Estate of Gibbs-Love v Accident Compensation Corporation

. . ... . IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. [2010] NZACC Ho IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN THE ESTATE OF JALI GIBBS-LOVE (Al 270/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at PALMERSTON NORTH on 7 May 2010 APPEARANCES Mrs B Love, Advocate for Appellant. Ms A Douglass, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 6 March 2008, whereby it declined to grant cover for a treatment injury, namely the death of Jali Gibbs-Love (hereinafter called "the deceased"), on the grounds that his death had not been caused by any treatment from a health professional. [2] The background facts relevant to the issue in this appeal may be stated as follows: . At the date of his death, namely 25 November 2007, the deceased was aged 22 years. . The deceased had suffered from severe cerebral palsy since birth, and which condition had necessitated constant care and treatment 270.09 (pg) . ... .... . . . . . . . .. . . . . . . . . . . . ... . . . . . . .. 2 throughout his life. The deceased resided in Wanganui with his mother. . The deceased was confined to a wheelchair and suffered from involuntary muscle spasms from time to time, those spasms being the main manifestation of his disability. . The deceased was under the care of Dr Popescu, a physician in Wanganui. . In August 2007, Dr Popescu contacted Dr J de Groot, Consultant in Rehabilitation Medicine at Palmerston North Hospital, with a view to the deceased being transferred to the care of Dr de Groot because of the increasing frequency of the spasms which the deceased was experiencing. . There was not a place available for the deceased at Palmerston North Hospital immediately and the deceased was not admitted to that hospital until 12 November 2007. At the time of his admission, Dr de Groot and his team were made aware of the concern which Dr Popescu had about the effect which these spasms were having on the deceased's respiratory system. . Following his admission to hospital occasions of spasm and respiratory arrest did occur over the following days. Severe respiratory impairment was measured by staff on a number of occasions. . The main medication with which the deceased had been provided prior to admission was the drug Baclofen and the dosage that had been prescribed by Dr Popescu was 30 mg three times per day. . In addition to Baclofen the deceased was also taking Diazepam which was used on occasions when he experienced severe episodes of spasm. . Dr de Groot was concerned about the combination of reduced muscle tone and respiratory impairment brought on by the significant dose of Baclofen. . . ... . ... 3 . Dr de Groot directed that the dose of Baclofen be reduced to 10 mg three times per day, but at the same time he directed the commencement of the drug Tetrabenazine at a dose of 12.5 mg twice a day. On 16 November 2007 the deceased developed a further episode of extensor spasm which compromised his airways and his oxygen levels dropped rapidly and he developed respiratory arrest. . The deceased developed features of acute dystonia, he was given the drug Cogentin and he was transferred to the Coronary Care Unit. . The deceased was reviewed on 17 November and his condition was considered stable and he was therefore transferred back to Dr de Groot's Rehabilitation ward. . The deceased continued to receive the drug Cogentin but the Baclofen, which had been stopped on 16 November, was not reinstated. . The deceased's mother was at the hospital for periods of time and she expressed extreme concern at the changes which had been made to the deceased's medication, particularly the withdrawal of Baclofen. It is the case that she and Dr de Groot had a major disagreement, as a consequence of which Dr de Groot elected to step back from being in charge of the deceased's care, and he was transferred to another ward under the care of Dr Rudyard Yap, a physician with an interest in infectious disease medicine. . On 20 November the deceased experienced two further episodes of severe dystonia, which gave rise to two separate cardiac arrest calls. His condition was identified as being similar to that during his respiratory arrest in the Rehabilitation Ward. . A further respiratory arrest occurred in the evening of 20 November, and by the following day he had developed pneumonia, which was treated with intravenous antibiotics. . The deceased's level of consciousness remained reduced and drugs were required to be given intravenously. . In the early morning of 25 November, the deceased died. . An autopsy report was provided for the Coroner from Dr J Rutherford, Pathologist, and he advised that the cause of death was respiratory arrest from airways obstruction, secondary to cervical muscular spasm due to cerebral palsy. In December 2007 a Treatment Injury Claim was lodged with the respondent by Mrs Love on behalf of the deceased . The respondent obtained reports from the medical personnel involved with the deceased, including his GP and Dr de Groot, and it then sought external advice from three experts, namely Dr Wallis, Neurologist, Professor Carl Burgess, Pharmacologist, and Dr Peter Martin, Physician. Each of those specialists provided reports. . Consequent upon those reports the respondent issued its decision on 11 September 2008, declining cover for a treatment injury, on the grounds that the deceased's death was not caused by treatment. . Mrs Love sought a review of that decision and a Review Hearing took place on 26 May 2009. . In a Review Decision dated 4 June 2009, the Reviewer, Mr P Barker, found that all the medical specialists were of the opinion that the deceased had died from the natural consequences of his cerebral palsy and not from any treatment. . For the purposes of the appeal to this Court, Mrs Love has introduced a number of medical reports which could be described as being of an historical nature, and which chart the deceased's treatment and condition over a number of years. 5 [3] In her submissions to the Court, Mrs Love raised as a ground of appeal her contention that the respondent had not investigated the claim for cover to the extent necessary to make an informed decision. She submitted that the evidence was insufficient to give an objective assessment. She also criticised the correctness and validity of the reports from Dr Wallis and Dr Martin. [4] Mrs Love also contested the correctness of the diagnosis of the deceased's condition as it was when he was in hospital, that is the diagnosis of Chorea- Athetoid. She further submitted that the removal of the anti-spasticity medications of Baclofen and Diazepam was an error and resulted in respiratory arrest within 72 hours of withdrawal. 5] Mrs Love submitted that the deceased's spasticity was not correctly recognised and which allowed the deceased's neck spasm to ravage unchecked and his rapid deterioration was an adverse consequence of the sudden withdrawal of the anti-spasticity medications. In all, Mrs Love provided 29 pages of close-typed submissions, on a myriad of issues, which I do not propose to set out in any further detail in this decision. [6] Ms Douglass, Counsel for the Respondent, referred to the explanation by Dr de Groot for his reduction in the dosage of Baclofen and of his reasoning that it was prudent to make a reduction of the dosage. She also referred to the three external reports which had been obtained by the Corporation preparatory to its decision on the question of cover, and also the autopsy report of Dr Rutherford, which had been independently obtained for the purposes of the Coroner's report. [7] Counsel submitted that there was no evidence that the deceased's death was caused by treatment, namely the medical management of his condition when admitted to Palmerston North Hospital. She submitted that the Corporation had sought expert clinical advice and there was no evidence that any changes in medication was the cause of death. (8] Counsel submitted that the medical evidence shows that the deceased's death was caused by his underlying health condition. DECISION ] The issue in this appeal is wholly determined by the medical evidence, and in that regard I find that the Court, and before it, the respondent, had a significant 6 body of evidence on which to consider the issue of cover entitlement for the deceased. 10] In addition to his report to the respondent, which he gave on 4 February 2008, Dr de Groot also provided an extensive six-page closely typed report for the Coroner. That report sets out in considerable detail Dr de Groot's treatment and oversight of the deceased following his admission to Palmerston North Hospital on 12 November 2007. [11] Dr de Groot was aware of the deceased's recent history and of the concern that Dr Popescu and the deceased's GP, Dr Cantillon, had about a deterioration in the deceased's condition consequent upon increasing episodes of severe spasm. [12] In his report, Or de Groot gives his reasons for his reduction in dosage of the drug Baclofen, and he gave his advice on this aspect as follows: As the admission took place after our usual ward round, it was not until Tuesday that I managed to review Jali. When doing so, I was informed by our nursing staff that on a number of occasions his oxygen saturation had dropped due to breath- holding episodes. It was apparent on assessment that in between these attacks of spasm, Jali appeared somewhat hypotonic and unable to sustain his posture in his wheelchair, and had a tendency to flop forward whilst seated on his bed; the most prominent feature appeared to be abnormal head movement and posturing reminiscent of choreoathetosis. In my assessment, therefore, I was concerned about the combination of reduced muscle tone and reported respiratory impairment especially as the patient was on a significant dose of Baclofen. Baclofen can reduce the tone of all muscles, including the respiratory muscles, and an excessively high dose can cause oxygen saturation to drop in susceptible patients. In addition, Baclofen can produce seizures in patients with brain injuries, and I considered the possibility that the spasms as reported associated with breathing difficulty, could have occurred in the context of epileptic seizures. In view of these concerns, I felt it would be prudent to make a significant reduction in this patient's Baclofen dose. Although it is generally recommended to wean a patient off oral Baclofen over a period of between one and two weeks, my concerns regarding the patient's respiratory weakness and the possibility of seizures as an underlying cause were such that I felt a more substantial dose reduction was called for in this instance. Any concern about possible adverse side-effects of doing so was alleviated by the fact that it was in a controlled clinical environment where the patient was under constant supervision. Therefore I instructed my House Surgeon to reduce the dose from 30 mg three times a day to 10 mg three times a day. In addition, I added in the drug Tetrabenazine, at a dose of 12.5 mg twice a day. This medication is specifically used to treat the choreoathetoid component of cerebral palsy, as I felt this was probably one of the prime sources of this patient's discomfort." [13] Following the severe spasm on the evening of 16 November, Dr de Groot considered that this episode had features of acute dystonia (more prominent episodes of abnormal posturing of the head, neck, limbs and trunk, and abnormal eye movements whereby there appears to be increased muscle tone) and for this 7 reason the Congentin was thereupon administered intravenously. It was Dr de Groot's advice that the Congintin brought about stability and satisfactory oxygen saturation levels, and for this reason he determined not to reinstate Baclofen. [14] Dr de Groot goes on to advise that when the deceased suffered the two further episodes of severe dystonia on 20 November, he was given Congentin intravenously as well as Diazepam, and the hyperextension of his neck and blocked airway resolved. [15] Dr de Groot further advised that Congentin and two other drugs, namely Midazolam and Cyproheptadine, were given for additional muscle relaxing effect. [16] Dr de Groot advised that the medication chart showed that two doses of Baclofen were administered on 23 November, but none could be administered after that because the deceased was not in position to take oral medication. [17] Thus it is the case that a clear picture of the treatment of the deceased was provided and which was able to be considered by independent specialists. [18] All this evidence was reviewed by Dr Wallis and he gave as his conclusion as follows: There is no evidence that the patient's treatment in Palmerston North Hospital caused his death. It is clear from the available records that the patient's condition had been deteriorating with the passage of time, as manifested by increasing difficult-to-control muscle spasms associated with respiratory problems. These are well described in the notes before he was admitted to hospital, and indeed this is the main reason he was admitted to hospital under the care of Dr de Groot. The spasms had the features of involuntary spastic and dystonic spasms rarely encountered in some forms of cerebral palsy, particularly the dyskinetic type exhibited in this patient. If these are severe (status dystonicus), they can lead to respiratory arrest. I doubt whether they were caused by epilepticorm seizures, as the patient did display evidence of pain during the spasms and had never had features of epilepsy previously. This patient had a form of cerebral palsy caused by kernicterus and that the type of cerebral palsy was the dyskinetic or extrapyramidal form. It had caused substantial disability before he was admitted to hospital. The patient was showing a gradual deterioration in his condition, and indeed this is a phenomenon well known to occur in patients with cerebral palsy. The patient also had some evidence of sleep apnoea, and again this disorder also occurs with a higher frequency than expected in cerebral palsy. Finally, patients with cerebral palsy, particularly if they have a severe problem with motor functions and respirations have a lower than expected life expectancy. The evidence is that this patient's gradual decline and eventual death, from respiratory failure, was a manifestation of the underlying disease of the brain rather than the treatment he received. Quite to the contrary, the notes . .. . .... . . 8 indicate that his doctors did everything they could to help him, short of admitting him to intensive care for long-term assisted ventilation. [19] From a pharmacological perspective, Professor Carl Burgess, Professor of Medicine and Clinical Pharmacology, gave his advice as to the nature of the deceased's treatment at Palmerston North Hospital, and he stated, inter alia, as follows: During his stay he had a number of respiratory arrests, these initially responded to benztropine and he was placed on the coronary care unit. On each occasion his oxygen saturation decreased markedly before he stopped breathing. Advice was sought from the intensive Care Consultants at Palmerston North Hospital and from consultants from Wellington Hospital. A number of suggestions were made, but no improvement was seen. His baclofen dose had been increased back to his pre- admission level on 14/11/07 (admitted 12/11/07). The claimant developed fever, and signs of infection, he was treated with antibiotics and at times a nasopharyngeal or oropharyngeal tube was placed to assist his respiration. There was increasing difficulty in getting him to have adequate fluid and food intake. He died on 25/11/07. Professor Burgess further stated: I believe his death was due to complications of his cerebral palsy, with particular reference to respiratory obstruction and complications from that disorder. [20] The third aspect of the deceased's treatment was considered by Dr Peter Martin, Respiratory Physician, and his conclusion on the evidence was as follows: Jali Gibbs-Love presented a very challenging treatment situation. He had severe neurological impairment and it is documented that this had been deteriorating for at east 11/2 years before his final admission. There was significant difficulty in controlling the neurological symptoms with medication because all of these medications carried adverse effects and in particular the possibility of depression of breathing. As discussed above, Jali Gibbs-Love had been deteriorating for at least a year and a half and the reason or this admission was inability of those caring for him in the community to provide adequate relief of his symptoms. In particular there was concern about difficulties with breathing and whether this was caused by the excessive spasm of the muscles, thus obstructing the breathing passages or by side effects from some of the medications given to control the neurological problems. The in hospital stay was complicated and appears to have been managed with care and meticulous attention to the potential adverse effects of mediation. As such the final outcome represented the natural history of this distressing disorder, in a situation where it had not been possible to adequately control this with medications. 9 [21] Finally, there is the report of Dr Rutherford, Pathologist, who had full particulars of the history as well as the post-mortem, and in his report for the Coroner he commented as follows: The clinical and pathological evidence support the view that Mr Gibbs-Love died . . . . .. . " . . from airway obstruction due to hyperextension of the neck from spasm of the neck muscles. This was essentially secondary to longstanding cerebral palsy which had been treated by baclofen. His medication had been recently changed to dantrium out when it became apparent that this was of limited success his original medication was reinstated. It is of note that he started to suffer the neck spasms some years previously, the first spasm to cause him to go unconscious being in July 2007; this was before the introduction of dantrium. Whilst it might be argued that the change in medication permitted the neck spasms to worsen, there appears to be historical evidence that the neck spasms were worsening in any case and that the attempt to change medication was a response to this already deteriorating situation. Thus. The worsening neck spasms resulting in airways obstruction cannot be clearly attributed to alteration in medical management. Given this, the cause of death is best recorded as respiratory arrest from airways obstruction secondary to cervical musculature spasm due to cerebral palsy. (22] I have carefully considered the evidence and find that there is no causal nexus between the treatment which the deceased received at Palmerston North Hospital and his death. [23] There is simply no evidence which would suggest that any changes to medication, reduction of dosage or withdrawal of medication, played any causative part in the deterioration of the deceased's condition over the last 48 hours of his life, and the unqualified assertions of the deceased's mother must be simply recognised as that and cannot displace the specialist medical opinion which has been presented. [24] Whilst it is not necessarily a ground of appeal, save for Mrs Love contending that the whole issue should be referred back to the Corporation for it to carry out a more detailed investigation, I find that the investigation which the Corporation did carry out was more than satisfactory and more than satisfied the requirements contained in Section 57 of the Act. It investigated the claim to the extent necessary in order for it to provide a clear pathway to enable an informed decision. [25] The deceased was at all times under careful and close supervision, and the respiratory arrest, which was the ultimate cause of his death, was a condition which . .... ... .. ... . .. . . ... ... . 10 had been building over the days leading to his death, and it was the situation that the spasms caused by the cerebral palsy were not able to be controlled. [26] Accordingly, I find on the facts that there is no evidence that any treatment carried out by any medical personnel at Palmerston North Hospital, either by acts of commission or omission, caused or contributed to the death of the deceased, and this being the case, the statutory requirement of causation cannot be established and therefore there can be no cover in those circumstances. This appeal is therefore dismissed. DATED this 23 day of JURY 2010 M J Beattie District Court Judge