Lindsay v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 181 /98 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 RYAN STUART LINDSAY DCA 360/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of March 1998 APPEARANCES: Mr D Heperi advocate for appellant Ms C Taylor counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the injury suffered by the appellant during his birth constitutes medical misadventure within the meaning of the Act 2 BACKGROUND Ryan Stuart Lindsay was born at Huntly Hospital on 10 January 1997. During the course of his delivery he suffered a fracture to his right upper arm. The circumstances of the birth and the injury was subsequently reported to the Corporation by Dr P Weston, Paediatrician, his report stating as follows: "the infant was delivered at Huntly Hospital, and in the late second stage suffered shoulder dystocia. This occurs when the head of the infant is delivered through the pelvis but the shoulders are held up, and is a regular complication of large birth weight babies. In such circumstances a variety of manoeuvres can be undertaken by the midwife or doctor, and these manoeuvres can require manipulation of the baby's arm. As such a fracture of the arm is an understandable complication, and well recognised. The infant was delivered, and found to have a birth weight of 4880 grams (very large infant). He also developed some respiratory distress and was transferred over to Waikato Hospital for an x-ray. This confirmed a fracture of the right humerus. Humeral fractures in infants typically heal well with no functional long- term deficit. Discomfort in the first days can be a problem, and is usually managed by strapping the arm to the body, and thereby rendering it immobile. During the course of this infant's admission the respiratory distress settled quickly and the discomfort from the fracture settled after two days. The child was transferred back to Huntly Hospital at five days of age. With regard to your specific questions: 3 1. Details of any investigations - x-rays of the fracture were undertaken. 2 . Copies of all relevant notes - I include copies of the orthopaedic notes from 15 January, 22 January and 12 February. 3. Nature and extent of the claimant's disability - there was little specific disability evident at the time of the fracture, although some discomfort was obvious. An alternative way of viewing this issue to consider that if the birth had not been expedited by manoeuvring of the arm (and inadvertently incurring a fracture) then the consequences may have been more grave in that perinatal asphyxia with consequent cerebral injury might have resulted in a much more severe and longstanding disability. 4. The current status and prognosis - it is likely that the arm is causing no distress currently, and will remodel and recover to complete normality without any functional loss at any stage." A claim for cover was made on behalf of the appellant and the matter was referred to the Medical Misadventure Advisory Unit. The unit considered the claim as one of medical mishap but found that in terms of section 5 of the Act the adverse consequence of the treatment, namely the broken arm was not rare nor was it severe. Subsequently the unit reconsidered the question of rarity and acting on further expert advice it found that in fact the adverse consequences were rare within the definition of that term in section 5(2) of the Act. However, it maintained its opinion that the adverse consequences of the treatment were not severe in that the infant did not suffer a significant disability lasting for more than 28 day in total. The committee noted that the arm is usually strapped in the days following birth and the pain can last for up to two weeks. There was no evidence before the committee to establish that the 4 appellant had been significantly disabled for a period of greater than 28 days. The parents of the appellant sought a review of that decision and for the purposes of that review a note from their GP Dr Robertson was produced which stated "This is to confirm that Ryan Lindsay needed to be in a supported suit for 5 weeks after treatment of his injury at birth". After the review hearing the Review Officer sought to obtain further expert opinion on the question of whether or not the infant suffered from a significant disability lasting for more than 28 days and sought the opinion of Dr B E Tomlinson, Paediatrician. Dr Tomlinson reported on 25 August 1997 and stated: "There is no doubt from the information supplied that this baby suffered an accident or injury during birth which resulted in a fracture of the right humerus. I quote from the text book Current Paediatric Therapy edited by Professors Sidney Gellis, M.D and Benjamin Cagan M.D. In the chapter on Birth Injuries it is stated that a fracture of the humerus is usually associated with a difficult delivery. Simple fractures of the humerus in good alignment requirement immobilisation and splinting with the arm adducted and the forearm flexed at 90 degrees. All that is usually required is simply immobilisation for three to four weeks with light splints. Prognosis for birth fractures is good. In my experience as a Paediatrician dealing with this type of birth injury, this has been the case. 5 I note from the copy supplied of Dr Warren Robertson's report that he considered a supported suit was necessary for five weeks. I cannot comment on why he considered a longer period of support was necessary as I did not see or examine this baby at the time. Opinion This type of injury suffered during the birth process does not usually cause a significant disability lasting more than 28 days. Wearing a supported suit for five weeks, if necessary is unlikely to be a significant disability for a new-born infant." On the basis of Dr Tomlinson's opinion that wearing a support suit for 5 weeks is unlikely to be a significant disability for a new born infant, the Review Officer ruled that the necessary criteria for severity had not been made out and the Corporation's decision to decline cover was confirmed. In this Court the only issue for determination is whether the adverse consequences of treatment resulted in significant disability lasting for more than 28 days in total. No further medical evidence was adduced for the purposes of this appeal but the Court's attention was drawn to a Corporation file note made on the 12th of February 1997 relating to a discussion which the author of that note had with the appellant's father. The relevant portion of that note states "Arm has been in "sling" until last week - obvious pain with movement. Now out of sling- moving normally. Parents have been advised that it could take up to one year to "stretch out properly". Advice that may not meet severity - will need med reports". 6 The significance of that file note is that it was made some 33 days after the date of the alleged mishap and that the child's arm had been removed from its restraint a week ago and that the arm was now moving normally. From an evidential point of view this appeared to be at variance with the statement of the parents and Dr Robertson that the child had been encased in some sort of support suit for 5 weeks. In a further submission received from Mr Heperi the support suit is described as being an elasticised tube with a hole through which the good arm was allowed to protrude: the fractured arm being held firmly immobile against the body. It was stated to be similar in appearance to an elasticised ankle support with a hole for a person's heel. Counsel made the submission that the arm was never in a "sling" but that it was rendered immobile for the period that the support suit was in place. This Court has to consider the question of severity which is defined as meaning a significant disability lasting for more than 28 days. Ms Taylor, Counsel for the respondent, submitted that it must be the injury which is the disabling feature and not the treatment which may have the effect of disabling the patient. In addition to the discussion with the appellant's father there are also the clinical notes from the Fracture Clinic where the infant was examined on the same day namely 12 February 1997. Those notes state: "12.2.97 This young lad was born on the 10th January and suffered a fracture of his right midshaft humerus at the time. A month down the track now there is excellent radiological and clinical evidence of union with huge amounts of callus formation and even some evidence of remodelling already. The child is moving the arm quite freely and does not appear to be in any discomfort. There is palpable callus. This is an excellent result of a somewhat unusual fracture and we have fully explained the facts to the Mother and she understands. There is no point in x-raying him again unless there are specific worries and the bone will remodel over the next 12 months or so. ..." It was Mr Heperi's submission that the child being unable to have the use of his arm for the period that it was in a disabled position allowing it mend was a significant disability and that it did last for more than 28 days, that being the time in which he was unable to freely move his arms. From the evidence and the notes made at the time I find that whilst the fracture of the arm was a significant injury and was significantly disabling for a short period of time, that significant disablement did not last more than 28 days. That is the opinion of an expert namely Dr Tomlinson, and it is borne out by the clinical notes and also the statement of the father made on the 12th of February. Whatever may have been the restrictions on the child's movement following birth, those restrictions had largely gone before 28 days had elapsed. This is in line with Dr Tomlinson's advice based as it was on academic opinion that "all that is usually required is simply immobilisation for 3 to 4 weeks with light splints." The fact that the child may have been in some sort of support suit for 5 weeks does not of itself mean that a significant disability lasted for that period". I accept Ms Taylor's submission that the significant disability must mean that the injury continues to be significantly disabling rather than the patient 8 himself being disabled by the particular type of treatment that is being administered. If indeed there was a period of disablement in this case for more than 28 days then such was not significant and nor was it related to the injury . Accordingly then, this Court finds that the evidence is quite clear that the injury suffered by the appellant during his birth was not severe and therefore, an essential ingredient for a claim of medical mishap cannot be made out. This appeal is therefore dismissed. DATED at WELLINGTON this 14th day of August 1998 M J Beattie District Court Judge Lindsay.doc(gm)