Colley v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 3/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN SUSAN GRACE COLLEY (AI 230/02) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HUNTLY on 5 November 2002 APPEARANCES Mrs A de Jong, advocate for appellant. Mr D M Kerr, counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent’s decision of 24 January 2002 to decline to accept the appellant’s claim for cover for personal injury by medical misadventure. [2] In this case it is the appellant’s contention that she suffered personal injury by medical misadventure being medical error in that her then treating GP, Dr J White, failed to obtain her informed consent to the prescription to her of the family of antidepressant drugs known as benzodiazepines. Associated with the allegation of error is the contention that the appellant was not properly advised of the potential side effects from the taking of those drugs for any greater period than 6 weeks. [3] The appellant’s allegations of medical error relate to the acts and omissions of her GP, Dr White, during the years of 1989 and 1998 when he was her treating GP. It is to be noted that the appellant did not lodge her claim for cover until June 2001. In her claim she contended that the medical error of Dr White had caused her to suffer 230.02 (pg) 2 stomach pain and discomfort, constant fatigue, headaches, memory loss, severe anxiety, bouts of depression and panic, severe muscle cramps and constant flu like symptoms. The appellant contended that these conditions commenced after she attempted to withdraw from the drugs which she had previously been prescribed for her various medical conditions. [4] At the outset it should be noted that the appellant is a registered nurse and registered midwife as well as having special training in pediatrics and during the relevant period was working in the Special Care Baby Unit at Waikato Hospital. [5] Following the lodging of her claim the matter was referred to the respondent’s Medical Misadventure Unit (MMU) who sought particulars and comment from Dr White and other medical persons with whom the appellant had been involved subsequent to her ceasing to be treated by Dr White. [6] In his first report to the Medical Misadventure Unit, Dr White made the following points: • He commenced treating the appellant as a patient in March 1989 at which time she was diagnosed as having moderately severe chronic fatigue syndrome. This manifested itself as severe fatigue, sleep disturbance and poor memory. • The appellant’s condition caused her to worry about her ability to cope with her work. • The drug treatment he prescribed was antidepressant drugs and benzodiazepines to rectify her sleep disturbance. • Dr White warned her several times about developing possible addiction and tolerance to benzodiazepines and allied substances but because of her nursing background he felt that she had a good grasp of her own needs and she convinced him that she could be trusted to be careful with the usage of the drugs he prescribed. • That she stated to him that she needed the medication to keep her job. [7] In a subsequent letter Dr White commented on reports that the MMU had received from Dr Schofield, the appellant’s current GP, and a Mr John Hutchinson, an addiction counsellor. In that letter he repudiated Dr Schofield’s assertion that the 230.02 (pg) 3 appellant’s chronic fatigue syndrome was in fact a consequence of her addiction to the drugs he had prescribed. He confirmed that his initial diagnosis of the appellant was that of chronic fatigue syndrome and associated ailments. Dr White also noted that the appellant also suffered from certain psychiatric disorders which had caused her to be admitted to Tokanui psychiatric hospital in 1995. He stated that this condition was quite distinct from any depression or drug related condition. He confirmed that the reason for her being referred to Tokanui was because of a schizophrenic type depression at a time when she was hearing voices. She was not at that time withdrawing from benzodiazepine. He further noted that the specialists at Tokanui did not suggest any change in her medication that he had been prescribing. [8] The MMU also received advice from Dr Trevor Ryan, who became the appellant’s GP in November 1998 and his letter of 10 August 2001 states as follows: “As can be seen from the ensuing records, Sue first was seen at our centre at the end of November ’98, and first requested some sleeping tablets in March 2000. At this and subsequent times she seemed to have plausible explanations, although towards the end of last year she was given scripts for 30 tabs rather than 50. Over the Christmas period (last year) and the following months her requests increased and this was pointed out to me by the nursing staff who fielded her calls on occasion. In May this year matters came to a head and Sue was given instructions on how to reduce and stop her Temazepam. It appeared she had been on these (at a higher dose) for some months and that weaning off should not be a problem. She was also given the phone number of Pam Regal, an ACC registered counsellor/hypnotherapist to assist her. (I personally did not consider Sue to be eligible under ACC however, and no ACC 45 was completed). As can be seen from the notes, she appeared to be succeeding in coming off her benefit, and increasing her work hours at the Hospital. In that sense, I was pleased with her overall progress. If Sue had been taking benzodiazepines in the period March ’95 thru’ March 2000 (my records do not indicate this) then obviously her problem would have been of such duration as to warrant (for example) changing to Diazepam and reducing the dosage gradually over some months. I can only assume Sue did not avail herself of my advice, or seek the assistance of Pam Regal, as I have had no further feedback ‘til now. If I can be of further assistance, feel free to let me know. Yours sincerely PS-I feel it is worth noting that, as I understand it, Sue was being treated by Dr White for a plethora of symptoms and that her working diagnosis fell under the 230.02 (pg) 4 heading of ME or Chronic Fatigue Syndrome. As such I feel it may be difficult to distinguish between which of her (not inconsiderable) symptoms relate to the Chronic Fatigue Syndrome and which may have been occasioned by her medication.” [9] The MMU also received advice from Dr Schofield. His first advice was that the appellant was currently going through a difficult phase in a long term rehabilitation process and that she was going through a withdrawal process from the benzodiazepines which she had been taking for approximately 10 years. He advised that this process was ongoing and leading to a deterioration in her physical and emotional abilities. [10] Dr Schofield then gave further advice confirming that he had been prescribing Temazepam and that he had discovered that she had also been having the same medication prescribed by Dr Ryan, unknown to him, and that the appellant was going on ‘binges’ of these drugs and it was his task to try and get her off these drugs and to cease her abuse of them. [11] The MMU was also provided with the patient notes of Dr White and whilst the ongoing prescription of benzodiazepines is noted, nowhere in his notes, over the years, is there any mention of him advising or cautioning her about the use of these drugs. [12] Once the MMU had assembled all the material it considered relevant, it thereupon referred same to Dr Alastair Wilson, a GP in Wanganui, who was consulted as an expert for his assessment of the evidence and to advise on whether it was a situation where cover ought to be granted to the appellant. [13] Dr Wilson’s report of 4 January 2002 is comprehensive and addressess all the issues which indeed this Court is required to do. Whilst it is for the Court, in the context of this appeal, to determine as a matter of law whether the appellant has an entitlement to cover, nevertheless I find the expressions of opinion of Dr Wilson most helpful in assisting in this course. For the record I now set out Dr Wilson’s report. “Miss Colley consulted Dr M White on 15/3/1989 and again many times between 1989 and 1995. It is difficult to establish whether Dr White’s note entries constituted actual consultations or just repeat prescriptions events. Many appear to be the latter. There were 19 different date entries for 1989, 17 for 1990, 15 for 1991, 5 for 1992 (no notes for latter ½ of year- probably notes missing) 20 for 1993 and 29 for 1994. Many of the entries were non- consultations, detailing repeat prescriptions of benzodiazepine medications – 230.02 (pg) 5 notably temazepam, halcion and zopiclome but also of appetite supressant medications, tenuate dospan and umine. Dr White, in his letter of 20 November 2001, states that he was treating Miss Colley’s chronic fatigue syndrome. He states that this manifested itself as severe fatigue, sleep disturbance, poor concentration and poor memory. He also states that much of Miss Colley’s treatment was of counselling and explanatory nature. Her drug treatment consisted of anticandidal therapy and using antidepressant drugs and benzodiazepines to rectify her sleep disturbance. On 25 November 1995 Dr White referred Miss Colley to Tokanui Psychiatric Hospital for assessment and treatment of depression. She was an inpatient for 3 days until 28 November 1995. She requested and was given temazepam in hospital to sleep. The only mention of Miss Colley’s benzodiazepine medication intake was a note by Dr Hacking (probably psychiatric house surgeon) who stated on 26 November 1995 that “her longer than prescribed dose of temazepam (she admits to taking 5 tablets) is not assessed as an attempt to overdose.” In 1998 Miss Colley transferred to the care of Dr T Ryan who continued the care till May 2001 when Dr Schofield took over the management which involved a withdrawal programme for temazepam. There are no notes of consultations between 1995 and 1998. Dr Ryan has notes on Miss Colley 16 times between 30 November 1998 and 8 May 2001. All appear to be consultations, with no repeat prescription events. Miss Colley has since consulted the Alcohol and Addiction Counselling Centre in Hamilton where she has been receiving counselling for her ongoing problems and benzodiazepine addiction. Dr White’s brief consultation notes of 15 March 1989 indicate that Miss Colley had continuing symptoms of a vague chronic illness. Dr White’s diagnosis in 1989 was of chronic fatigue syndrome. He referred her to Tokanui Hospital (a psychiatric hospital) with 6 months duration of depression “taking temazepam 20 mg ?numbers”. Notes from Miss Colley’s Tokanui Hospital admission indicate a past history of ME (myalgic encephalitis), previous use of prozac and amitriptyline and a long history of “ill health” since moving to New Zealand 9 years before, in 1986. The diagnosis made at her hospital admission was of “schizophrenic type psychosis” and “psychotic depression” by Dr R Colgate, the Psychiatric Registrar. Chronic auditory hallucinations of approximately 10 years duration were identified. Dr Van der Sluis, Consultant Psychiatrist, discharge diagnosis was of a delusional mood and schizophreniform type psychosis. He noted recent stresses from the death of Miss Colley’s father 2 months before and of a long- term relationship breakup shortly prior to admission. Nature of Injury Claim 230.02 (pg) 6 Miss Colley claims physical and mental injuries resulting from the long term prescription of benzodiazepines without informed consent. Specifically her concern, regarding the general standard of care are: 1. “Lack of informed consent regarding the benzodiazepines drug which was prescribed for me and the injuries I could incur.” 2. “No information or warnings given on the manifold side effects whilst on or the horrific problems and side effect injuries whilst attempting to withdraw from benzodiazepines.” 3. ”GP’s lack of knowledge, failing to recognise symptoms and as a consequence misdiagnosis of my symptoms related to benzodiazepines injuries/addiction.” Personal Injury Has the claimant suffered a physical or mental injury as a result of medical treatment? No. Miss Colley has developed an addiction to the benzodiazepine medications through her abuse of them. The majority of her symptoms outlined were present prior to the initiation of the benzodiazepine medications. This treatment did not treat her psychological condition appropriately but has not harmed her apart from the addiction to them. This is reflected in the fact that she remained able to work as a neonatal nurse during this period. Causal Link On the balance of probabilities can the alleged injury be attributed to the treatment the claimant received. No. Medical Error Is there an issue of medical error i.e. failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. Yes. Reasons: (i) There are sparse consultation and problem notes by Dr M White between 1989 and 1995. In contrast Dr Ryan’s notes are full and comprehensive. (ii) There are no written notes by Dr M White indicating the discussion and his advice concerning the addictive problems and consequences of the benzodiazepine medications prescribed. 230.02 (pg) 7 (iii) There is evidence of Dr M White prescribing additional potentially addictive medications – appetite suppressants for an obesity problem, to a person whom he considered was already abusing benzodiazepines. This is inappropriate prescribing. There were again no notes by Dr White regarding Miss Colley’s weight problems not teven her weight or BM1. Overall I consider Dr White displayed poor medical care between 1989 and 1995 in this case. Medical Mishap This does not apply in this case. General Discussion re alleged injuries (a) Miss Colley’s claim of lack of informed consent regarding benzodiazepines is disputed by Dr White who indicates repeated discussions and advice by him re the dangers of long-term use of benzodiazepines. Unfortunately no note of this advice is evident in his notes between 1989 and 1995. Dr Ryan’s of 10/?/01 and notes from Tokanui Hospital of 1995 indicate that Miss Colley was an intelligent person with good insight. She had an extensive nursing background. I consider that it is highly unlikely that she was ignorant of the potential dangers of such medications as benzodiazepine abuse is a well known health problem. It would appear she ignored this awareness. Her claim that no information or warnings were given is in conflict with Dr White’s comments and also the notes of Dr Ryan whom she consulted between 1998 and 2001. (b) Miss Colley had significant medical and psychological symptoms and stress factors prior to consulting Dr White in 1989. These continued during the years she took the benzodiazepines. She was considered by the specialist medical staff at Tokanui Hospital in 1995 to have a psychiatric condition unrelated to her benzodiazepine intake. I consider Miss Colley has had a psychological/psychiatric medical condition independent of the effect of benzodiazepines and the two are unrelated. I consider that she has abused the medications, herself admitting to taking them in “binges” and has a significant problem of benzodiazepine addiction. However, I do not agree with the statements of the addiction counsellor, Rob Chiles, in his letter of 17/08/2001 that “all indications are that she has been severely affected over a long period by the adverse effects of benzodiazepines.” I consider the majority of the symptoms that Miss Colley outlines are of her pre-existing psychological/psychiatric condition which lead to the abuse of the medication. Miss Colley’s list of “drug induced brain injuries” would all appear to be part of the symptomatology that she had when she first consulted Dr White in 1989 prior to taking frequent benzodiazepines.” 230.02 (pg) 8 [14] Dr White attended the Review Hearing and gave evidence of the fact that he had warned the appellant frequently of the consequences of possible addiction, he stating that this was his standard practice. He also confirmed that the symptoms she was complaining of were similar to those which he elicited at the commencement of his treatment of her in 1989. [15] The appellant gave evidence that she had not been advised of the risks of side effects of benzodiazepine use nor was she aware of this from her work as a nurse. Although the Reviewer had the opportunity of seeing and hearing those witnesses, he elected not to make any positive finding of whether Dr White had or had not given any advice to the appellant about the risks of addiction associated with the sustained taking of that particular group of drugs. DECISION [16] Section 39 of the Accident Insurance Act 1998 allows for cover under the Act for personal injury caused by medical misadventure suffered by the insured. In this case it is therefore necessary that the appellant establish that she has suffered personal injury and that personal injury was caused by an act of medical misadventure. The Act also requires that the personal injury suffered be a physical injury. [17] The appellant alleges that her then GP, Dr White, committed medical error in that he failed to advise and warn the appellant of the potentially addictive consequences of sustained taking of benzodiazepines or of the possible side effects that might be experienced from any long-term taking of those drugs. [18] Dr White is on record as stating that he did so advise the appellant when he began prescribing these drugs and that he repeated his advice and warnings on a number of occasions subsequently. The appellant for her part, asserts that she never received any such advice from Dr White and was totally ignorant of the possibilities of addiction and/or side effects. [19] This Court has not had the opportunity of having those competing assertions tested and it is unfortunate that the Review Officer did not make any finding after he had seen and heard both of them give evidence. Indeed he himself had the opportunity of testing that evidence but chose not to do so. 230.02 (pg) 9 [20] What the Court does have is the fact of the complete absence of any notes of Dr White indicating and recording details of any advice he may have given to the appellant in those early years after he began prescribing these drugs for her. [21] For the record it can be noted that the Court accepts that the reasonable standard of care and skill expected of a treating health professional in those circumstances does require a health professional to give advice of the possible side effects and addictive qualities of long-term taking of the benzodiazepine family of drugs. There is considerable literature on the consequences of long-term taking of these drugs and this Court confirms that a general practitioner prescribing same has a duty to give such advice when so doing. [22] I note the observations made by Dr Wilson when he identified that there was evidence of Dr White prescribing addictive medications without appropriate consultations to supervise the medication’s use and potential abuse. I find that even if the Court were to accept Dr White’s advice that he did give the appellant advice and warning, nevertheless he did not continue to give that advice and he continued to prescribe those potentially addictive medications, almost on request, without having an appropriate consultaton with the appellant to discuss her further use of such drugs. [23] In those circumstances I find that the actions of Dr White do amount to medical error in the manner in which he allowed the appellant to continue to receive those drugs without appropriate consultation. [24] Having found as I have that there has been medical error within the meaning of s.36 of the Act, it now requires the Court to consider whether that medical error has caused physical injury. [25] The evidence is that Dr White ceased treating the appellant in 1998 and it seems that at that time she came under the care of Dr Ryan. There is nothing in Dr Ryan’s evidence to suggest that at the time he saw the appellant she was in any way suffering from any side effects from her taking of the benzodiazepine drugs, and indeed he himself began prescribing same. It is noted by Dr Wilson in his report that Dr Ryan’s notes contained the fact that he gave advice to the appellant about that particular medication. 230.02 (pg) 10 [26] The evidence is also that in addition to seeing Dr Ryan, the appellant also consulted Dr Schofield and it seems that she was obtaining medication from each of these doctors, unbeknown to the other, and was going on ‘binge’ drug taking at particular times as a consequence thereof. [27] The actions of this appellant subsequent to 1998 must be taken to be the actions of a person who has full knowledge of the consequences of such drug taking and it was of course the ‘binge’ drug taking that led to her seeking treatment and obtaining help and starting her withdrawal from those drugs. [28] In addition to the problems for which the appellant had been prescribed the benzodiazepines was the fact of her having a psychological/psychiatric condition and that this, associated with the chronic fatigue syndrome which manifested itself as severe fatigue, sleep disturbance and poor concentration and poor memory, were present before even Dr White commenced his treatment of the appellant. I note the advice of Dr Ryan that it would be impossible to differentiate the symptoms which the appellant had which pre-existed from those that may have arisen as a result of any benzodiazepine consumption. [29] Having considered the evidence, I find that the medical error committed by Dr White has not been causative of any personal injury for which cover can be granted. The nature of the physical injuries which Dr Schofield describes, namely, dysarthria (slurred speech) ataxia (loss of co-ordination and movement), diplopia (double vision), are all symptoms of ME (myalgic encephalomyelitis) or chronic fatigue symptom with which the appellant had been diagnosed before being prescribed any drugs by Dr White. [30] Whilst I accept the advice of Dr Schofield that the appellant, as she presented to him in 2001, was suffering from the particular symptoms he stated, nevertheless there is no evidence to establish that they were caused by any act or omission of Dr White. It is clear that the appellant continued ‘binge’ taking of such drugs after Dr White ceased to be involved and after she had been made fully aware, if she already was not, of the side effects and addictive consequences that can be associated with such drug taking. [31] In the final analysis I find that the appellant’s actions and use of those benzodizepine drugs, after ceasing with Dr White, has clouded the issue to such an 230.02 (pg) 11 extent that it is impossible for the Court to establish on the balance of probabilities that there is a clear chain of causation establishing cause and effect. Indeed that causative chain has been interrupted by the interventions of Dr Ryan and Dr Schofield themselves continuing to prescribe those drugs and with the appellant’s continued use and abuse despite warnings. There is nothing in the evidence of Dr Ryan to suggest the appellant was suffering any physical injury when she first consulted him. [32] Even if the Court were to find that the appellant was in an addictive state by the time she had consulted Dr Ryan nevertheless such addiction per se is not a physical injury and cannot be the subject of cover. [33] It follows from my finding as set out above that the appellant’s claim for cover cannot succeed as any act of medical error cannot be established as being causative of any physical injury. This appeal is therefore dismissed. DATED at AUCKLAND this 22nd day of January 2003 M J Beattie District Court Judge 230.02 (pg)