Ross v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 266 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN SIMON GLYN ROSS (Al 642/04 and Al 370/06) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 20 November 2007 APPEARANCES Mr J S Fairclough, Counsel for Appellant. Mr I G Hunt, Counsel for Respondent. Mr C James, Counsel for Interested Parties. RESERVED JUDGMENT OF JUDGE M J BEATTIE 1] There are two issues for determination in this appeal. The first issue arises from the review decision of 13 December 2004, whereby the Reviewer confirmed the respondent's primary decision of 23 July 2003 declining the appellant's claim for cover for personal injury by medical misadventure being medical mishap. [2] The second issue arises from the review decision of 25 August 2006, confirming the respondent's primary decision of 8 July 2005, whereby the appellant's claim for cover for personal injury by medical misadventure, being medical error, was declined. [3] To put these claims in their context it needs to be noted that following the lodging of a claim for cover in September 2002, the respondent and its Medical Misadventure Unit, considered both medical error and medical mishap and made its first primary 642.04 & 370.06 (pg) 2 decision declining cover on both grounds on 23 July 2003. That decision went to review. In the review decision the Reviewer confirmed the respondent's decision as it related to medical mishap, but quashed the decision as it related to medical error in the light of further medical evidence that had come to hand. It directed that the respondent further investigate the question of medical error and issue a further decision. [4] The respondent took that course and after receiving further specialist evidence and opinion, it issued a further primary decision on 8 July 2005 declining cover in respect of medical error. Thus it is that the claims of medical error and medical mishap are both in issue but have arisen consequent upon separate primary and review decisions. [5] The appellant was born on 6 January 1994, he being delivered by emergency caesarean section carried out at Wellington Hospital. [6] Essentially, the events which occurred in the seven days preceding the appellant's birth are the vital ones in this appeal. 7] Before considering those matters in detail the general background facts relevant to the issues may be stated as follows: . The appellant was the first pregnancy of his mother, Mrs Camille Ross. . Mrs Ross was under the care of Dr A E Armstrong of Blenheim and he was her Lead Medical Carer ("LMC"). Dr Armstrong's records show that Mrs Ross's pregnancy was unremarkable down to and including her check-up with him on 9 December 1993, when she was 27 weeks. The normality included appropriate increasing fundal height and maternal weight gain. Mrs Ross made an appointment to see Dr Armstrong on 30 December 1993, when at 30 weeks gestation, as she had been suffering from an upset stomach for a number of days and became concerned that this might be affecting her pregnancy. Dr Armstrong was on holiday as of 30 December and Mrs Ross instead saw his locum, Dr G Gardiner. Dr Gardiner carried out an examination and noted that Mrs Ross' uterine size was consistent with that of 26 weeks and that there had been no increase in 642.04 & 370.06 (pg) 3 fundal height or weight. Dr Gardiner suspected Intra Uterine Growth Retardation ("IUGR"). An appointment was made for Mrs Ross to undergo pelvic ultrasound with Dr H Fraser, Radiologist the following day, the 31" December 1993 It is of relevance to note that 31 December 1993 was a Friday, as a consequence of which, Monday, 3 January 1994 and Tuesday, 4 January were statutory public holidays Dr Fraser carried out an ultrasound scan on 31 December. . The report made by Dr Fraser states: "Single foetus is demonstrated in a vertex presentation. There is very little fluid around the baby and the baby is two weeks, two days behind the expected measurements with a moderately thin placenta. This is consistent with IUGR." What became of that report will be considered in greater detail later. One of the measures instituted by Dr Gardiner at his consultation on 30 December was to instruct Mrs Ross to commence monitoring the baby's movements and complete a "Count to Ten Chart". Mrs Ross was asked to identify whether she was getting ten movements per day. In the 24 hour period between 4 and 5 January Mrs Ross did not experience any movements. She arranged an appointment that day, the 5th January to see Dr Armstrong who had returned from holiday and was on duty at his medical chambers. Dr Armstrong noted the records made by Dr Gardiner of his examination of 30 December, but seems not to have had reference to the ultrasound scan, although he was aware that one had been done Dr Armstrong, despite being told of the lack of foetal movement elected not to take any positive steps. . Mrs Ross continued not to experience any foetal movement and as a result of increasing concern she took herself to the maternity ward at Wairau Hospital on the morning of 6th January. . Various tests were conducted at Wairau Hospital which resulted in Mrs Ross being helicoptered from Blenheim to Wellington Hospital where, in short order, an emergency caesarean section was carried out and Simon was delivered. . Simon was in poor condition at birth with no respiratory effort, slow heart and significant growth retardation. 642.04 & 370.06 (pg) 4 An ultrasound scan of Simon's head carried out one week after birth demonstrated the presence of bilateral intraventricular bleeds ("IVH") with Grade IV haemorrhage on the left and a Grade Ill haemorrhage on the right. . A further ultrasound carried out on Day 14 showed Simon had now developed bilateral brain cysts, consistent with him having now suffered some white matter brain death. Simon's brain injuries have developed into severe intellectual handicap and cerebral palsy. Whilst these events took place in January 1994 no claim under Accident Compensation legislation was lodged on Simon's behalf until September 2002, when a claim for cover form was completed by Simon's father and his then GP, Dr Wilkinson. . The claim was investigated by the respondent's Medical Misadventure Panel which obtained a number of reports including those of Drs T V Stanley and D M J Barry, Paediatricians, and Dr H S Liddell, Obstetrician. Consequent upon those various reports the respondent determined that Simon's condition could not be linked to any medical treatment, but was a consequence of his poor pathological condition and was due to prenatal problems. Both medical error and medical mishap were discounted, both on the basis that Simon's injuries were not caused as a consequence of treatment. As earlier noted, the first Review decision on 13 December 2004 confirmed the decision that cover could not be had for medical mishap, but required the respondent to again consider the question of medical error, particularly the activities of Dr Armstrong and Or Fraser. A number of medical reports have been obtained from various specialists who gave advice to the Medical Misadventure Unit on the issue of medical error, now expanded to include Dr Armstrong, Or Gardiner and Dr Fraser. Details of those reports will be considered later in this Judgment. Acting on the advice of its Medical Misadventure Panel, the respondent issued a further primary decision on 8 July 2005 declining Simon's claim for cover consequent upon medical error. Included in its decision was a determination that Dr Armstrong's action, or lack of it, on 5 January 1994 constituted medical error but, on the advice of specialists, it could not be said that this error caused or contributed to the personal injury now sought to be covered. 642.04 & 370.06 (pg) 5 The decision further determined that the actions of Drs Gardiner and Fraser did not fall below the standard of care and skill to be expected in the circumstances The respondent's decision was confirmed by a Review Decision dated 25 August 2006 at which the Reviewer accepted the opinions of the specialists who had provided advice to the respondent's Medical Misadventure Unit. [8] As noted, there was a finding of medical error against Dr Armstrong but that it was found to be not causative of any personal injury, the specialist evidence being that any acts or omissions conducted by Dr Armstrong on 5 January 1994 would not have affected in any significant way the state of affairs that was revealed at the time of Simon's birth the next day. That finding is not being contested by the appellant and therefore that aspect does not form part of the matters required to be determined in this appeal. Medical Error 19] The primary allegation of medical error being made on the appellant's behalf is that made against Dr Fraser, the Radiologist who conducted the ultrasound scan on 31 December 1993. The allegation made is that having determined by way of ultrasound scan that the foetus was suffering significant IUGR, Or Fraser ought to have immediately made contact with the referring doctor, namely Or Gardiner, and advised of his finding with the knowledge that this finding required Dr Gardiner to take some urgent action [10] It is the case that the allegations against Dr Fraser were not made until some nine years after the event and he candidly advises that he has no recollection at all of this particular event and further, any records that may have consisted of written communication between he or his office and Dr Gardiner no longer exists. Similarly no records still existed from Dr Armstrong's end. Dr Gardiner had no recollection of the matter save for the notes that he made of his attendance on Mrs Ross on 30 December 1993. [11] Dr Fraser first became aware of the claims made against him in early 2005 and he provided a report to the respondent's Medical Misadventure Unit dated 17 May 2005. Some of his report is a response to criticisms of him by a GP, Or Stuart Tiller, 642.04 & 370.06 (pe) 6 who had been consulted by counsel for the appellant, but leaving those responses to one side for the moment, Dr Fraser stated as follows: " acknowledge that on 31 December 1993 / performed an obstetric scan on Mrs Camille Ross at the request of Or Guy Gardiner. You have the report of that scan in your file. 't has been suggested that I failed to communicate the results of the scan, which were not normal, to the referring practitioner. As the examination was carried out more than eleven years ago, I cannot recall from memory, the precise details of the examination. / can say however, that it would have been in marked variance to my usual standard of practice not to try and pass on to the referring doctor or their proxy, the substance of such a report. Copies of ultrasound scan reports were also routinely sent to Ward One, the obstetric unit at Wairau Hospital. The film packet of any case performed at that time was transferred to the filing system at Wairau Hospital in order that, should an out of hours emergency situation occur, with aconsequent hospital admission, the radiology record, public or private was readily accessible. Unfortunately, without my knowledge or permission, the authorities at Wairau Hospital have seen fit to destroy the records of that time so I have no way of checking to see what happened to that particular case. In summary, I acknowledge having performed a scan on Mrs Camille Ross on 31 December 1993, but in the absence of relevant documentation, I cannot state in what way the information about that scan was transferred to the referring doctor. I can state that it was and still is my standard of practice to communicate significantly abnormal results expeditiously by phone or fax to a referrer or their proxy, either the practice nurse, receptionists, or answer phone [12] Dr Fraser made further comment in a letter to the Medical Misadventure Unit dated 10 April 2006. Again he expresses his disquiet about certain opinions expressed by persons outside his particular discipline, but on matters of relevant fact he stated as follows: "It is only in relatively recent times that I have been notified of the matter and understandably I have no recall of this consultation on the 31" December 1993 Because of circumstances entirely beyond my control, there are no records which can substantiate that I made best endeavours to ensure that the GP practice was made ware of my findings. My consultation was on New Year's Eve, Friday and I would have been very aware of the pending holiday period. It was then my usual practice with findings such as this, to either ring them through myself, or ask my personal assistant, Judy Stretch, to make the call and/or fax them through to the practice. Whatever options, I am confident that experienced Judy Stretch would not have left for the day such findings either unnotified or untransmitted by fax. Furthermore, as a backup, all obstetric reports, unless embargoed by the patient herself, were copied to Ward 1, Wairau Hospital at the same time as the principal report was issued. In other words, her desk would have cleared before she left - that was my experience with her, that was my practice, and I can envisage no circumstances where I or Judy Stretch would have deviated from that. For professional commentators to state that I failed to observe a standard of care and skill to be expected because I failed to act with urgency in notifying the GP of my findings, merely because the GP does not appear to have them available when he consults with the patient some five days later, verges on vexatious. Simply put, the 642.04 & 370.06 (pg) 7 findings on the scan were significant and / cannot envisage any circumstance which would have precluded all reasonable steps being taken to get those findings to the GP practice with urgency whether it be by phone call or fax." [13] The final comment from Dr Fraser which has relevance is his response to the statement made by Mrs Ross that he arranged with her to have a follow-up scan in three weeks' time. Mrs Ross had made this statement in the light of a form which she had which showed that such a follow-up was intended. Or Fraser stated that the particular form, whilst it is a form from his practice, is a form held by the GP and which would be presented by the patient at the time the X-ray was sought. He stated that this form was given to the patient by the GP. The patient would initiate the appointment. Dr Fraser stated that he has seen the appointment diary for the period in question and there is no record of any appointment for Mrs Ross [14] Mrs Ross has made certain statements which have been considered and her statements regarding her attendance on Dr Fraser for 31 December 1993 are as follows: "The next day, 31 December 1993, I attended a scan conducted by Dr Fraser. Dr Fraser told me that he was concerned that the baby was stressed, that it was too small given how far along I was in my pregnancy and that I needed to put my feet up, rest immediately and make an appointment as soon as possible with my doctor to discuss the scan. He also said "If you don't rest you will spend the rest of your pregnancy in Ward 1 (meaning Wairau Hospital). He said that there was very little fluid around the baby, and that the baby was stressed. I discussed the Count to Ten Chart with Or Fraser and noted that I was getting ten movements per day because of hiccups. He told me that I should only mark one cross on the Chart to note the hiccups, and that other movements should be noted separately. While I understood that Dr Fraser was concerned about my pregnancy, I did not get any sense of urgency from him as regards visiting my doctor to discuss the scan, so I made an appointment to see Or Armstrong as soon as he returned to his surgery, which / believe was on 5 January 1994. The delay was due to the New Year Holiday period." In a subsequent statement dated 8 October 2002, Mrs Ross stated as follows: 'The gentleman who took the scan, said that the baby was stressed, immediate rest was required, that he wanted to see me again in three weeks, and make an appointment with my doctor to discuss the scan." In an affidavit sworn on 5 March 2007, Mrs Ross stated, inter alia, as follows: "6. "On 31 December 1993, in the late morning or early afternoon the scan was performed by Radiologist, Dr Fraser. 642.04 & 370.06 (pg) 8 6.1 Dr Fraser told me he was concerned about the baby. He said the baby was stressed, that I was too small for my dates, that there was very little fluid around the baby and that I needed to rest immediately. 6.2 He said I would have to give up work immediately. I worked as a Customer Services Agent at Blenheim airport 6.3 He said, "If you don't rest you will spend the rest of your pregnancy in Ward (meaning Wairau Hospital") 6.4 I remember discussing the Count to 10 Chart with him and telling him that ! was getting 10 movements per day only because of the baby's hiccups. He told me to count the hiccups as one movement and to note the other movements separately. 6.5 He told me to make an appointment as soon as possible with my doctor to discuss the scan. He did not mention that he would discuss the scan with my GP. 6.6 Dr Fraser also stated that he would like to see me again in 2 or 3 weeks for another scan. 7. Following the scan I was worried sick and spent the afternoon crying. While / understood from Or Fraser that my situation was serious, I thought it was not life- threatening because he had not taken steps to have me admitted straight to hospital." [15] In a statement made in response to Mrs Ross' affidavit, Or Fraser stated as follows 'I have sympathy and compassion for Mrs Ross and her son and can but imagine the hardship and difficulties posed by Simon's profound disabilities. I am loath to be quibbling with statements made by Mrs Ross in her affidavit, but I feel compelled to take issue with some of those set out in the sub paragraphs of paragraph 6. I cannot accept these statements that are attributed to me. Simply put, they are 'not me'. Although ! cannot recall the conversations, I am certain that I would not have made these observations or proffered this advice. I might well have made the general comment to Mrs Ross, couched in conditional terms, that if the baby did not grow she might have to slow down from work or consider stopping work. I am a radiologist and it is really not my place to be giving advice in terms such as this. These comments attributed to me are not the sort of thing I would say, as they are not in the realms of my experience and it is not my role to be giving such advice or directives I know nothing of such matters as foetus movements and hiccups. This is not a side of medicine that I have any knowledge of and I would not be able to enter any discussion on these topics or give advice advice on them. I can only speculate that Mrs Ross had this discussion (in particular as refers to para. 6.4) with someone else." [16] The foregoing consists of the evidence from the two protagonists and the following now are the opinions expressed in relation to that evidence. 4 & 370.06 (pg) 1. Report from Dr Hilary Liddell, Consultant Obstetrician and Gynaecologist, dated 14 July 2003. This was the first of two reports by Dr Liddell. On the question of medical error relating to the ultrasound scan she stated as follows: "The ultrasound scan performed on 31" December 1993 does show evidence of reduced liquor and intrauterine growth retardation. This would be an indication for closer fetal monitoring and assessment. In 1994 the use of kick charts was a common method of antenatal monitoring of fetal well being. The movements recorded over the next days are normal. After having had no movements for 24 hours, as per the instructions on the antenatal fetal movement chart, Mrs Ross did present for assessment. An abnormal CTG was obtained and subsequently a pelvic ultrasound, repeat antenatal CTG and specialist opinion was sought. Mrs Ross was transferred urgently and delivered expeditiously I cannot conclude on the basis of the evidence that I have that there is evidence of medical error in this obstetric management." 2. Further report from Dr Liddell dated 21 January 2004 to Medical Misadventure Unit. Dr Liddell had been provided with further information relating to the events surrounding Simon's birth and she commented further on Dr Fraser's role as follows: "The doctor who saw Mrs Ross at that time was rightly concerned about lack of growth of the baby and ordered a pelvic ultrasound which was performed on 31" December. This showed evidence of intrauterine growth retardation and decreased liquor, in fact very little fluid around the baby. The ultrasound was conducted by a radiologist who could not be expected to be involved in the clinical management of the pregnancy, however he obviously recognized this scan as being abnormal and Mrs Ross was advised to rest. She had also started a fetal movement chart at that time on the advice of the relieving doctor. It appears that the instructions to fill in the fetal movement chart were confusing to Mrs Ross and she misinterpreted the baby having hiccups for actual movements. She reports that there were decreased fetal movements over this time and that she communicated that to her lead maternity care giver when she saw him on 3" or 5 January. On this visit her weight had dropped. The record shows that her diastolic blood pressure had been higher than on previous occasions and her fundal height had not grown over the past month. Dr Armstrong records that his practice would have been to advise fetal heart monitoring and a scan. A scan had already been done and the results of this were not checked at this time. " 3. Report from Dr Stuart Tiller, General Practitioner, dated 7 November 2004 to appellant's counsel. Dr Tiller was asked to give his opinion on various matters from the perspective of an experienced New Zealand General Practitioner, Or Tiller having been in practice for 25 years. He was asked for his opinion on whether Dr Fraser had observed the standard of care and skill to be expected in the circumstances. His advice was as follows: 642.04 & 370.06 (pg) 10 "The scan report of 31/12/93 written by Dr Fraser describes 'IUGR, very little fluid around the baby and foetal growth that is 2 weeks and 2 days behind the expected measurements' for that stage of pregnancy. Or Fraser does not include the measurements of the baby that would have been standard observations in 1993. Namely there is no quoted measurement of abdominal circumference 9AC), biparietal diameter (BPD) and femur length (FL). Given that Mrs Ross' baby was described as being 'near to death' only six days after this can, I would expect that the scan findings would have been of a severe degree. There is no indication of this in the scan report. Dr Liddell has expressed the opinion that the Radiologist, Dr Fraser, did not have clinical responsibility in the management of the pregnancy of Mrs Ross in 1993 While I agree with this opinion, I would add that Mrs Ross advises that Dr Fraser did in fact express to her some concern regarding the growth of her baby and advised her to take extra rest. Six days later the welfare of the baby is so precarious that transfer by air to Wellington and emergency Caesarean section is required to save the life of her baby. Given these factors I consider Dr Fraser should have phoned Dr Gardiner on 31/12/04 to report the scan findings. These findings are likely to have been of severe /UGR although his report does not use the word 'severe'. Dr Fraser would be aware that a four day national holiday was about to commence and this would ead to delay in any management that Dr Gardiner might wish to institute in the light of the adverse scan findings of IUGR." Dr Tiller opined that for his reasons, as set out above, there had been medical error by Or Fraser on this occasion. Further on when considering Or Gardiner's role in the matter, he further stated: "Had Dr Fraser acted by phoning Dr Gardiner on 31/12/93 it is likely that Dr Gardiner would have taken action to seek further review of Mrs Ross at the Delivery Suite that day. It is my opinion that Dr Gardiner examined Mrs Ross with due care and skill on 30/12/93 and would have shown the same care and skill had Dr Fraser phoned on 31/12/93 to update him on the abnormal scan findings. Specialist review in Blenheim on 31/12/93 is likely to have led to earlier delivery." 1. Report dated 12 March 2005 from Dr J P Wilcox, General Medical and Obstetric Practitioner to Medical Misadventure Unit. Or Wilcox was asked to provide an opinion to the Medical Misadventure Unit from the perspective of an experienced General Practitioner with involvement in obstetrics. On matters pertaining to Dr Fraser's involvement, he stated as follows: "Despite being an extremely difficult time of the year to get supporting services such as blood tests or ultrasound scans, it does appear that Or Gardiner must have been able to arrange an urgent appointment with Dr Fraser, presumably at a private Radiology facility, for the following day. It is assumed he spent some time and effort arranging this. What happened following that can only be described as an unfortunate sequence of events 642.04 & 370.06 (pe) 11 I am unsure at what time of the day Mrs Ross had her scan. It would be my own experience that in a similar situation (especially at the Christmas-New Year break) that as an LMC I would have expected a phone call (or at the very least a fax) from a radiologist if they had been sufficiently concerned about a patient with clearly severe IUGR. Radiologists are medical specialists and are normally expected to communicate urgently and in person in situations where there is high risk to life. It is possible that on 31" December neither Or Gardiner nor Or Armstrong had been available and that Or Fraser may well have attempted to contact someone without success. There was no mention by Or Fraser of the possibility of reverse umbilical blood flow at that stage on 31" December, although this was seen on the following scan at Blenheim's Wairau Base Hospital a few days later. Reverse cord flow is usually recognised as a pre- terminal event, presumably relating to cardiogenic shock in the fetus. It was also of interest that Wellington Hospital noted evidence of cardiac enlargement and intra- abdominal fluid suggesting also a terminal fetal cardiogenic phase clearly validating the emergency caesarean section. The scan report was potentially helpful in other respects and certainly did give the impression of moderate to severe IUGR. A copy of the request form from Or Gardiner was not provided however it is assumed that it was on the basis of potential IUGR and thus some form of clinician-to-clinician report I feel would have been appropriate and 'best practice' at the time of the scan being performed. It is also noted that the ultrasound report was addressed only to Dr Gardiner who while being the referring clinician/obstetrician was not in fact the LMC. A copy does not appear to have been addressed to Or Armstrong. While Or Armstrong and Dr Gardiner work at the same practice, it would be assumed that their mail may well be kept entirely separate. Indeed mail deliveries at such a time of the year would be unpredictable in any case. It is assumed that Dr Fraser had a facsimile machine in 1993-94 and that he would on occasions send reports by facsimile when appropriately concerned Dr Gardiner was presumably leaving for his North Island family vacation himself around this stage, which Or Armstrong would I assume have been fully aware of. Dr Gardiner states that he was in the North Island by 3" January 1994 Accordingly it would have been my own practice at this stage, and assuming the significant concern documented on the antenatal record and the concern conveyed to Mrs Ross by both Dr Gardiner and the radiologist Or Fraser, to source the precise report for the ultrasound scan at the review appointment with Dr Armstrong on 3" January 1994 (documented in the record as 5" January), and despite the frustration of possibly not having the scan films delivered to the clinic at that time. " 5. Report from Dr Mark Leadbitter, Consultant Radiologist, dated 30 June 2005, to Medical Misadventure Unit. Or Leadbitter was requested by MMU "whether there was appropriate management of the abnormal obstetric scan of 31/12/93 by the radiologist, Dr Hamish Fraser." Or Leadbitter was provided with all relevant material including statements made by Dr Fraser, Mrs Ross, Or Gardiner and Dr Armstrong. Dr Leadbitter concluded as follows "The Radiologist Dr Fraser had significant concerns regarding Mrs Ross's abnormal antenatal ultrasound scan which he discussed with her. Dr Fraser states that it is and was his usual practise to communicate such significant findings 642.04 & 370.06 (PB) 12 "expeditiously by phone or fax to a referrer". However, the details of what exactly occurred on 31/12/93 have been lost with time. It is very difficult for radiology practices and laboratories to definitely establish that the reports they send have been received by the people who need to know the result. However, it is not acceptable for referrers to practice on the basis that no news is good news, a point repeatedly emphasised in the judgements of the Health and Disability Commissioner. If a GP is sufficiently concerned to send a patient for an urgent can on New Year's Eve, then there is considerable onus on them to find out the result. Furthermore, when the scan result was not able to be located at a consultation 5 days later, a simple call to any Radiology practice would produce a faxed report immediately. Clearly this was not done There is no suggestion of any "medical error" on the part of the radiologist Dr Fraser here." 6. Report of Dr Stuart Tiller, General Practitioner, dated 6 March 2006 to 2nd Reviewer. Dr Tiller was requested by the Reviewer to give an opinion from the perspective of an experienced New Zealand General Practitioner. He was asked to opine whether Dr Fraser had observed the standard of care to be expected. He gave his opinion as follows: ". . .it is my opinion that Dr Fraser, the radiologist who scanned Mrs Ross on 31/12/93, did not observe a standard of care and skill reasonably to be expected of a radiologist in the circumstances, for the following reasons. Dr Liddell has expressed the opinion that Dr Fraser did not have clinical responsibility in the management of the pregnancy of Mrs Ross in 1993. While ! agree that Dr Fraser did not have clinical responsibility, I note that Mrs Ross has advised that Or Fraser did in fact express to her some concern regarding the growth of her baby and advised her to take extra rest. Six days later the welfare of the baby was so pr s so precarious that transfer by air to Wellington, and emergency Caesarean section was required to save the life of the baby. Or Fraser in my opinion had professional responsibility as a consultant radiologist to alert Dr Gardiner and Or Armstrong to his ultrasound findings of significant IURGR, with urgency. It is my opinion that Dr Fraser should have ung Dr Gardiner on 31/12/03 to report the scan findings. The scan report of 31/12/93 written by Or Fraser described 'TUGR, very little fluid around the baby and foetal growth that is 2 weeks and 2 days behind the expected measurements' for that stage of pregnancy. Dr Fraser did not include the measurements of the baby that would have been standard observations in 1993. Namely, there is no quoted measurement of abdominal circumference (AC), biparietal diameter (BPD) and femur length (FL). Given that Mrs Ross' baby was described as being 'near to death' only six days after this scan, / would expect that the scan findings on 31/12/03 would have been of a 'severe degree. But there is no indication of this 'severity' in the typed scan report of Dr Fraser. It is my opinion that Dr Fraser would have been aware that a four day national holiday was about to commence and that this would lead to delay in any management that Or Gardiner might wish to institute in the light of the adverse scan findings of fURGR. I believe there has been a failure on this day, 31/12/93, by Dr Fraser to observe a standard of care and skill to be expected in the circumstances, 642.04 & 370.06 (pg) 13 in failing to act with urgency by telephoning Dr Gardiner with the ultrasound findings of significant IUGR." That is the extent of the relevant evidence relating to the issue of medical error as it applies to Dr Fraser, the Radiologist. [17] Turning now to the issue of medical error in relation to the acts or omissions of Dr Gardiner, the first statement made by Mrs Ross was as follows: 'My pregnancy had been progressing relatively normally until between Christmas 1993 and New Year 1994, when I was approximately 28 weeks pregnant. I began feeling generally unwell and developed a tummy bug which caused me to have diarrhoea for several days. Because I was concerned about how I was feeling, and any possible effect on my unborn baby, I decided to make an appointment to see my primary caregiver, Dr Armstrong. Or Armstrong was on holiday at the time so I was seen by the relieving doctor at the same medical practice, Dr Gardiner. Dr Gardiner was concerned that I was not as large as I should be given my pregnancy dates and decided to send me for a scan. He also gave me a "Count to Ten Chart" in order to monitor the baby's movements. He asked me at the time whether I was getting ten movements per day, to which I replied: "Yes, because of the hiccups". This was the end of the conversation as regards fetal movements. In fact, the hiccups were the only movements I was getting.' Subsequent statements made by Mrs Ross simply reaffirmed the above. [18] Dr Gardiner provided two reports to the Medical Misadventure Unit, his first report being dated 25 April 2004. Dr Gardiner stated, inter alia, as follows: "Firstly I have no record of seeing Mrs Ross as I was acting in a locum capacity for Dr A E Armstrong and I have no direct recollection of seeing her as many years have elapsed since our solitary meeting. However, / do believe I can piece together the events pertaining to me from the accounts of Mrs Ross, the details in the clinical record and in particular the page of the patient held medical record and movement chart. I also am aware of my obstetric practice at the time and likely reactions to the events presented. I saw Mrs Ross on the morning of Thursday, 30" of December 1993 at 28 weeks gestation (my 28 has been crossed out and a 30 inserted over it on her patient held record page) because she had a stomach bug type of illness and she was worried about the effect it may have on her pregnancy. From my note of that day I would have been concerned about her diastolic bl "diastolic blood pressure of 90 and her fundal height of 23 cm which gave me the impression of her uterine size being consistent with 26 weeks, i.e., 2 weeks behind her dates. Her weight was static which I would have noted but felt it to be acceptable in the circumstances as it had not increased on only one reading and all these observations were being made by a different doctor, sets of scales etc. The 2 ticks in the foetal movement column indicate that I enquired and was happy with Mrs Ross's description of her baby's movements at that time. 642.04 & 370.06 (pg) 14 Because of my concerns about Simon's growth velocity I arranged an urgent ultra sound scan and initiated a count to 10 kick chart with explanation (see the instruction page of the kick chart with my under linings appended by hand.) Mrs Ross had her scan done the following Friday 31" of December and from her own account of her interaction with Dr Fraser it is clear that he did not feel that the scan findings necessitated an urgent communication to either me or to Or A E Armstrong. With particular reference to your question about my responsibility for Mrs Ross's care ! was acting as a locum for Dr Armstrong until some time on Saturday, 1" of January, as / ary records of fishing in the North island on Monday, 3" during a family holiday. From 5.30 p.m. on the Friday that would have meant being on call for Ward One inpatient obstetrics only." [19] Dr Gardiner made a further statement on 24 October 2005, relevant portions of which are as follows: "I wish to comment on my ordering an "urgent" ultrasound scan for Mrs Ross on Thursday, 30" December 2003. As stated in my submission earlier because of my impression of reduced growth velocity and a borderline mid-trimester diastolic blood pressure I ordered the scan and initiated a kick-chart. The urgency is in regard to the timing of the procedure and no other inference should be drawn from it. The ultrasound and kick-chart and advice with it were ordered because of clinical impression rather than a firm diagnosis that I had formed on the 30". With the upcoming ould have been important to institute these measures promptly as there would be no rationale to wait before starting the process of increased monitoring. One could also consider the kick-chart as being started urgently too. I enclose a copy of Dr Fraser's referral forms which are much as they were in 1993. There is a tick box if the referring doctor wishes an immediate phone result. if on the basis of the clinical impression I had formed I wanted the report sent to me, regardless of the result, I would have ticked the box and Dr Fraser would have conte contacted me Likewise, I would not have discussed Mrs Ross's case with Dr Armstrong at handover on the basis of my history and examination of 30" December. I would have needed clinical findings of a stronger predictive value of imminent trouble than were there at the time. One needs to note that a clinical foetal date/growth discrepancy of 2 weeks at 28 to 34 weeks gestation is not uncommon and Simon's foetal heart auscultation and Mrs Ross's description of Simon's movements were all reassuring.' [20] In relation to the kick-chart introduced by Dr Gardiner, Dr Liddell commented as follows: "The ultrasound scan performed on 31" December 1993 does show evidence of reduced liquor and intrauterine growth retardation. This would be an indication for closer fetal monitoring and assessment. In 1994 the use of kick charts was a common method of antenatal monitoring of fetal well being. The movements recorded over the next days are normal. After having had no movements for 24 hours, as per the instructions on the antenatal fetal movement chart, Mrs Ross did present for assessment. An abnormal CTG was obtained and subsequently a pelvic ultrasound, repeat antenatal CTG and specialist opinion was sought. Mrs Ross was transferred urgently and delivered expeditiously. I cannot conclude on the basis of the evidence that I have that there is evidence of medical error in this obstetric management. 642.04 & 370.06 (pg) 15 It was Dr Liddell's opinion that there was no medical error on the part of Dr Gardiner. 7. Report from Dr Stuart Tiller dated 7 November 2004 to appellant's counsel. In addition to commenting on the actions of Dr Fraser, Dr Tiller also gave his opinion on the actions of Dr Gardiner. He gave his opinion as follows: 'Given that the clinical diagnosis of IUGR made by Dr Gardiner is made for the first time on 30/12/04, and in the absence of any communication from Dr Fraser who has discovered a degree of (UGR on the scan of 31/12/04 that may be severe, I believe it is reasonable for Dr Gardiner to arrange a follow-up appointment with Dr Armstrong in 4-5 days time, after the New Year holiday break. It is an unfortunate omission of Dr Gardiner not to leave a hand-over message for Dr Armstrong but it is my opinion that the medical notes made by Dr Gardiner of IUGR (correctly) would alert Dr Armstrong of this new development. I am of the opinion that Dr Gardiner did observe a standard of care and skill to be expected of a GP in 1993, when he saw Mrs Ross on 30/12/93. 8. Report from Dr J B Wilcox, dated 12 March 2005 to Medical Misadventure Unit. Dr Wilcox's report and opinion as it pertained to Dr Gardiner was as follows: "Dr Gardiner appears to have made an excellent clinical review/assessment of Mrs Ross. He was clearly concerned about the fetal growth noting the fundal height of 23 cm, which he felt was consistent with just 25 weeks size or less, and being at a time when Mrs Ross was 28-30 weeks. He gave her a kick chart (which while not so intensively utilised currently was still an important tool at that time for detecting fetal morbidity at an early stage) and spent some time trying to explain how best to utilise the process of "Count to Ten" fetal movement recording with which Mrs Ross was not familiar. Despite being an extremely difficult time of the year to get supporting services such as blood tests or ultrasound scans, it does appear that Dr Gardiner must have been able to arrange an urgent appointment with Or Fraser, presumably at a private Radiology facility, for the following day. It is assumed he spent some time and effort arranging this." 9. Report of Dr Stuart Tiller dated 6 March 2006 to Reviewer. In relation to the acts of Dr Gardiner, Dr Tiller stated as follows: Dr Liddell reported, regarding the examination on 9/12/93, that all clinical findings were normal. Dr Gardiner correctly found on 30/12/93 that the baby was now small for dates, diastolic blood pressure was raised for the first time, and there had been no maternal weight gain. The patient, Mrs Ross, was currently ill with gastroenteritis, at that time, and Or Gardiner might have fairly assumed that the failure to gain weight on that first occasion related to the immediate gastric illness. He nonetheless made a correct clinical diagnosis of the onset of IUGR and ordered a scan and advised Mrs Ross regarding the baby movement chart. In particular, he was mindful of the approaching holiday period and offered advice regarding emergency care if foetal movements were significantly reduced in the following days. Or Gardiner underlined the advice on the movement chart for emergency contact to the Delivery Suite if less than 10 movements were felt on any day. (Mrs Ross acted on this appropriate advice on the 6/1/94 when she had felt no movements since the previous day). 642.04 & 370.06 (pg) 16 Given that the clinical diagnosis of clinical IUGR was made for the first time on 30/12/04, and in the absence of any communication from Or Fraser the next day when he discovered a degree of (UGR on the scan on 31/12/04 that may have been severe, / believe it was reasonable for Or Gardiner to arrange a follow-up appointment with Dr Armstrong, the usual GP, in 4-5 days time, after the New Year holiday break. It was an unfortunate omission of Dr Gardiner not to leave a hand-over message for Dr Armstrong but it is my opinion that the medical notes made by Or Gardiner documenting the onset of , should have alerted Dr Armstrong to this new development. Dr Armstrong was due to see Mrs Ross in 4-5 days time after the New Year holiday period at the time of the follow-up appointment made by Dr Gardiner. I am of the opinion that Or Gardiner did observe a standard of care and skill to be expected of a GP in 1993, when he saw Mrs Ross on 30/12/93. Although Dr Gardiner did not write a specific hand-over note to Dr Armstrong he had ensured that a further appointment was made and he had detailed his clinical findings of new onset of IUGR in the maternity records. These were available to Dr Armstrong at the next appointment." [21] The foregoing constitutes the evidence and opinions which the Court has received in relation to the issue of medical error on the part of Dr Fraser and Dr Gardiner respectively. The next matter which was placed in issue by the terms of the respondent's decision and as submitted to the Court by counsel for the respondent, is the question of the identification of a personal injury said to have been suffered as a consequence of the claimed medical error. Further, the presence or absence of the necessary causative link. Personal Injury and Causative Link [22] The Court received evidence both of fact and opinion in relation to these issues. In his written submissions Mr Hunt, for the respondent, identified the issues to be considered and which need determination, as follows: 1. Has the appellant suffered personal injury and, if so, what is that personal injury? 2. If the appellant has suffered personal injury, what is the alleged cause of that personal injury, e.g., was it intrauterine growth retardation or a pre- existing infection? 3. If the mechanism of injury can be identified, then has this been caused by treatment given by any registered health professional? 4. Was the treatment given a result of medical error on the part of any registered health professional (and if so, who?). 5. If personal injury is found to have been a result of intrauterine growth retardation - a pathological and non accident related condition - would earlier intervention have affected this? 642.04 & 370.06 (pg) 17 [23] The clearest statement of the nature of injuries or medical conditions is that given by Dr Hilary Liddell in her report of 14 July 2003. She recorded the unfolding of events from 31 December 1993 onwards as follows: "Mrs Ross presented with some concerns of feeling unwell and had a pelvic ultrasound performed on 31" December 1993. There is a copy of this scan in the records forwarded to me. The report comments that there is very little fluid around the baby and that the baby is 2 weeks, 2 days behind the expected measurements with a moderately thin placenta. This is consistent with intrauterine growth retardation. Mrs Ross saw her general practitioner subsequent to this scan on approximately the 3" of January. There is no written record of this antenatal visit available, however Mrs Ross's recollection is that her doctor had not seen the scan. Mrs Ross started a count to 10 baby movement chart on 30" December. There are 6 days of movements recorded with 10 movements counted on each of the 6 days. The last day or recording was Tuesday 4" January 1994. There are 10 movements recorded by 7 p.m. Mrs Ross comments that on Wednesday 5" January she had no movements at all and on Thursday, 6" January she admitted herself to the Maternity Ward to Wairau Hospital. The history taken by the midwife was that there had been no fetal movements for 24 hours. A palpation showed that the size of the fetus was approximately 26 weeks size and the gestation was recorded as 31 weeks. The fetal heart rate was recorded as being 146-150 and unreactive. Dr Armstrong was notified and a repeat CTG in 2 hours was ordered and a specialist opinion was requested. Dr Crampton, the specialist, requested an ultrasound for estimated fetal growth. The repeat ultrasound showed fetal ascites and queried a cardiac abnormality and transfer to Wellington Hospital was advised. Dexamethasone was given and a repeat CIG was organised. This showed extreme loss of beat to beat with unprovoked deceleration. Urgent transfer to Wellington Hospital by helicopter was performed at 12.30. An emergency caesarean arean section was performed at Wellington Hospital. The gestation of the pregnancy had subsequently been recorded as 29 weeks. Simon weighed 1080 gms. His head circumference was on the 50" percentile as was his length but his weight was on the 10" percentile. His apgars were 4 and 8 and he was in poor condition at birth with no respiratory effort a slow heart rate, reduced tone and reduced response. His placenta was noted to be small and infarcted. He suffered from initial hypoglycaemia. There was no structural abnormality of his heart and his enlarged heart before birth appeared to be related to poor oxygenation of his heart muscles. His cord blood gas showed a pH of 7 and a base excess of minus 15 consistent with antepartum anoxia. An ultrasound of his head done at 1 week demonstrated the presence of bilateral intraventricular bleeds with grade /V haemorrhage on the left and a grade Ill on the right. A repeat ultrasound scan on day 14 showed he had developed periventricular Leucomalacia consistent with him having suffered some white matter brain death. He has subsequently developed microcephaly and spastic quadraplegia. [24] This train of events has been commented upon by several specialists, including Dr Liddell herself. She commented in her two reports as follows: Report dated 14 July 2003 "I believe in this case it is impossible to say whether earlier delivery would have been appropriate or would have prevented these injuries. Mrs Ross was assessed and delivered promptly after falling to have fetal movements the previous 24 hours and the day prior to this she had a normal number of fetal movements. The cause of the baby's 642.04 & 370.06 (pg) 18 poor condition at birth was placental insufficiency which is a naturally occurring condition In this pregnancy, unrelated to medical management. It was a longstanding chronic condition with evidence of nce of chronically poor placental function was present at least one week prior to delivery and therefore had been present for a longer period of time. I cannot conclude on the balance of probabilities that the lack of earlier delivery has been the major cause of this baby's injuries or that earlier delivery was clearly indicated on the basis of the antenatal signs and symptoms prior to the 6" January when appropriate and rapid action was taken." Report dated 21 January 2004 'It is speculative as to whether if this CIG and specialist referral was done on 3" January or possibly the 5" January (it is still unclear as to when this visit took place) and an earlier delivery undertaken, whether this would have prevented some of the serious neurological damage that Simon has sustained. However, it is the view of the Paediatricians who have cared for Simon that earlier delivery would have prevented some of his neurological sequelae. Therefore I think on the balance of probability it is my conclusion that there were adequate signs in the antenatal history and examination to indicate concern about this baby that should have lead to more intensive monitoring and earlier delivery." [25] Dr Stanley, Paediatrician, gave his opinion as follows: "Unfortunately, his first ultrasound scan was done at 1 week of age and one could therefore not be certain if this injury to his brain occurred prior to rather than after birth but it would be highly likely that his poor growth prior to delivery would have been at partly responsible for his poor outcome. The majority of 29 week gestation babies born even in 1994 would not have expected this sort of outcome. . . . It is very likely that his poor growth in the last week or so before delivery played a significant role in his subsequent brain injury. I would certainly be of the opinion that earlier referral for consideration of delivery should have taken place if the information provided by Mrs Ross is in fact accurate. However, as mentioned I believe the decision as to when to deliver a premature baby is an obstetric one. My role would be to advise an obstetrician as to whether a baby is likely to do reasonably well at this gestation if they are delivered early. in 1994 we would strongly recommend that a baby that was in difficulty at 29 weeks gestation be delivered forthwith since our results then were very good with a high chance of survival without known long term morbidity." [26] Dr Barry, Paediatrician, was of a similar opinion and he stated as such. "I agree with Or Stanley's nley's view that had Mrs Ross been transferred to Wellington around the time of the scan on New Year's Eve and delivered promptly, the likelihood is that there would have been a much better outcome for Simon.' In his second report, after receiving further information, Dr Barry remained of the same opinion when he stated: "I think it is probable that Simon would have done better had he been delivered a week or so before he was." 642.04 & 370.06 (pg) 19 [27] In a report from Dr A K Wilson, described as a Medical Misadventure Assessor, and whom the Court understands to be an experienced General Practitioner, he gave his opinion as follows: While prenatal problems, such as placental insufficiency caused the intrauterine growth retardation, I consider that if the diagnosis had been made at an earlier date then the outcome for the child would have been better." [28] The foregoing represents the evidence which was presented to the Court in relation to the issue of personal injury and causative link as it pertained to the category of medical misadventure being medical error. Medical Mishap [29] I now set out the evidence which the Court received in relation to the issue of medical mishap. The principal evidence on the factors of rarity and severity required for medical mishap is that given by Dr Stanley and in his report he said that he had carried out a review of the incidence of intraventricular haemorrhage in babies with a gestation of 28-32 weeks for a period of five years between 1993 and 1998. Dr Stanley's advice was that when considering Grade IV haemorrhages, they being the ones with the highest likelihood of causing cerebral palsy, he advised that the risk of sustaining a Grade IV haemorrhage was 0.09% of babies with those gestation periods. Dr Liddell agrees with Dr Stanley's opinion, as does Dr Barry. Dr Barry noted that it was a brain bleed of the severity of Grade IV, which was rare, being less than 1%. [30] Dr Stanley made two further observations which are relevant to the issue of medical mishap when he stated as follows: Simon's brain injury is not an uncommon scenario in very preterm infants (23-26 weeks gestation). It is still possible that Simon may have sustained this form of injury without his previous growth retardation, in particular had he been unstable in the first few days of life (he was not). He did receive some corticosteroids (through his mother) prior to delivery which we know reduces the risk of this form of injury but it does still occur in this setting. I have reviewed our rates of IVH here in Wellington in babies with a gestation of 28-32 weeks from 1993 to 1998, a period which includes the time Simon was born In 1993 there were 80 babies scanned with one grade 4 and no grade 3 haemorrhages. (1.25%). In 1994 there were 68 babies scanned with one grade 3 and no other (apart from Simon) grade 4 haemorrhages. (1.5%). 642.04 & 370.06 (pg) 20 In 1996 of 57 babies scanned none had a haemorrhage of more than grade 2 (0.0%) In 1997 of 77 babies scanned there were 4 grade 3 haemorrhages and 2 grade 4 (8%). In 1998 of 71 babies scanned there were 2 grade 3 and no grade 4 haemorrhages (3%). If we combine those years and confine ourselves to grade 4 haemorrhages (the ones with a high likelihood of cerebral palsy) this represents a risk of 3/322 or 0.09% of sustaining a grade 4 haemorrhage at these gestations, It is very likely that his poor growth in the last week or so before delivery played a significant role in his subsequent brain injury." [31} Finally, Dr Barry addressed the issue of medical mishap when he stated as follows: ". . . If the expert obstetric opinion is that Dr Armstrong did "observe a standard of care and skill reasonably to be expected in the circumstances", then a case could be made for medical mishap. In the circumstances I am thinking of, a decision to move towards earlier delivery based on the ultrasound examination of 31 December would, on the balance of probabilities, have made Simon's outcome better. However, if it is judged that the decision not to go ahead on the basis of the ultrasound on 31 December is reasonable practice, then one could argue that personal injury resulted from treatment (or non-treatment) properly given The probability of the non-treatment causing a grade 4 haemorrhage is rare using Dr Stanley's figures from the Wellington Regional Neonatal Unit The injury is certainly severe in that it has resulted in hospitalisation for fourteen days or more and there has been a significant restriction or lack of ability." [32] In his report to the Medical Misadventure Unit, Dr J B Wilcox discussed issues touching on the criteria of mishap when he stated as follows: 'It is my opinion that the illness with intestinal upset suffered by Mrs Ross between Christmas and New Year was highly significant and presumably was associated with a chorio-amnionitis, probable overwhelming foetal infection and cardiogenitic collapse possibly in the presence of added severe intrauterine growth retardation. Clearly the maternal and presumably the foetal illness had started somewhere around 27" December and I believe had already been predetermined to create a rare and severe complication of her pregnancy. Ill informed, out of date and non evidence based comments from other health professionals suggesting that delivery 2 days earlier "would have made a big difference" are extremely unfortunate and tend to go against current research based on MRI assisted detailed outcome studies. We do not seem to have been provided with records from Wellington Womens Hospital relating to the caesarean birth, immediate neonatal records or to any pathology studies (for example placenta histology, placental blood serology, culture and PCR studies etc) all of which would have been helpful in assessing a more precise cause of the acute deterioration of the foetal welfare. Having said that it is fairly clear that Simon would not have survived in utero for more than another 24-48 hours." 642.04 & 370.06 (pg) 21 [33] Further on Or Wilcox considered the issue of physical injury when he stated as follows: "Intraventricular haemorrhage is an uncommon complication of foetal compromise and is currently felt to be unrelated to the actual birthing process in most cases and thus strictly speaking is not an "injury". Grade /V haemorrhage is especially uncommon and occurs in severely compromised foetus, presumably relating to anoxia possibly secondary to ntal insufficiency and perhaps proceeding infection such as chorio-amnionitis. A pre-existing infection is certainly likely to have been present and clearly /UGR was also evident in this case. Severe IUGR with retrograde cord blood flow is a known very high risk marker for serious foetal compromise. I believe that earlier delivery may have assisted in the reduction of the extent of anoxic damage to the foetus, although the extent of salvage is speculative." Submissions [34] Mr Fairclough for the appellant made the following submissions: There was medical error on the part of Dr Fraser in that the only best practice option to him on that date, 31 December, prior to a four day statutory holiday shutdown, was to communicate the results of the ultrasound personally to the referring GP, so that further action could be commence Personal communication of the results of the scan would likely have led to an earlier birth or at least reference to obstetric intervention at the Wairau Hospital The body of opinion confirms that an earlier delivery would have considerably improved Simon's chances. . The failure of Dr Fraser to communicate the result of the scan effectively left Mrs Ross without care until her GP's surgery reopened on 5 January 1994. Counsel contends that the opinion of Dr Tiller on this aspect is to be preferred The allegation of medical error against Dr Gardiner is made on the basis that if it be found that Dr Fraser did communicate the result of the scan then Dr Gardiner's failure to act and secure specialist intervention on 31 December was medical error. The injury was suffered by the appellant in the critical period between 31 December 1993 and 5 January 1994 . The treatment for the diagnosed IUGR was early delivery. 642.04 & 370.06 (pg) 22 . The placental insufficiency and infarction entailed in Simon's physical injury occurred primarily during the week's delay. In those circumstances Simon's injury was the result of treatment properly given. [35] Mr Hunt for the respondent submitted as follows: The placental insufficiency cannot be a personal injury as it is a pathological condition. That condition occurred between 9 and 30 December 1993 The personal injury suffered by Simon was the IVH but there is no evidence that delay in delivery was causative of that event. There is no evidence on which to conclude that there was a failure on the part of Or Fraser to act appropriately in the light of the scan result he obtained. The evidence of Or Leadbitter in relation to the actions of Or Fraser is to be preferred to that of Dr Tiller as Or Leadbitter is a specialist radiologist. No evidence has been introduced which is contrary to the opinions upon which the respondent acted that there was no medical error in relation to the actions of Dr Gardiner. The personal injury suffered by Simon cannot be shown as being a consequence of medical mishap, it not being able to be identified with treatment, but rather as a consequence of a pathological condition. The opinion of Dr Stanley is on point in relation to the issue of medical mishap The injury suffered by Simon was not caused by any medical error on the part of a registered health professional, nor was it caused as a consequence of treatment by a registered health professional properly given. [36] Mr James, Counsel for Dr Fraser and Dr Gardiner, supported the submissions made by Mr Hunt, but in addition asked the Court to note that the urgency with which Dr Gardiner sought the ultrasound scan was not because of the appellant's medical condition but rather because of the limited time available before the long holiday period. He further submitted: It cannot be established to any degree of probability that Dr Fraser did not communicate the results of the scan as he stated he would have done in accordance with his usual practice. 642.04 & 370.06 (pg) 23 . Dr Fraser's skill and speciality is that of radiology and he would not have discussed obstetric matters with Mrs Ross to the extent that she has stated in her various statements. There is no evidence of any medical error on the part of Dr Gardiner. DECISION [37] A claim for cover for personal injury caused by medical misadventure was lodged on Simon Ross's behalf in September 2002. That claim contended that the events giving rise to the claim had occurred in early January 1994. [38] As a consequence of those two time lines, Section 360 of the transitional provisions of the Injury Prevention, Rehabilitation & Compensation Act 2001 apply, and it is the case that the appellant would only be entitled to cover under that Act if he could also establish that he had an entitlement to cover under the Act that was in force in January 1994, namely the Accident Rehabilitation & Compensation Insurance Act 1992. (39] For the purposes of this appeal the only distinction between those two statutes which needs to be borne in mind, is that a claim for medical error or medical mishap under the 1992 Act could only be had if the necessary statutory criteria could be sheeted home to treatment by a health professional, whereas under the 2001 Act, as it was in force at the time this claim was lodged, provided for medical error to include the failure of an organisation to observe a standard of care and skill reasonably to be expected in the circumstances. [40] Two claims under the then prevailing medical misadventure provisions of the 2001 Act were brought by the appellant, alleging medical error on the part of three health professionals, namely Doctors Armstrong, Fraser and Gardiner, and secondly medical mishap contending that the personal injuries suffered were as a consequence of treatment by health professionals properly given and that the injury suffered is both rare and severe, as those terms are defined in the Act. [41] As earlier noted the respondent's decision of 8 July 2005, confirmed by the review decision of 25 August 2006, determined that the actions of Dr Armstrong on 5 January 1994 did fall below the standard of care reasonably to be expected in the circumstances, but that his medical error had not caused any personal injury. 642.04 & 370.06 (pg) 24 Therefore any claim for cover by the appellant against Dr Armstrong could not be sheeted home. That decision has not been contested by the appellant and can therefore be put to one side. [42] The two registered health professionals against whom claims of medical error were made are Dr G Gardiner, Dr Armstrong's locum, and Dr H Fraser, a practising radiologist. [43] Although I acknowledge that Dr Gardiner was placed in the frame as it were by Mr Fairclough, I discern that it was done so without much vigour, and in effect any allegation against Dr Gardiner would only have traction if there were to have been evidence of a communication received by him from Dr Fraser on 31 December 1993 in relation to the result of the ultrasound scan and it were to be found that any action he may have done or omitted to do thereafter was found to be action falling below the standard of care required. [44] No expert evidence was presented either to the Medical Misadventure Unit, the Reviewer, or to this Court which suggested that Dr Gardiner was in any way guilty of medical error in the manner in which he attended to Mrs Ross on 30" December, or the actions and notes that he took at the time were not appropriate medical practice in the circumstances. [45] As noted in the Medical Misadventure Report to the claimant issued in July 2005, shortly before the respondent made its primary decision, the Panel noted as follows: "There is a consensus between all independent advisors in general practice that Dr Gardiner did observe a reasonable standard of skill and care during his consultation on 30 December 1993." [46] In those circumstances I find that there is in effect no case for Dr Gardiner to answer and a claim of medical error by him simply cannot be sustained. [47] The claim against Dr Fraser is that he ought to have assessed that the ultrasound scan findings were such that he should have personally spoken to the referring GP to advise him of the results of that scan. It is further contended that because it was 31 December and a long holiday break was about to begin, it was doubly imperative to ensure that the result of the scan was made known to the referring GP on that day. [48] It must be remembered that the events occurred on 31 December 1993 but that it was not until the beginning of 2005 that Dr Fraser was made aware of allegations 642.04 & 370.06 (pg) 25 made against him. Not unnaturally he has candidly stated that he has no direct recollection of Mrs Ross or any of the events surrounding the taking of the scan or its aftermath. [49] All that Dr Fraser can state is what his usual practice is and was and that in the circumstances of the particular scan of Mrs Ross either he or his nurse would have communicated with the referring G.P. either by phone or fax with details of that scan. (50] Regrettably, all records relating to any forwarding of the radiology report to Dr Armstrong's practice are destroyed, as it would seem are record from Dr Armstrong's end, save for it seeming to be the case that on 5 January 1994 Dr Armstrong was aware of the fact of a radiology report even though he could not at the time of his attendance on Mrs Ross, put his hands on it. [51] It is equally the case that Dr Gardiner had no recollection of the events or of any discussion with Dr Fraser on 31 December and there is therefore, I find, no positive evidence, or even evidence on which an inference can be drawn, that Dr Fraser did not communicate in some form with Dr Armstrong's practice on the afternoon of 31 December 1993. [52] Whilst it is the case that Dr Tiller, a General Practitioner, gave an opinion that Dr Fraser had failed to observe a standard of care and skill to be expected in the circumstances, that opinion was given on the basis that Dr Fraser did not phone or communicate with Dr Armstrong's office on the 31" December. That I find can only be a matter of complete conjecture on the part of Or Tiller. Furthermore, he has opined that the scan findings would have been of a severe degree even though there was no mention of severity in the report, and it is on the basis of this contended severity that Dr Fraser should have taken steps of personal communication. For these reasons I reject the opinion of Dr Tiller. [53] To balance the Tiller opinion there is the opinion of Dr Leadbitter, Consultant Radiologist, a person whose opinion I find is more relevant to the actions of a radiologist than that of a general practitioner. The opinion expressed by Dr Leadbitter is set out earlier in this Judgment and I accept that opinion. In the circumstances I find that no medical error can attach to any of the actions of Dr Fraser. 642.04 & 370.06 (pg) 26 [54] In those circumstances, I find that a claim for cover for personal injury caused by medical misadventure, being medical error, cannot be sustained and the respondent and the Reviewer were correct to make decisions to that effect [55] I turn now to the question of medical mishap. Section 34 of the 2001 Act defines medical mishap as being an adverse consequence of treatment given to a person, is given properly and is given by or at the direction of a registered health professional, and that the adverse consequence is both severe and rare. [56] Section 34 requires there to be a causative link between the adverse consequence and the treatment by or at the direction of a registered health professional. [57] The decision made by the respondent was to the effect that the appellant's problems were highly likely to be due to prenatal difficulties, particularly placental insufficiency which was a naturally occurring condition of pregnancy, and therefore Simon's condition could not be linked to any medical treatment. Thus it was the absence of a causative link between treatment and the adverse consequence complained of, that was the reason for declining the claim. [58] In this case there were a number of health professionals engaged in the treatment of the appellant both antenatal and postnatal. The antenatal treaters being Dr Armstrong, Dr Gardiner and Dr Fraser, and the postnatal treaters being the staff of the antenatal unit at Wellington Hospital. [59] For the purposes of the appellant's claim I find that there is no distinction in law to be made between the treatment of the appellant and the treatment of his mother during the period of her pregnancy. Both the foetus and the mother were being treated. [60] The evidence is that Dr Armstrong was the Lead Maternity Carer and he was the overseer of Mrs Ross's pregnancy, and it is to be noted that it was her first pregnancy. The evidence is that Mrs Ross had a number of consultations with Dr Armstrong prior to the consultation on 30 December 1993. Dr Armstrong was monitoring her progress. Her chart in that regard has been produced and it shows that Mrs Ross had her first attendance on Dr Armstrong as her LMC at Week 12. There followed further consultations at Weeks 17, 21,27, 30 and 31, Week 30 being the consultation on 30 December 1993 and Week 31 being the consultation on 5 January 1994. 642.04 & 370.06 (pg) 27 [61] In the course of various health professionals giving opinion evidence about the actions of Dr Armstrong, it was variously thought that Mrs Ross' attendance on him might have been on the 3", the 4, or the 5" of January, Mrs Ross herself being unsure. In order that some finality can be put on this matter I find that the conclusions of the Medical Misadventure Advisory Panel, given in its report of 29 April 2005, to be the correct finding from the information which was available. [62] This finding is relevant to the issues of treatment by Dr Armstrong. The reasoning of the Panel was stated by it as follows: "The Panel has before it Mrs Ross' "will say statement" for the purposes of the Review hearing. In this statement, she states that. ..I made an appointment to see Or Armstrong as soon as he returned to his surgery which I believe was on 5 January 1994. The delay was due to the New Year holiday period.' The Panel also has before it the kick chart which was given to Mrs Ross by Dr Gardiner at her visit of 30 January 1993. The kick chart begins on 30 January, on the Thursday, which is consistent with the dates both recorded by Dr Gardiner rand recalled by Mrs Ross. There are entries for the ensuing five days. For Monday, which the Panel notes was 3 January, and a public holiday, Mrs Ross has entered an 'x' between 1 and 2 p.m., indicating she had counted 10 foetal movements on that day up to that time. She has also recorded an entry for Tuesday 4 January with an 'x' being entered between 6 and 7 p.m., again indicating the time Mrs Ross had counted 10 foetal movements. There is no entry recorded for Wednesday, 5 January. This is consistent with her will say statement at paragraph 13 in which she states: 'On that day, 5 January 1994, I felt no hiccoughs'. The day to which Mrs Ross is referring is the day she visited Dr Armstrong and told him of her concerns around the lack of foetal movement and the only movement she was getting was the baby's hiccoughs The Panel is of the view that the balance of probabilities is to the effect that the consultation was in fact on 5 January. That conclusion is consistent with the recorded entry made by Dr Armstrong and indeed his reactions when he was speaking with Mrs Ross at the consultation itself. The Panel notes also some uncertainty on the part of Mrs Ross as to whether it could be the 3 , and in light of all those factors it concludes the consultation was on 5 January 1994." [63] The reason that Mrs Ross consulted Dr Armstrong on 5 January 1994 was not because of anything that may have been in any scan but rather due to the fact that she had not experienced any foetal movements in the preceding 24 hours. This was her great concern. [64] Whilst there is a finding which this Court cannot interfere with that has determined that the acts or omissions of Or Armstrong on 5" January 1994 were not causative of any injury, that does not mean that events or circumstances which may 642.04 & 370.06 (pg) 28 have occurred in the days preceding 5 January had not caused or contributed to injury subsequently suffered by the appellant. [65] The rationale behind the respondent's decision to decline cover for medical mishap was that Simon's injury had arisen from a pathological condition associated with intrauterine growth retardation, and as such was not caused by treatment given by a registered health professional. [66] This reasoning I find is too simplistic and does not take account of the fact that a registered health professional would be required to treat a pathological condition which, if left untreated would be more likely to cause injury by being made worse or bringing about an untoward event. [67] The evidence is that the pathological condition was treated by Dr Gardiner by way of obtaining an ultrasound scan and for the implementing of a kick chart, a procedure which independent specialists determined was the correct course to take at the time. [68] The chart of Mrs Ross has been produced and it gives detailed instructions on how to note the movements, stating that the chart starts at 9 o'clock in the morning. It then states under the heading Important - "if you feel less than 10 movements between 9 o'clock in the morning and 9 o'clock in the evening for two days in a row, or if you feel no movements between 9 o'clock in the morning and 7 o'clock in the evening for one day, ring Delivery Suite or your actual maternity hospital and tell the duty midwife." [69] This is precisely what Mrs Ross did in effect, although her first contact was with Dr Armstrong and it was only subsequently when she became more concerned that she contacted the hospital. This course of action was part of her treatment. [70] I find as a matter of fact and law that during the period of Mrs Ross's pregnancy from Week 12 she was at all times under treatment from her Lead Maternity Carer or his delegate and that whilst it is the case that the particular circumstances of timing were against Mrs Ross, the fact of the matter is that she was in need of treatment from her LMC prior to the 5" January [71] In the context of Mrs Ross being in treatment I refer to the decision of His Honour Justice Anderson in ACC v R W (Auckland High Court, AP 60 -SW 99 where the High 642.04 & 370.06 (PE) 29 Court confirmed the District Court decision that treatment for the purposes of the Act does not only include overt acts of intervention by way of care [72] The specialist evidence is of the opinion that if Simon had been delivered earlier, that is received treatment earlier, a far better outcome was likely. The evidence is that at the time of delivery he was near death and would not have survived a further 24 to 48 hours in the womb (73] The condition of Simon at the time of delivery and immediately subsequent identifies a multitude of conditions and which Dr Stanley contends would have been the major cause of the intraventricular haemorrhagic. [74] Dr Stanley has further identified that it was the growth retardation being allowed to continue, by an unfortunate set of circumstances through timing over the holiday break for longer than ought to have been the case that brought up the Grade IV haemorrhagic, with it nevertheless being a rare and severe consequence of babies delivered at a gestation period of between 28 and 32 weeks. [75] Simon, while under treatment for the period of his gestation, was delivered prematurely because of circumstances. That delivery nevertheless brought about a rare and severe adverse consequence which although it may have had its genesis in the previous growth retardation during the period of 9 to 30 December 1993 nevertheless clearly became acute in the first few days of January 1994 when an absence of foetal movement was experienced and a near death infant was born at 31 weeks. [76] In terms of the provisions of Section 34 I find that there is a causal nexus between the personal injury of the IVH and its sequelae and the treatment which the appellant as a foetus and at the point of birth received. As was noted by Or Stanley, "in 1994 we would strongly recommend that a baby that was in difficulty at 29 weeks gestation be delivered forthwith since our results then were very good with a high chance of survival without known long term morbidity." 77] I find that the absence of delivery forthwith at 29 weeks when there was good evidence of difficulty was a circumstance which was part and parcel of the treatment of Mrs Ross and the appellant and the consequent injuries which the appellant suffered I 642.04 & 370.06 (pg) 30 find, are those for which he is entitled to cover under Section 34 of the Act as it then was. (78] Accordingly, I find and rule that the respondent's decision of 8 July 2005 that the appellant did not qualify for cover by reason of medical error to be correct, but that its decision of 23 July 2003, confirmed as it was on review dated 13 December 2004, that the appellant did not qualify for cover for personal injury by reason of medical mishap is wrong and is hereby quashed. 79) The consequence of my decision is that the appellant is entitled to cover under the Act for the personal injury of intraventricular haemorrhagic and its sequelae. (80] The appellant being successful I allow costs of $3,000 together with qualifying disbursements, including the cost of any medical reports which may not previously have been the subject of an award of disbursements. [81] In the circumstances I make no order for costs in favour of any other party. DATED at AUCKLAND this 21 % day of December 2007 M J Beattie District Court Judge 642.04 & 370.06 (pg)