroenterologist of Canterbury Health wrote to Corporation on 19 March 1996. He said that the appellant's records showed that she was seen in the surgical clinic on 20 April 1979 and was prescribed Ativan 3-6 Mgs per day. He first saw her in 1980 and again in 1983 when she provided a history of taking Ativan 2 mgs nightly for several years. He suggested a trial on amitriptyline to relieve symptoms of irritable bowel syndrome. Dr Amama Thornley attended the appellant in 1983. She reported that the appellant had numerous problems and was on Ativan. She considered the appellant had been addicted to Ativan for many years. Dr Thornley referred the appellant to Dr Bramwell Cook in 1983. In a letter of referral she noted that in spite of trying hard for four years she had not been able to wean the appellant off Ativan. Dr Thornley referred the appellant to Dr Audrey Harrison in 1984 - in a referral letter she said that the appellant had been addicted to Ativan for about 16 years but had recently managed to wean herself off the drug. The appellant was admitted to Princess Margaret Hospital in 1984. Dr Wilkinson reported on 26 July 1984 following an examination of the appellant - his report described the manifestation of the appellant's dependency in the following terms: "Thank you for referring this patient. As you may know she has been seen previously in this department by a Registrar, Dr Chris Robinson. At that stage she presented with chronic diarrhoea and had 'collapsed' in a supermarket. He identified then the number of psychiatric problems she had in her life but she was not prepared to tackle things with any psychotherapeutic basis. She was therefore discharged from the clinic This time, it seemed her only motive for coming was to acquire a prescription for Ativan. As you mentioned, she is convinced that she has M.E. and this explains all her somatic psychological problems. She told me that Ativan was the only way she could feel better and cope with this chronic illness. The symptoms she described included bleeding from the ears and nose, thrush, two toe-nails dropping out, headaches, myalgia, vertigo, and green urine! She admitted however that she had never seen a G.P. with any of the more dramatic symptoms. She tried to be very persuasive during the interview, often resorting to the argument that she was different and that Ativan worked for her In consultation with Dr. Robinson, I told her that I believed her problems were more of a psychological nature and that while I was not prepare to prescribe Ativan, I was prepared to offer other forms of help. I said Ativan would only hide the problems. She was not prepared to acknowledge this. I also advised her that next time she felt dramatic symptoms, e.g. green urine, that she should go to her G.P Incidentally she informs me that she has obtained a three moths supply of Ativan from her friends. - 3 - In concluding I emphasized to her that we would always be willing to help her but we were not prepared to hide her problems with Ativan." The appellant was seen at Christchurch hospital in June 1991 when it was noted that she was receiving various medications which did not include Ativan or other benzodiazepine drugs. The Corporation referred the questions of medical misadventure to its Medical Misadventure Advisory Committee. The Committee accepted that the appellant was physically dependent on benzodiazepines and the evidence indicated that she may well be physically addicted. The Medical Misadventure Advisory Committee found that the medical notes went back only to 1984, and before that there was no available evidence to ascertain who prescribed the drugs, or in what dosages, or whether or not with informed consent. The Committee could not find evidence relating to any prescribing before 1984 that amounted to medical negligence by inappropriate treatment or treatment without informed consent. It found that the records of Dr Thornley and Dr Wilkinson disclosed only appropriate treatment directed to weaning the appellant off her dependency. The Review hearing was conducted on 4 November 1996. The appellant did not appear but Ms de Jonge presented written submissions and a hand-written statement from her. In her statement the appellant claimed that a named doctor prescribed her Ativan in 1977, and that he informed her that it had no side effects and was non- addictive. That was one of the practitioners from whom the Corporation had received no response. There is no indication that either the Corporation or the appellant made any serious attempt to contacted the practitioner. The Review Officer accepted that the Medical Misadventure Advisory Committee's view was correct and that, although it is now accepted that prolonged use of benzodiazepines is likely to cause harmful dependency, there is no evidence in this case of failure of a medical professional to observe a standard of care and skill reasonably to be expected in the circumstances. Benzodiazepine prescribing was considered on appeal from the Accident Compensation Appeal Authority in Barnett v ACC High Court Auckland, M84/95, 30 August 1996. Paterson J reviewed the medical literature available to general practitioners during the 1970's and early 1980's. On this appeal it is not necessary to traverse the material that was available to the High Court in Barnett, except to mention one or two points. Although the harmful effects of benzodiazepine were referred to in the 1974 New Ethical Catalogue, which is ordinarily referred to by medical practitioners in order to obtain pharmaceutical information, the information published in the New Ethicals in 1974 was linked to extremes of dosage and prolonged use. Paterson J noted that the linkage was expressed conjunctively, and it left questions about how excessive the dose had to be and how prolonged the use had to be. He heard evidence from a consultant psychiatrist about significant research papers published between 1961 and the late 1970's which clearly documented concerns about the potential for dependency. An article by A Khan and others entitled Benzodiazepine Withdrawal Syndromes was published in New Zealand in August 1980 and referred to problems with dependence appearing to be more - 4- common that was generally acknowledged. Other medical literature up until 1980 did not universally recognise serious dependency problems with benzodiazepines. Paterson J said: "A professional person does not read every relevant publication nor can he remember everything that he reads. It is the accepted practice at the time that is relevant and not the individual practice of some doctors. (See para 6-17 Jackson & Powell on Professional Negligence (Sweet & Maxwell 1992 3rd ed)). On this basis, the articles which appeared in the New Ethicals in the mid 1970's did not in my view, amount to the accepted practice at the time. The predominance of the evidence put before me indicates that right throughout the 1970's and indeed perhaps into the 1980s, the harmful effects of benzodiazepines were not generally recognised and those side effects which were recognised, were not considered to be harmful within the current knowledge of general practitioners at that time." Paterson J determined that the harmful effects of benzodiazepines should have been part of the current knowledge of medical practitioners by at least August 1981. In the same judgment, he decided that a specialist psychiatrist should have known of the harmful effects when he treated the appellant in September 1976. That finding was specific to the treatment given in the case under appeal and does not have quite the same general application as the finding relating to general practitioners. The findings relating to knowledge expected of general practitioners are directly relevant in this appeal, and they run contrary to Ms de Jonge's submissions to the effect that practitioners in New Zealand should have been aware of the harmful effects of benzodiazepines by 1974. Those submissions included a memorandum of 25 August 1983 from a medical officer of the Corporation referring to the availability of the New Ethicals Catalogue as a standard reference and expressing the opinion that by 1974 every medical practitioner was aware of the side effects possible from any prescription drug including benzodiazepines. The effect of the information contained in the New Ethicals Catalogue was carefully considered in Barnett v ACC. It is not appropriate for this Court to embark on the question of fact argued by the appellant which Paterson J has already decided in the High Court in a carefully argued appeal involving the same question. The appellant's claim depends on establishing that she was negligently prescribed the benzodiazepine drug Ativan. Although the injury is alleged to have occurred before the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992, the claim must meet the criteria of medical misadventure in s 7 of the 1992 Act. In the absence of evidence of the circumstances of actual prescribing prior to 1983, the claim necessarily depends on drawing inferences that prescribing must have fallen below the required standard of care and skill of a medical practitioner. Such a conclusion can not be drawn readily. The question is not as simple as the appellant's advocate has submitted. It does not follow that a medical practitioner must have acted negligently because the effects of prolonged use of benzodiazepine became widely understood by the medical profession from at least 1981, and that the appellant was known to be addicted by 1983. At the time when the appellant first - 5- obtained Ativan or other benzodiazepine drugs there were legitimate reasons for prescribing benzodiazepines in appropriate cases and in appropriate dosages. She suffered symptoms which may well have justified the prescribing of some level of benzodiazepine treatment in the light of the understanding of the effects of those drugs as it was known to general practitioners at that time. It is also possible that the drugs were prescribed without proper care, but the true position is not known. The appellant's own understanding of her symptoms and her diagnosis and treatment is unfortunately of limited weight, simply because the questions are specialised and complex. The appellant's medical records show that she was also prescribed Ativan after 1983. It is clear that the medical practitioners attending the appellant were then aware of her addiction and further prescribing was accordingly limited and may be assumed to have been for justifiable reasons because there is no contrary evidence available. Ms de Jonge has made a general submission that such prescribing must have involved a failure to observe the required standard of care and skill, regardless of the purpose involved in treatment, because there could have been no legitimate purpose in exposing the appellant to further risk. That submission is unsupported by evidence. The Medical Misadventure Advisory Committee was aware of that further prescribing and made no adverse finding about it. For those reasons the appeal is dismissed DATED at WELLINGTON this Ist day of December 1997 D A Ongley District Court Judge