Fraser v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 44 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SYLVIA ROSAMOND LOUISE FRASER of Wellington Appellant (Appeal No. DCA 70/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of April 1996 APPEARANCES Appellant in person A D Barnett for the respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant suffered medical misadventure or a personal injury covered by the Act when her dental bridge was loosened in the course of surgery. The appellant underwent surgery on 19 April 1993 and when she was asked by the medical staff on the evening prior to the operation whether she had her own teeth or false teeth she indicated that she had her own. Her evidence was that while she had a dental bridge which could not be removed, she did not think that it was necessary to say that she had a dental bridge. During the course of the anaesthetic procedures pressure on the bridge caused it to loosen and a few days after the operation the 2 bridge and the tooth it supported fell out and a root nerve was exposed which was treated on 30 April 1993. On 7 May 1993 the appellant lodged a claim for cover and dental treatment expenses. The respondent took the view that the issue raised the question of a medical misadventure and referred it to its Medical Misadventure Advisory Committee. In a statement provided to the Committee the appellant said that post-operatively she was aware of some looseness in her bridge, but three days after she left the hospital it fell off. She said that it was repaired and recemented in place by her dentist, but as a result one of the teeth supporting the bridge was traumatised and required root canal treatment. A certificate provided by the appellant's dental practitioner, Mr A B Page, dated 1 June 1993 indicated that the treatment commenced on 30 April 1993 and was completed on 20 May 1993. In correspondence with the Medical Misadventure Advisory Committee, the appellant indicated that it was her view that as the anaesthetist was not aware of the bridge in her front upper teeth she accepted that he had not failed to exercise a reasonable standard of care and skill and accordingly she did not consider that a medical error had occurred. However, she submitted that a medical mishap had occurred because of the severe consequence to her in having to pay her dental fees. The appellant submitted further that she had suffered a significant disability which would have lasted indefinitely had she not sought treatment immediately it occurred Mr Glover, the anaesthetist involved also provided the Committee with his view of the position which was: "I agree that this injury was 'medical mishap' of sufficient 'rarity' to fit the 'criteria'. However, I feel that her disability would have lasted indefinitely rather than just 28 days. I agree with Miss Fraser that her disability was 'significant' as she could not talk properly and was disfigured as she stated in her letter of 16 August 1993." On 26 July 1994 the respondent notified the appellant that her claim was declined. The appellant applied for a review of that decision. In her evidence before the review officer the appellant stated that she considered that she had a significant disability in that she had a gap of three teeth missing in the front of her mouth until the repair was effected and this caused her problems with speaking and eating. She submitted to the review officer that the disability would have lasted for more than 28 days had she not obtained dental treatment to remedy it. The review officer concluded that the decision of the respondent was correct and the application for review was declined. When the appeal came before me the appellant repeated submissions she had previously made both to the review officer and in writing to the respondent and the Medical Misadventure Advisory Committee. When it became evident that the requirements of s.5(4) involved a significant disability lasting more than 28 days in total the appellant raised the question that some of the dates may have been incorrect. I therefore agreed to delay the issue of a decision pending a further report from Mr Page who had completed the dental repairs. Unfortunately some difficulty ensued in obtaining that report which was eventually issued on 20 September 1997. In that report Mr Page said that the date of accident was 19 April 1993 when "bridge detached and supporting tooth fractured". He said that he commenced treatment on 30 April 1993 and it was completed on 25 May 1997. The appellant repeated the submissions which she had already made before the review officer and the fact that she had suffered severe emotional distress because of the disfigurement to her face pending the dental repairs. She accepted that there could be no question of medical error because the anaesthetist was completely unaware of the presence of the dental bridge. She did however submit that she had suffered medical mishap which entitled her to cover because she had suffered a significant disability which would have lasted more than 28 days had she not obtained dental treatment. In a final submission following the receipt of Mr Page's final report, the appellant conceded that she was unaware of the certificate from Mr Page originally filed with her claim by Mr Page and dated 1 June 1993 which indicated that treatment commenced on 30 April 1993 and concluded on 20 May 1993. She now concedes that treatment was completed on 20 May 1993. Mr Barnett submitted that in order to qualify for cover the appellant must establish that she has suffered personal injury caused by accident which may include personal injury which is medical misadventure. He submitted that s.3 of the Act which defines an accident excludes "any of the occurrences specified above that is treatment by or at the direction of a registered health professional". He submitted that the appellant's surgery required the administration of an anaesthetic which while it entailed application of force external to her human body, the result of that application of force is excluded from the term "accident" as it was being applied in the course of treatment by a registered health professional. Mr Barnett submitted further that if the appellant is to satisfy the requirements that she has suffered medical misadventure by way of a medical mishap she must establish that as an adverse consequence of the treatment undertaken she was (a) hospitalised as a inpatient for more than 14 days; or (b) suffered a significant disability lasting for more than 28 days in total or (c) that she qualified for an independence allowance under s.54 of the Act. He submitted that on the basis of the evidence now accepted by the appellant it could not be accepted that if there was a significant disability it lasted for more than 28 days in total. He submitted that while the appellant may have suffered some restrictions in her ability to talk and to eat this did not represent a "significant disability". He submitted that even if it did constitute a significant disability the evidence now was it did not endure for 28 days or more. While the appellant is well aware of the provisions of s.5 of the Act I set out s.5(4) which is the principal subject of this appeal: " (4) For the purposes of the definition of the term "medical mishap", the adverse consequences of treatment are severe only if they result in death or-- (n) Hospitalisation as an inpatient for more than 14 days; or (b) Significant disability lasting for more than 28 days in total; (c) The person qualifying for an independence allowance under section 54 of this Act." The appellant has already accepted that the actions of the anaesthetist did not amount to medical error and she brings her appeal on the basis that she suffered a medical misadventure by way of a medical mishap. The appellant now accepts that the disability which she suffered which amounted to the gap in the front of her teeth requiring restorative dental treatment caused her embarrassment, particularly by way of difficulty in speaking and eating. Her principal submission is that had she not had the treatment the disability would have lasted for more than 28 days. However, the requirement which must be met to come within the ambit of the section is that the disability is one "lasting for more than 28 days in total" (emphasis mine). It is clear from the evidence now available that the disability did not last for more than 28 days in total. As the incident occurred while the appellant was receiving treatment from a registered health professional, the damage to the bridge cannot come within the concept of personal injury caused by accident. The appeal is therefore dismissed. DATED at WELLINGTON this 18th day of March 1998 anddubin A W Middleton ~ District Court Judge dca70-95.doc(rd)