Yule v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 203 199 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 SHIRLEY YULE DCA 58/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The parties to this appeal have requested that the Court issue a judgment on the papers. The issue in this appeal is whether the appellant is entitled to cover in respect of personal injury by medical misadventure caused during an operation on 14 August 1996. 2 Background In April 1997 the appellant lodged a claim for cover claiming medical misadventure - low back pain after epidural for hysterectomy. On 15 August 1996 the appellant had undergone an operation for a hysterectomy carried out under anaesthetic. The appellant did not consult her GP about this matter until January 1997 when she indicated to him that she had been suffering low back pain since the time of her operation. At the time she believed that her low back pain had been caused by an epidural injection supposedly given to her prior to the operation by the anaesthetist. The appellant required treatment for this back pain and was referred for x-rays and physiotherapy. It is the costs associated with this treatment that the appellant is in -. .. . effect seeking from the respondent under her claim for cover. On receipt of the claim by the respondent it was referred to the Medical Misadventure Advisory Unit and that unit sought particulars from the anaesthetist, Dr Matthews, who had attended at the operation. The respondent was advised by the Director of the Department of Anaesthesia at Capital Coast Health as follows: Mrs Yule did not in fact have an epidural procedure as part of the anaesthetic for her hysterectomy on 14 August 1996. The anaesthetist (Dr D Matthews) had intended to perform a caudal block and had discussed this with the patient pre-operatively. Following induction of general anaesthesia, the sacral hiatus could not readily be identified and the proposed caudal was therefore abandoned and intravenous morphine used instead for post-operative analgesia. On 15 April 1997 a report was provided by the appellant's GP, Dr Rochford. Moderate degenerative change at the lumbosacral junction with the L5/SI disc space exhibiting the vacuum phenomenon indicating disc degeneration. The remainder of the lumbar spine shows minor degenerative change only. ... She denies any back pain prior to her hysterectomy in August 1996. She tells me that she had an epidural anaesthetic for post-operative pain relief and she feels that this may be the cause for her back pain. The respondent sought a further report from Dr Matthews, who had performed the anaesthetic procedures, and in a report dated 24 June 1997 Dr Matthews stated: 3 Mrs Yule was seen pre-operative on 14 August 1996 and a caudal injection and general anaesthetic were discussed and agreed upon. The caudal injection was performed prior to the induction of general anaesthesia. Caudal injections are made through the sacrococcygeal membrane in the area of the sacral hiatus. In laymen's terms this is between the lower tip of the sacrum and the upper coccygeal bone (coccygeal bones are the small bones that may be felt lower most on the spine in the region of the natal cleft). I attempted a caudal injection but was unable to pierce the sacrococcygeal membrane. Consequently, no injection of local anaesthetic was made, the needle withdrawn and the procedure abandoned. No further attempts were made at performing a caudal injection either with the patient awake or asleep. In conclusion the patient complains of low back pain and associates it with an epidural. The patient did not receive such an injection. A caudal injection of local anaesthetic was attempted but the sacrococcygeal membrane was unable to be located and an injection was not made. While a successful caudal injection deposits local anaesthetic in the sacroepidural space it is a simple technique and avoids damage to lumbar structures such as nerve roots that may occur with a lumbar epidural. The symptoms described by the patient are unlikely to be associated with the attempted caudal injection. On 12 July 1997 the respondent advised the appellant that her claim was declined. The appellant thereupon lodged an application for review and in that application stated: The caudal block was not discussed. I would have refused it if it had been. Because the appellant's application for review raised a new issue of lack of informed consent the respondent sought further comment from Dr Matthews and in a letter dated 22 September 1997 he stated: As far as the issue of consent is concerned the hospital pre-anaesthetic records show that a caudal and a general anaesthetic were discussed and explained in the ward on the evening prior to surgery (I enclose a copy of the relevant record, the parts highlighted for your information). Formal consent for anaesthesia is not currently taken by members of the anaesthetic staff as a consent to surgery includes the consent for anaesthesia. Nevertheless it is my policy to fully discuss planned anaesthesia with my patients and not proceed with techniques not agreed to by the patient. Although the records do not explicitly say so I would not have endured with a technique that caused pain. The notes state that the procedure was abandoned. Hospital and follow-up appointment notes do not record any mention of back pain. 4 The procedure was performed with the patient awake and there was no request by her to stop the procedure due to pain. I decided to abandon the procedure as I was unable to pierce the sacrococcygeal membrane. The respondent then sought specialist opinion from Dr F E Bennett, Anaesthetist, and in a report dated 28 October 1997 he stated: Mrs Yules claim is essentially for recompense for therapy required for low back pain following a hysterectomy. It seems that Mrs Yule considers that the caudal anaesthetic administered by David Matthews was the cause of her problem. I note in the anaesthetic record that Dr Matthews comments that he attempted a caudal anaesthetic but was unable to find the sacrococcygeal membrane to insert a local anaesthetic. His anaesthetic form also records that Mrs Yule was placed in the lithotomy position and does note that she had a major difficulty with anxiety associated with the procedure. The anaesthetic was conducted subsequently with full sedation to produce a general anaesthetic with spontaneous ventilation via a laryngeal mask. It is of interest that Mrs Yule did not appear to have problems for some days following the procedure. Mrs Yule does describe lower back pain but not coccygeal pain. One would accept that coccygeal pain could have originated from the failed caudal but lower back pain is much more likely to have developed as a result of the lithotomy position for the operation. Back pain following lithotomy is not rare. Back pain following an epidural is not rare. Mrs Yule's pain, although causing discomfort would not fulfil the requirements for severity as defined by the Act, particularly as there is other information (an x-ray report dated 18.02.97, showing moderate degenerative change at the lumbosacral junction with the L4ISI disc space exhibiting the vacuum phenomenon indicating disc degeneration, contained in a letter from her general practitioner, Dr Rochford, dated 15.04.97) which would indicate that she has other pathology that could well cause the back pain as a consequence of her procedure. It is quite understandable that Mrs Yule could consider that the caudal was the cause of her pain. However when one considers the anatomy and physiology of the whole process, the caudal injection can be put into a proper perspective. 5 Overall it would seem unfortunately that there is no other option other than to recommend that this claim be declined because there is insufficient evidence to confirm that the caudal anaesthetic was the cause of the low back pain, as claimed by Mrs Yule. Following receipt of Dr Bennett's advice the matter was again referred to the MMAC who reported as follow: The Committee is quite unable on the evidence presently available to it to find a causal relationship between Mrs Yule's complaints and the alleged caudal epidural anaesthetic, As recorded, Mrs Yule did not undergo a caudal injection of anaesthesia, this procedure having been abandoned, Instead she received a general anaesthetic. There is no recorded complaint by her until January 1997, and x-rays taken in February 1997 show pre-existing moderate degenerative change in the lumbosacral junction "where the LSISI disc space exhibiting the vacuum phenomenon indicating disc dejeneration". The Committee is of the view that, if there is any association between Ms Yule's -.--- back symptoms and the vaginal hysterectomy undergone by her on 15.8.96, it is likely that there was an exacerbation of her pre-existing lumbar spinal degenerative change as a result of her being placed in the lithotomy position. Even assuming such an exacerbation, Ms Yule cannot have cover for medical mishap because the likelihood of back pain following lithotomy is more than 1% as required by section 5(2) of the Act. Whether or not her back pain is severe, she cannot satisfy the requirements of the statute as to rarity and, in any event, the Committee Ms Yule's back pain has no evidence before it linking Mrs Yule's back pain with her being placed in the lithotomy position. The statistical incidence of back pain following lithotomy is well in excess of 1%. The matter then proceeded to a formal review hearing on 15 December 1997. At that hearing both the appellant and Dr Matthews gave evidence and in his decision issued on 16 January 1998 the Review Officer made a finding of fact, having considered the evidence of both the appellant and Dr Matthews, that the issue of a caudal spinal injection was discussed and that there had been no failure to obtain informed consent. In relation to the causal link between the appellant's back pain and the caudal injection the Review Officer found as follows: ..The Corporation has obtained statements from Dr Matthews as well as comment from two specialist anaesthetists. The, conclusion that has been drawn is that it is unlikely that Mrs Yule's subsequent back pain is a consequence of the failed caudal injection attempt. In light of the information on file, and from Dr Matthews' statements at the hearing, I consider this to be a 6 reasonable determination. I consider that on the balance of probabilities, Mrs Yules lumbar pain is more likely a result of the lithotomy position than the caudal injection attempt. Furthermore, I do not consider the back pain reported by Mrs Yule to meet the severity criteria required under the Act. The Review Officer therefore upheld the respondent's decision to decline the claim. For the purposes of appeal to this Court the appellant stated in her Notice of Appeal that the part of the decision appealed from was "request for no spinal injection which Dr Matthews does not recollect but was definitely told not to give." In further submissions the appellant referred to typographical errors in portions of the transcript but I consider that none of those errors was germane to the issue in the appeal. In further written submissions the appellant reasserted that she informed Dr Matthews the day before the operation that she did not want an epidural or spinal injection. At the time of the operation she thought she was receiving an epidural and that he met an obstruction. She stated he apologised for the pain and than abandoned the procedure. In written submissions received from Ms S Scott, counsel for the respondent, counsel submitted that the appellant needed to establish firstly that the low back pain she experiences was as a result of a caudal injection administered during her operation and secondly that there was a negligent failure on the part of the professional performing that procedure to obtain informed consent. Counsel submitted that there is no medical evidence to establish that the low back pain is likely to be as a result of a caudal injection, rather the evidence is wholly the other way. Insofar as informed consent is concerned, counsel referred to the fact that both parties gave evidence at the review hearing and that the Review Officer had the opportunity 7 of seeing and hearing the witnesses and has made a finding. That finding of credibility ought not to be disturbed on appeal without good cause. Decision For the appellant to be entitled to cover under section 5 of the Act it must be established on the balance of probabilities that she has suffered personal injury resulting from medical error. There is no suggestion that the features necessary to establish the alternate basis of medical mishap can be established. As identified by counsel for the respondent, there needs to be established a causal connection between the personal injury and the alleged medical procedure which has been carried out negligently. In this case the appellant complained of low back pain said to have been caused by the administering of a caudal injection, such injection being administered by Dr Matthews and said to be contrary to her specific direction for him not to do so. The evidence establishes that the appellant did not receive a caudal injection, there being an unsuccessful attempt only to administer one. No anaesthetic was administered by this means and furthermore the expert evidence established that the symptoms described by the appellant are unlikely to be associated with the attempted caudal injection. That is the medical evidence and no evidence to the contrary has been adduced. The Court notes from x-rays provided by the appellant's GP that she did suffer from moderate degenerative change at the lumbosacral junction with L5/S1. Dr Bennett advises that the back pain suffered by the appellant could well have been caused by her being placed in the lithotomy position for the operation and he indicates that back pain following being placed in this position is not rare. He noted that being in that position and with a back which was exhibiting degenerative change, pain could easily have been triggered. 8 It was the decision of the MMAC that no causal relationship could be found between the appellant's complaint and the alleged caudal epidural anaesthetic. This Court has been shown no evidence which would in any way detract from that finding. Accordingly that evidence must be accepted. Furthermore in the absence of clear and cogent reasons, this Court finds it must accept the findings of fact made by the Review Officer on the question of consent. The Review Officer saw and heard the witnesses and was able to come to a decision that the question of a caudal injection had been canvassed with the appellant prior to the operation. In addition to the evidence of Dr Matthews himself, there are the pre- operative notes which indicated that an explanation of the procedures had been given and this supported his oral evidence. In the circumstances this Court is not in a position to question those findings by the Review Officer and again, for the purpose of this appeal, they must be accepted. In the circumstances therefore this appeal must fail as the appellant cannot establish either the necessary element of negligence in a failure to obtain informed consent or a causal connection between the alleged medical procedure complained of and the injury which she says she has suffered. This appeal is therefore dismissed. DATED at WELLINGTON this 23 day of July 1999 M J Beattie District Court Judge 58.98. Yule.doc