Estate of De La Haye v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 33 /2010 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 LEIGH DE LA HAYE (Al 10/06) Appellant AND THE ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 10 February 2010 APPEARANCES Mr M Darke, Advocate for Appellant. Mr D Tui, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 6 April; 2005, whereby it declined to grant cover to the appellant for personal injury sustained by medical misadventure, being medical error. The respondent's decision was made on the basis that there was no evidence to suggest that there had been a failure by any health professional involved in the appellant's treatment to observe the standard of skill and care reasonably to be expected in the circumstances. 2] The claim for cover as originally lodged contended that there was medical error on the part of the appellant's then GP, Dr Sheryl Barnes, and two medical professionals employed by the Wanganui District Health Board, namely, Dr Mohammed Al-Hindawi, 10/06 (pg) 2 Radiologist, and Dr B Doolabh, Obstetrician and Gynaecologist. The Board elected not to be separately represented at the Appeal Hearing. [3] When the matter reached the stage of the hearing of the appeal, Mr Darke advised that the appellant was not pursuing any claim of medical error against Dr Barnes, and the primary allegation of error was that made against Dr Al-Hindawi, the Radiologist, and to a lesser extent, Dr Doolabh. [4] It should be noted at this time that the claimed personal injury was the loss of opportunity of early treatment of a cancerous condition in the appellant's right kidney. The claim is that if cysts attached to the appellant's right kidney, which had been identified by ultrasound in December 1997, had been followed up and further investigated, then the renal carcinoma with which the appellant was diagnosed in October 2004, could have been prevented. By the time it was diagnosed in October 2004 it was determined as being incurable, and as a consequence of which the appellant died on 10 February 2005. [5] The background facts relevant to the issue in this appeal may be stated as follows: In 1997 the deceased, then aged 26 years, consulted her GP, Dr Sheryl Barnes because of the recurrent episodes of urinary frequency. She also complained of ongoing dyspaerunia. Abdominal examination by Dr Barnes revealed nothing and she therefore referred the deceased to the O & G department of Wanganui Hospital for further investigation, and in particular pelvic ultrasound. The deceased underwent an ultrasound scan at Wanganui Hospital on 8 December 1997. That ultrasound scan was interpreted and commented on by Dr Mohammed Al-Hindawi in a report to Dr Barnes shortly thereafter. The relevant part of Dr Al-Hindawi's report was the identification of multiple cysts seen within the upper and mid pole of the right kidney. There was nothing unremarkable about the left kidney. Consequent upon that ultrasound report Dr Barnes referred the deceased to the O and G Department of Good Health Wanganui, where she was seen and examined by Or Doolabh in January 1998. 3 Dr Doolabh reported to Dr Barnes on 23 January 1998, and the content of that report seems to be wholly taken up with the deceased's difficulty in conceiving. Dr Doolabh obtained an X-ray of the abdomen and pelvis which were normal and the deceased was put on treatment for her constipation which was considered as possibly being the cause of her problems. There is no mention of the ultrasound scan findings in Dr Doolabh's report. The deceased continued to see Dr Barnes from time to time over the next six years for a variety of matters, but not again for the problems which had concerned her throughout 1997. The last time the deceased saw Dr Barnes was in April 2004, when she complained of feeling anxious and with nausea. . The deceased changed from seeing Dr Barnes to seeing Dr N K de Zoysa, who had previously been treating her husband. She first saw Dr de Zoysa on 1 July 2004. Dr de Zoysa carried out some tests and identified her as being anaemic and which indicated an inflammation/infection and blood dysfunction. To quote Dr de Zoysa's word, he "felt something serious was going on". On 7 July 2004 the deceased was admitted to Wanganui Hospital where a scan of her abdomen identified right kidney abnormalities. The deceased was referred to Mr Gerrard Bonnet, Consultant Surgeon at Good Health Wanganui, and he ordered a CT scan which she had on 12 August 2004. That scan indicated the possibility of a solid lesion of the kidney on the right side. Mr Bonnet ordered a further scan, which took some time to achieve because the deceased missed two appointments for same. 4 The CT scan was carried out on 23 September 2004 and according to Mr Bonnet it was inconclusive. . Mr Bonnet therefore organised a laparotomy in October 2004 and according to Mr Bonnet, that laparotomy identified an inoperable tumour, large lymph nodes and a large renal mass. Mr Bonnet stated that the deceased had metastatic renal cell carcinoma. . On 2 December 2004 the deceased lodged a claim for cover with the Corporation, where the claim was stated to be for undiagnosed kidney cancer with secondaries. . The claim was signed off by Or de Zoysa. . A follow-up Treatment Details Report of the deceased stated that the medical error occurred in December 1997 when the cysts identified on her kidney were not followed up and that she was subsequently diagnosed with terminal carcinoma of the right kidney, which had progressed, she claimed, from those cysts. The deceased's claim was administered by the Corporation's Medical Misadventure Advisory Unit, and it sought independent reports from specialists once it had received reports from Dr Barnes, Dr Doolabh and Mr Bonnet The principal report obtained prior to making a decision was that obtained from Dr Alan Gray, a consultant in cancer medicine and also a member of the Royal Australian and New Zealand College of Radiologists. Dr Gray provided an eleven-page report and the bottom line of which was that while there may have been problems with communication and interpretation in the medical records, he could find no significant medical error that would have made a difference to the deceased. Following receipt of Dr Gray's report, the respondent issued its decision of 6 April 2005, to decline cover. That decision letter had the Medical 5 Misadventure Unit report attached. That report stated that there was no evidence of a failure by any of the health professionals involved in treatment of the deceased to observe a standard of skill and care reasonably to be expected in the circumstances The deceased's estate sought a review of that decision and the Review Hearing took place on 21 November 2005. For the purposes of that Review Hearing the Corporation had obtained a report from Professor Buckenham, Radiologist, and Dr David Henry, General Practitioner, and for the deceased a report was presented from Dr De Zoysa. In her decision dated 1 December 2005, the Reviwer, Mrs B H Archer, ruled that the weight of evidence does not establish that a personal injury was sustained as a result of medical treatment. in elaboration of that, she stated in her decision as follows: It is understandable, with the knowledge that an abnormality was present at ultrasound scan in 1997 that Mr de la Haye considers with follow up the outcome for his wife may have been different However, to make a finding that that Ms de la Haye suffered a personal injury, would require clear evidence that there was correlation with the right renal cancer and the cysts present at ultrasound in 1997. Having considered all the medical evidence I find this cannot be said to be a probability therefore the required onus is not satisfied. For the purposes of the appeal to this Court, no further medical evidence has been introduced. [6] As earlier noted, it is now the contention on behalf of the deceased that the December 1997 ultrasound report was less than satisfactory and that medical professionals at Good Health Wanganui thereafter failed to follow that up by further investigation and that the cysts that were there identified developed into the renal cell carcinoma which was diagnosed in October 2004, and from which the deceased died some four months later. 7] The evidence relating to the events of late 1997 and early 1998 were that the deceased had had a history of problems going back some years, and when Dr Barnes saw her in June 1997 she noted that the deceased advised her that she had been suffering 6 dyspaerunia for some months. Dr Barnes arranged for the pelvic ultrasound scan at Wanganui Hospital, that ultrasound scan was carried out on 8 December 1997 and the relevant part of Dr Al Hindawi's report of that scan was as follows: Multiple cysts are seen within the upper and mid pole of the Rt kidney (approximately 4 in number) with diameters between 2 and 4 cm. Renal collecting systems are not dilated. Lt kidney appears unremarkable That report further stated that no follow-up was requested. [8] It is the case that Dr Barnes referred the deceased to Good Health Wanganui Hospital O & G Department and reference to that ultrasound scan was in the referral, but it is not something to which Dr Doolabh referred to in his report back to Dr Barnes of 23 January 1998. [9] As earlier noted, the prime concern seemed to be the deceased's possible infertility and this was one of the main purposes of Dr Doolabh's involvement. Although an X-ray of the deceased's abdomen and pelvis was taken, this seemed to have been in response to an earlier record which had mentioned the attachment of filch clips for sterilisation. The X- ray was taken to see whether in fact filch clips on the libation tubes could be identified. None was seen. Dr Doolabh considered that the deceased's main problem was constipation and he prescribed a three month course of laxatives to treat that problem. As far as the evidence is concerned, that seems to be the end of Dr Doolabh's treatment of the deceased. [10] The advice from Dr Barnes is that the deceased never again sought treatment, etc., for the constipation and other matters for which the ultrasound had been sought, although Or Barnes' medical records indicated a substantial number of appointments by the deceased over the next six years. None of those appointments were for matters which could be said to be a forerunner of the medical problem that confronted the deceased in October 2004. [11] As earlier noted, Mr Bonnet, General Surgeon, carried out a laparotomy with open biopsies on 4 October 2004 and in his words, "it was quite obvious that the patient had an inoperable tumour, large lymph nodes and large renal mass. Open biopsies proved metastatic renal cell carcinoma." 7 [12] The appellant's then condition was referred to a Mr Crisp, Neurologist, who determined that the deceased's medical condition was inoperable. It was then that the deceased was placed in palliative care until her death. [13] The two specialists who have provided reports from a medical misadventure perspective, have been Dr Gray and Professor Buckenham. [14] it is to be remembered that when Dr Gray made his report, he having obtained full particulars from Dr Barnes of her association with the deceased, Dr Barnes' own conduct was in the frame for medical error, and his comment in relation to Dr Barnes' actions were as follows: In my review of the notes, there was nothing to suggest a renal disorder in her consultations with Dr Barnes; her urinary symptoms were fully compatible with a longstanding bladder problem. The discovery of cysts on the right kidney was incidental to the request for an ultrasound scan of the pelvis. Not until her last consultation with Dr Barnes on 08/04/2004 did she complain of symptoms which could be attributed to her right kidney, that was, anxiety, nausea in the evening, & tiredness not relieved with sleep. These were the symptoms of advancing cancer, but were attributed to stress, to her young family, & reducing doses [countdown?] of her maintenance methadone. After that she saw Dr De Zoysa. In the 7 years from 1997 to 2004 she saw Dr Barnes a total of 34 times by my tally, that is 5 times per year. But apart from the last consultation I cannot find any reference to problems that might have had anything to do with a developing renal cancer. In summary - The patient had asymptomatic renal cysts of her right kidney diagnosed incidentally by ultrasound scan in 1997. 15] Because it has relevance in relation to the actions or omissions of Dr Al-Hindawi, Radiologist, I refer to Dr Gray's assessment of that ultrasound report and whether Dr Barnes should have followed it up. Dr Gray advised that simple (benign cysts) are the most common cystic abnormality encountered in human kidneys and may be solitary or multiple. He went on to state: In the vast majority of cases- the simple cysts are asymptomatic, & the major problem becomes one of differentiating between simple cyst & malignant mass - the coincidence of simple cyst & tumour in the same kidney is 2 to 4%. Nonetheless it is very uncommon to find neoplasm arising within a cyst and with modern diagnostic 8 techniques, the risk of failure to recognise cancer in association with a cyst is quite small. Therefore, in asymptomatic patients with a few small and unequivocal simple cysts discovered by C/T or urography, further evaluation, except perhaps for periodic follow up by sonography (ultrasound scan), is probably not indicated. [16] Dr Gray then referred to the differentiation classification developed by a Dr Bosniak, whereby cystic renal lesions were divided into four categories. Or Gray summarised the position as follows: Asymptomatic cysts of the right kidney were diagnosed incidentally on an ultrasound scan in December 1997. The report, signed by a radiologist simply describes 4 cysts in the right kidney, and makes no particular comment about the cysts and makes no recommendations for follow-up. It would be reasonable for clinicians to assume these are simple cysts [Bosniak grade 1] which are common, can be reliably diagnosed by ultrasound scan, and in view of the lack of symptoms, then, according to the literature above they do not require follow up. The risk of malignant tumour being present in a simple grade 1 cyst is less than 1%. I cannot find any reference in the medical notes to symptoms that could be considered symptomatic of a renal lesion prior to 2004. [17] Dr Gray's final word was that if renal cancer had been present, and he found this highly unlikely, it would have been undetectable with radiological techniques because it would most likely have been very small. [18] The next report is that of Professor T Buckenham, a Radiologist associated with Christchurch Hospital. For the purposes of his report, Professor Buckenham had the actual ultrasound imaging from December 1997 to consider and interpret. His comments on that imaging are as follows: Findings: ... There is possible septation or the presence of three separate cysts and two echoegenic foci seen in the wall of these cysts. These foci do not show posterior acoustic shadowing. The left kidney appears normal. No other abnormality is seen. Conclusion: The appearances demonstrate complex cyst formation in the right kidney. 9 Comment: ... These cysts possibly contain septa and definitely echoegenic foci Cysts like this are unusual in patients of this age. The cysts should therefore have been reported as complex cysts. The significance of a complex cyst is discussed under point 8 Professor Buckenham also had the ultrasound scan taken in July 2004 in which, he stated, there was shown to be the appearances of a cystic neoplasm. [19] Professor Buckenham was then asked to consider the question of medical error from the standpoint of the ultrasound report of December 1997. He stated as follows: The significance of renal cysts diagnosed as an incidental finding in investigating other conditions, as was the case with Miss De La Haye, is that cysts with certain radiological characteristics may have malignant potential. At one end of the spectrum there are simple cysts which are entirely benign. For a cyst to fit the description of simple, it must be unilocular, anechoic, non-calcified and show posterior acoustic enhancement. If a cyst fits this characteristic, it is very unlikely to be of significance. If a cyst is septated, as is possible in this case, it is no longer a simple cyst. If it is markedly septated with heavy calcification where the septa are thickened and if there are soft tissue nodules, the likelihood of malignancy is increased. Classification of renal cysts based on the appearance in CT is called the Bosniak classification. The cysts seen in Miss De La Haye's case appear to have two features that separate them from simple cysts: firstly they are possibly septated, and there are focal areas of echogenicity which may represent calcification. Extrapolationese appearances to the Bosniak classification, this would be the equivalent of a Bosniak 2 lesion. Bosniak 2 lesions are further divided into Bosniak 2 and Bosniak 2F, the F indicating the need for follow-up. It is not normal practice to follow-up Bosniak 2 lesions. It is the responsibility of the radiologist to indicate to the requesting clinician (in this case Dr Barnes, the general practitioner), that if cysts are not simple, a CT scan to allow the accurate Bosniak classification should be suggested determining whether follow-up would be necessary. Without CT, the question of whether follow-up was necessary in this case is difficult to answer. It is also difficult to know whether the cystic lesion in the right kidney ultimately became the inoperable neoplasm Miss De La Haye presented with. In my opinion, reporting the right renal abnormality as cysts rather than complicated cysts was not optimal, but does not represent medical error, as: (1) These are likely to represent Bosniak 2 lesions and therefore would not require follow-up. Had they been identified as complex cysts, it is unlikely that serial imaging 10 follow-up would have been appropriate, allowing early detection of a renal neoplasm irrespective of whether it arose from the cystic lesion or not. (2) Given the length of time between the cystic lesion and the right renal neoplasm, it is impossible to determine whether the cystic lesion seen on the original ultrasound was at all related to the subsequent neoplasm. In my opinion, therefore, there is no evidence of medical error. [20] Professor Buckenham summarised the position as follows: The abnormality found on the ultrasound, although under-reported as multiple cysts when in fact they are complex cysts, did not fulfil the criteria of a lesion requiring follow- up. It is unclear as to whether these cysts in the right kidney ultimately evolved into a neoplasm. Therefore in my opinion there is no evidence of medical error. [21] I have previously identified that the Medical Misadventure Unit also obtained the opinion of Dr David Henry, a general practitioner, and his report is wholly concerning the situation of Dr Barnes and its relevance to the issues which are alive in this appeal, is minimal. [22] The final medical evidence comes from Dr de Zoysa. He provided an opinion in July 2005 that if the cancerous condition had been diagnosed by April 2004, the deceased would still be alive, as the cancer would probably have been confined to the right kidney and an operation for removal of that kidney would have cured her and even if it had spread, radiotherapy and/or chemotherapy would have cured her or prolonged her life. He further considered that the circumstances of the ultrasound of December 1997 ought to have given rise to a consideration of malignancy, and that in his opinion the appellant had commenced to develop right kidney malignancy by December 1997. A CT scan at that time would have identified such a diagnosis [23] Mr Darke, Advocate for the Appellant, provided lengthy written submissions in support of the appeal, the main points of which were as follows: The opinion of Dr Gray must be tempered by the knowledge that he was of the belief that the cysts identified in the ultrasound were Bosniak Class 1, whereas in fact they were Class 2 as identified by Professor Buckenham. The diagnostic imaging report was too vague in that it gave no indication as to the type of cyst and where Class 2 cysts do require further investigation. 11 . The O & G Unit at Good Health Wanganui in January 1998, (Dr Doolabh) should have investigated matters further, as the deceased was still presenting with symptoms some two months after the ultrasound. The O & G Unit failed to follow-up in three months as they indicated they would do. . There is clear error in the failure by the radiologist to properly identify the nature of the cysts and there was a failure on the part of Dr Doolabh to carry out further investigation when the deceased was still presenting with the same problems. The type of cyst is one that can develop into a cancerous tumour. It would be a remarkable coincidence that a cancerous tumour would develop in the same kidney as that where potentially malignant cysts were discovered some five to six years earlier. It defies belief that they could be unrelated. If the deceased's malignant cyst had been identified sooner, proper treatment at the time would have either cured or significantly lengthened her life. [24] Mr Tui, Counsel for the Respondent, submitted as follows: . That the only act or omission which could be considered as possibly being medical error was that made in the ultrasound report. He submitted that while it must be accepted that the report was barely adequate in that it did not classify the cysts as simple or complex, any such error had not been causative of the circumstances leading to the deceased's death. The suggestion that the deceased did in fact have a cancerous tumour in December 1997 and it was that that ultimately caused her death some 7 years later, is making a leap which the evidence does not allow. There is simply no evidence that the deceased did have a cancerous cyst or that such a condition would have been identified if any further investigation had been carried out on her right kidney in December 1997/January 1998 12 Professor Buckenham must be considered the expert in this field and his advice was that the correct interpretation of the ultrasound would not have caused a direction for follow-up investigation. No causal nexus could be established between any alleged medical error and the subsequent injury of loss of treatment opportunity. DECISION [25] The deceased's claim for cover requires the establishment of certain statutory criteria. The first is, of course, that a personal injury has been suffered, and secondly that that injury has been caused by an act which, as a matter of both fact and law, can be said to be an act of medical error. [26] The statutory definition of medical error, as contained in Section 33 of the Act, as it then was, means: "The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." By virtue of Section 33(3)(e), it is recognised that medical error can arise from circumstances relating to the diagnosis of a person's medical condition. [27] In the present case it is contended that the radiology report of the ultrasound scan constituted an act of medical error in that the radiologist failed to categorise or identify the type of cyst which that scan had disclosed as being present on the deceased's right kidney. (28] It is further contended that as and when the deceased was seen by Dr Doolabh in January 1998, and in circumstances where it must be taken that he had the report of that scan, and yet he chose not to make any further investigation of those cysts such as by arranging a CT scan, or indeed identifying that the deceased may require further follow-up attention. [29] Referring first to the ultrasound report of Dr Al-Hindawi, the comments made by both Dr Gray and Professor Buckenham indicate that the failure to give the cysts any 13 classification could only be taken by a medical person reading that report as being that the cysts were simple cysts of a benign character. [30] According to Professor Buckenham that is not in fact what that ultrasound disclosed and he advised that the cysts demonstrated a complex formation and should have been reported as complex cysts. Professor Buckenham then set out what he considered ought to have been the classification, having regard to the Bosniak scale, but it is his advice that the cysts presented were Bosniak 2 lesions, and would not have been cysts that required follow-up. It was therefore Professor Buckenham's advice that the ultrasound report was not a report which evidenced medical error, even though it must be recognised as being "barely adequate" as stated by Dr Gray. [31] Even if it were to be said that the ultrasound report constituted a misdiagnosis in circumstances where it could be said that this diagnosis was as a result of medical error, the error would only be relevant if it was established as being causative of a personal injury. [32] In the case of the deceased, I have already indicated that the personal injury would be that which occurred because of the loss of opportunity to have the malignant tumour treated earlier than it was, by virtue of it only coming to light in October 2004. [33] In terms of causation, it would have to be established that the ultrasound report in fact ought to have indicated a category of cyst which required to be followed up and treated in 1997/1998 [34] The evidence of Mr Buckenham is that it is impossible to determine whether the cystic lesion seen on the original ultrasound was at all related to the subsequent neoplasm identified in October 2004. It is his advice that the renal neoplasm was not present at the time of the ultrasound and he said that it was unclear whether any such cyst ultimately evolved into the neoplasm, which was the malignant tumour. [35] Or Gray has also commented on the deceased's condition subsequent to that ultrasound and he had Dr Barnes' notes to refer to, and it was his advice that there was nothing in the deceased's subsequent consultations with Or Barnes over the next few years, which numbered 34 occasions, which would suggest that the deceased was suffering from a renal disorder, or that she had anything other than a benign cyst in her right kidney. 14 [36] Dr Gray noted that it was not until the deceased consulted Dr Barnes in April 2004 that she complained of symptoms which could be attributed to right kidney problems, and it is the situation that when Dr de Zoysa took over and obtained a report, evidence of a serious problem in the right kidney was identified. [37] It is therefore the position, as i find it, on the evidence, that the deceased cannot be said to have been suffering from a medical condition which was one which was a malignant cyst of a type on the Bosniak scale which would have required attention back in early 1998 [38] From that finding it must be the case that there is no causative link between any omission to sufficiently identify the nature of the cyst in the first ultrasound scan, and the later onset of a metastatic renal cell carcinoma in 2004. Even Dr de Zoysa states that it was his overall impression that the deceased had probably been developing the illness caused by this renal carcinoma for a matter of months. [39] The fact that it would have been developing for months is quite different from the suggestion of it developing over a period of six years or so. [40] The Court has received no evidence which would indicate that a malignant cyst would exist without symptoms for some six years before becoming symptomatic. Furthermore, the Court notes that the chance of a cyst of the type which was in fact identified later becoming malignant and resulting in the situation that did occur, were less than 1%. [41] Accordingly, I find both as a matter of fact and law, that there is no causative link between any act or omission on the part of either the radiologist or Dr Doolabh in relation to the cysts identified on the deceased's right kidney in December 1997 and the subsequent identification of a malignant tumour in October 2004. There is simply no evidence to suggest that a further in depth investigation of that cyst in 1998 would have identified the type of cyst which required immediate treatment, that is a Category 3 or 4 cyst on the Bosniak scale. [42] For the foregoing reasons, therefore, I find that the deceased cannot establish the necessary criteria either of medical error or alternatively medical error which was causative of personal injury, which would enable cover for personal injury by medical misadventure to be had. 15 [43] This appeal is therefore dismissed. DATED this 25th day of February 2010 M J Beattie District Court Judge