Lamb v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2011] NZACC 156 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 92/10) BETWEEN TANIA LAMB Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 5 April 2011 Appearances: Appellant in person Ms A Douglass for respondent Judgment: 20 May 2011 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The short point in this appeal is whether treatment of the appellant's brain injury at Palmerston North Hospital in 1977 was inadequate in failing to have her assessed by a neurosurgeon, and failing to arrange a CT scan, if necessary transporting her to Wellington where appropriate neurosurgery treatment was available. [2] Ms Lamb was aged 11 when she was injured in a motor vehicle accident. In the collision, the left side of her head struck the car dashboard. She later suffered weakness and disability on her left side, which has been attributed to either a right side contra coup injury, or a brain stem injury. [3] Ms Lamb has researched material relating to brain injury and understands the mechanism of contra coup injury and subdural haematoma. The explanation that she puts forward for her injury is that a subdural haematoma on the right side of her brain developed within nine days of her admission to hospital. Burr holes were made to the left side of her skull for the purpose of excluding a haematoma at the fracture site. An acute subdural haematoma results in clotted blood that does not release through a burr hole. The treatment to relieve the pressure of a clotted mass on the brain could involve a craniotomy or bone flap. [4] The hospital notes at the time of her admission show that Ms Lamb had limb strength on both sides at the time of admission, but that by the ninth day she had become weak on her left side, consistent with brain damage on the right side. Ms Lamb says that appropriate diagnosis would have been made by a neurosurgeon, and that the proper course would have been to transfer her to Wellington. She has continued to be disabled to some extent on her left side. She has cover for personal injury by accident and further cover for a treatment injury would have no other compensation consequences, but the appeal is pursued for the purpose of holding the hospital accountable. There is no allegation of negligence against any particular medical practitioner. Law [5] Treatment injury under s 32 of the 2001 Act is injury: b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including - (i) the person's underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. [6] The injury must be caused by the treatment, which includes a failure to take a required step in the process of diagnosis or treatment. If no such failure is demonstrated in this case on the balance of probabilities, then the inevitable conclusion would be that the injury was caused by an underlying condition, namely the brain injury caused by the accident, and cover would be excluded. [7] It is not alleged that the treatment that was applied caused the injury, but only that there was a failure to exclude acute subdural haematoma by CT scan and craniotomy, which were available in Wellington. [8] In 1979 Ms Lamb, then aged 13, wrote to visiting neurosurgeons Graeme Martin and R J Worth. Mr Martin suggested that she obtain an appointment to see Mr V Balakrishnan, neurosurgeon. Mr Balakrishnan examined the appellant in November 1979. He believed that she had sustained a severe pontine or lower brain stem injury on the left side resulting in hemiplegia and partial bulbar paralysis. In December 1979 Mr Balakrishnan reported that improvement had not been progressive after her intensive rehabilitation and physiotherapy at Palmerston North Hospital. She continued to have spastic left hemiplegia. He prescribed medication and follow up. [9] In April 2008, Ms Lamb was referred again to Mr Balakrishnan. She took in a list of questions for clarification. The questions related to her treatment when in intensive care in 1977. Mr Balakrishnan wrote a following report in which he said that there was no visiting neurosurgeon at Palmerston North at the time of Ms Lamb's initial treatment, but he considered that the presence of a neurosurgeon would have made no difference. It should be mentioned that Ms Lamb and her mother reported that Mr Balakrishnan had told them in about 1979 that the outcome would have been different if the operation had been performed by a neurosurgeon. Mr Balakrishnan could not recall such a discussion and did not support a claim for treatment injury. [10] Ms Lamb's mother provided an affidavit confirming her recollection of what Mr Balakrishnan had said. The disagreement is unexplained, but in the result there is no evidence. A reported past statement by a consultant has no evidential value in proof of a treatment injury claim. [11] The appellant's GP then lodged an ACC claim for treatment injury described as "lack of neurosurgical intervention". [12] The hospital treatment notes from 1977 were obtained. The main point to be made from this record is that Ms Lamb had no left side weakness on admission, but it developed within nine days. Undoubtedly that process was the cause of her present disability. There was no specialist neurological intervention at the time that the developing problem might have been diagnosed. Those facts are not contested. The respondent asserts however that there is no evidence that there was an acute subdural haematoma. An MRI was done in March 2008 and did not show any right side lesion that would confirm a possible old subdural haematoma. That does not mean there was none, but there is no remaining evidence. In July 2009, Dr Richard Seemann reviewed the MRI. He noted that an area of gliosis shown on the left side of the brain could not have accounted for left sided paralysis. He stated that, given that the paralysis occurred some nine days after the accident, he was suspicious that she may have had a subdural haematoma, which subsequently resolved and has left no residual signs on the MRI scan. Dr Seemann stated that "this [possibility] would reinforce Tania's point that if she had had a CT scan or been further assessed by the neurosurgeons in Wellington at the time that the paralysis occurred that successful treatment could have been undertaken". That is to say that if there had been a subdural haematoma, a successful treatment could have been undertaken in Wellington. It did not assist on the question whether there had been a subdural haematoma. The letter was a short two paragraphs and did not contain any analysis of the hospital records but simply pointed to a possibility. [13] Ms Lamb obtained affidavits from two members of the Middle Districts Aero Club to confirm that flights were taken even before the 1970's to transfer patients to neurosurgical wards in Wellington and Dunedin. [14] The Corporation requested an opinion from Mr Graeme MacDonald, neurological and spinal surgeon in Auckland. Mr MacDonald did not examine Ms Lamb, but considered the conclusions to be drawn from the clinical records and other information. [15] The hospital notes showed that the patient's left pupil had been dilated with no response to light. This raised the possibility of a haematoma deep to the left skull fracture and hence the need for a left sided burr hole to exclude that possibility. The fracture was not depressed and no haematoma was seen on the burr hole. Mr MacDonald agreed that the left sided hemiparesis was probably caused by a right side contra coup cerebral contusion. There was also a different possibility of a brain stem lesion. Mr MacDonald considered that the treatment had been appropriate and that he did not believe that transfer to Wellington would have been associated with any improvement in the outcome. He summarised his reasons in the following paragraph: "It is not my opinion that a decompressive craniotomy was indicated. There is no satisfactory treatment for a contre coup cerebral contusion which occurs at the time of the initial impact, and a decompressive craniotomy is only indicated for a traumatic acute subdural haematoma. The result of this type of decompressive craniotomy are often very poor. The only treatment for this type of traumatic brain injury is respiratory support on a ventilator, and this was obviously undertaken in Palmerston North Hospital. Ms Lamb has suggested that Mr Balakrishnan said that had a Neurosurgeon been available after the car accident things would have been a lot different. I cannot agree with this comment, if Mr Balakrishnan actually said this, as I don't think there is any neurosurgical intervention which would help a contre coup cerebral injury which occurs at the time of the initial impact. It is also my opinion that the entries from the ICU in the Palmerston North Public Hospital during Ms Lamb's treatment in that unit are carefully documented. I am uncertain of the exact date when CT imaging was introduced into Palmerston North Hospital, but I believe it was 1984 or 1985, (information from Palmerston North Radiography) and hence this type of imaging was not available in that area at that time. Ms Lamb has commented that she might have been moved by air to the neurosurgical centre in Wellington, but there may have been reasons associated with her other injuries why this was not undertaken, and I do not believe that such a transfer would have made any difference to Ms Lamb's long term outlook. As mentioned above, I don't believe there is any satisfactory treatment for a contra coup cerebral contusion if this was the basis of her left hemiparesis." [16] Mr Macdonald concluded that the injury was caused by the accident and that there was no injury caused by treatment failure. [17] ACC then issued a decision on 18 February 2009 declining cover for a treatment injury . [18] Ms Lamb pursued methodical enquiries of her own. She considered that different treatment could have been based on a CT scan showing the location of the brain injury. She had some email correspondence with Dr Emil Popovic in Australia. Dr Popovic explained the process of monitoring and diagnosis of a possible brain problem. He informed her that craniotomy is required when the patient is about to or is actually deteriorating due to a mass problem within the skull, which is usually blood clot and/or swelling. The condition can only be diagnosed by a CT scan. Review [19] A review was concluded on 5 January 2010 after allowing time for Ms Lamb to obtain a further specialist report. No report came to hand and the Reviewer closed the hearing and issued his decision confirming the Corporation's declining cover. The Reviewer correctly stated that this was a complex medical question for which the Corporation had to rely on the opinion of expert medical providers. Mr Macdonald and Mr Balakrishnan were eminently qualified to comment on the possibility of treatment error and both found no ground for cover. [20] In this appeal, Ms Lamb has referred to the same evidence and advanced the same arguments. She has researched her claim throughly and has produced web pages containing studies relating to subdural haematoma and also some Australian judgments relating to treatment failures. The internet information is informative, but it is not within the proper function of a Court to draw conclusions from texts in order to substitute for admissible qualified expert opinions from practitioners who have reviewed the material in the case. [21] The Australian judgments are from a jurisdiction where civil liability for personal injury remains a cause of action and where damages may be available for loss of a chance. That can occur where a failure to take proper diagnostic steps is one of a number of possible causes of further injury. In the accident compensation jurisdiction in New Zealand that is not a basis for cover. Here it must be shown on the balance of probabilities that the injury was caused by treatment error. In this case, although the underlying subdural haematoma was caused by the accident, the question is whether the outcome was worse because of a failure to diagnose and treat the injury. That has to be demonstrated as a probability, not just one of several possibilities. Discussion [22] The claim for cover utimately depends on the opinions of qualified practitioners who are able to provide expert advice on the medical basis for the claim. The advice that was obtained was that a contra coup injury was a likely cause of the appellant's left sided disability, and that appropriate treatment was provided. [23] There is evidence that a CT scan would have assisted in diagnosis. The opinions by Mr MacDonald and Mr Balakrishnan give only cursory reasons for their conclusions that the outcome would not have been improved by transfering the patient to Wellington. The evidence suggests that a better outcome would have depended on a range of factors including the point of time when the need for a CT scan became apparent, the ability to move the patient while being ventilated or having other injuries, and the relative merit of ventilation and craniotomy in producing a better outcome. [24] Appellant has provided evidence that Wellington Hospital had a CT scanner and patients could be transferred by air. She has put forward a logical argument, but one which requires analysis and opinion by an appropriate specialist. Dr Seemann's letter validates the basis for the appellant's argument, but it does not provide any more evidence that there was a treatable condition and an available means of diagnosis and more effective treatment. The specialists' views are that the condition was treatable by ventilation, and that further diagnosis would not have improved the outcome. It may well be that the risks of craniotomy require a medical judgment of the point of time at which it should be used instead of relying entirely on ventilation. [25] I agree with the appellant that there are questions that have not been fully answered in the specialist opinions. But it is not within the function of the Court to embark on a particular construction of medical questions and arrive at a finding that there was a point during treatment when subdural haematoma should have been recognised as a possibility requiring transfer to Wellington and craniotomy. That conclusion is easily stated, but it depends entirely on expert analysis and not on a lay person's view. [26] At the hearing, the appellant stated her wish to hold the Hospital accountable. That is not one of the purposes of the Accident Compensation Act 2001. Fortunately, the appellant has cover in any case. Ms Douglass for the respondent argued that the Court need not reach a decision because the claim is moot in the absence of an issue of compensation to be decided. I have dealt with that argument. [27] For the foregoing reasons, the appeal is dismissed. decry Judge D A Ongley District Court Judge