Estate of Versey v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 175/2005 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section152 of the Act BETWEEN THE ESTATE OF RACHEL VERSEY (AI 340/04) Appellant AND ACCIDENT COMPENSATION CORPORATION First Respondent AND LANCE LAWLER of Lower Hutt, Registered Medical Practitioner. Second Respondent HEARD at WELLINGTON on 20 May 2005 APPEARANCES Mr D G Dewar and Ms A McIntosh, Counsel for Appellant. Mr A D Barnett, Counsel for First Respondent. Ms J Gibson, Counsel for Second Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the First Respondent’s decision of 19 January 2002, whereby it declined a claim for cover lodged by the late Rachel Versey (hereinafter referred to as ‘the deceased’) for personal injury caused by medical misadventure and being medical error committed by the Second Respondent, a Medical Practitioner, carrying on practice as a Radiologist. [2] The contention made by the deceased is that Dr Lawler misdiagnosed the appellant’s medical condition at the time he carried out ultrasound on her right ankle and that he orally informed her of that misdiagnosis at the time. It is further contended on behalf of the deceased that that negligent misdiagnosis resulted in a delay in 340.04 (pg) 2 obtaining proper treatment for the appellant and that delay constituted the personal injury for which cover was claimed. Both respondents contend that there was no medical error on the part of Dr Lawler and further, the appellant did not suffer any personal injury within the meaning of the Act as a consequence of any delay in treatment that may have occurred. [3] The background facts relevant to the determination of this issue may be stated as follows: • In June 2000 the deceased, then a 28 year old schoolteacher, suffered a twisted or sprained ankle at work. She did not seek medical attention at that time. • In August 2000 the appellant consulted a GP at the Ropata Medical Centre, Lower Hutt, complaining of tiredness and nausea, but did not mention her ankle. • The deceased returned to the Medical Centre on 22 August and was seen by Dr Barwell, who did obtain a history of an ankle sprain in June. He examined her foot and noticed that it was sore and swollen. The medial aspect of the ankle was tender. Dr Barwell prescribed physiotherapy and an anti-inflammatory agent. • The appellant underwent a course of physiotherapy at Avalon Physiotherapy Clinic, 10 appointments in all. • The physiotherapy had some temporary remedial effect. • The deceased returned to the Medical Centre on 9 November 2000 with continued pain in her right foot and ankle. She was seen by Dr Yardley who found her ankle to be tender and slightly swollen. He arranged an X-ray. • The X-ray was carried out on 13 November 2000 at Pacific Radiology and the X-ray was reported on by Dr Lawler, who reported that her right foot and heel were normal. • On 30 November the deceased again returned to the Medical Centre and was there seen by Dr Masters, who identified soft tissue swelling on the medial aspect of the right ankle. He questioned the diagnosis of ankle sprain and ordered an ultrasound on the ankle. • The ultrasound was carried out on 5 December 2000 at Pacific Radiology and was reported on by Dr Lawler. 340.04 (pg) 3 • Dr Lawler reported in writing to Dr Masters on 5 December, his report stating as follows: “Ultrasound Right Foot Indication Pain and swelling medially following trauma several months ago Technique Linear 12-5 MHz Findings Within the muscle belly of Abductor hallicus there is a disorganized soft tissue density mass which is responsible for the palpable abnormality. It appears to the avascular, contains some echogenic interfaces peripherally. The origin and insertion tendons are intact. No other soft tissue abnormality is noted. Comment ? Early myositis ossificans” • At his attendance on the deceased on 30 November 2000 Dr Masters advised her to consult Mr Andrew Simmonds, Orthopaedic Surgeon, and he wrote a letter of referral to Mr Simmonds on that date. Dr Masters advised the deceased to make an appointment with Mr Simmonds. • The only information the deceased had about the ultrasound result was that which Dr Lawler advised her. This is an area in dispute and will be referred to subsequently, suffice to say that the deceased did not understand that her appointment with Mr Simmonds was a matter of urgency. • The deceased attended on Mr Simmonds on 14 February 2001 at which time she was displaying a sizeable, warm solid tumour in her right heel. Mr Simmonds identified a significant soft tissue tumour which needed urgent treatment. He arranged a biopsy and an MRI scan. • An MRI scan was carried out on 19 February which identified a soft tissue mass on the medial aspect of the heel. • The biopsy report diagnosed a clear cell sarcoma (malignant melanoma of soft plaques) indications were typical of synovial sarcoma. • Following receipt of the MRI scan and the biopsy report Mr Simmonds referred the deceased on to a colleague in Auckland for further consideration and assessment of treatment. 340.04 (pg) 4 • The next step was to identify whether the condition had spread and in particular, into the chest area. • By 19 March 2001 the disease was identified as having spread to her chest with the likelihood that her condition was incurable. • The deceased was referred to the Wellington Cancer Centre for palliative treatment. • In April 2001 the deceased lodged a claim for cover for medical misadventure, being the misdiagnosis of a synovial sarcoma of her right foot. • The deceased died on 19 August 2001 from this condition. • The deceased’s claim was referred to the First Respondent’s Medical Misadventure Advisory Unit and it sought reports from all treating health professionals who had been involved with the appellant’s treatment from August 2000 onwards. • In November 2001 the Medical Misadventure Unit sought the opinion of Associate Professor Graham Stevens, Clinical and Radiation Oncologist at the University of Otago. He examined the actions of all treating health professionals who had been involved with the deceased’s treatment, including Dr Lawler, and he gave his advice accordingly. • The MMU also sought and obtained the opinion of Dr Elizabeth Williams, General Practitioner, in relation to the actions of the various General Practitioners whom the deceased had consulted. Her advice was that no medical error could be found in any of the actions of those general practitioners. • Consequent upon that advice the respondent issued its decision on 19 January 2002 to the effect that no cover could be had as no medical error had been identified. • The deceased’s Estate sought a review of this decision and a Review Hearing took place on 10 December 2002 at which evidence was received from Dr Doyle, Associate Professor of Radiology, as well as the deceased’s husband. • A decision on the substantive issue was not delivered until 31 May 2004 by the Reviewer as there was initially a procedural issue which went on appeal to the District Court. 340.04 (pg) 5 • The Reviewer ultimately issued his decision on 31 May 2004, which decision included consideration of a report from Dr Doyle and a report from Professor Tim Buckenham, Consultant Radiologist. • The essence of the Review Decision was that a correct diagnosis by Dr Lawler would not have altered the outcome. The Reviewer therefore determined that no personal injury to the deceased could be established. The Reviewer did not make any finding on whether there had been any medical error on the part of Dr Lawler. [4] For the purposes of the appeal to this Court the Court has received affidavit evidence from Dr Lawler and from a Deborah Mackintosh, Sonographer, who carried out the ultrasound on the deceased on 5 December 2000. The Court has also received several affidavits from friends of the deceased and from the deceased’s husband relating to the deceased’s understanding of the result of her ultrasound examination by Dr Lawler. [5] This appeal, as it was presented, requires the Court to determine two issues, the second issue being required to be determined if the first issue is determined in favour of the deceased. [6] That first issue is whether the deceased suffered personal injury, that is a physical injury within the meaning of the Act, as a consequence of some act or omission of a treating health professional. If the answer to that question is in the affirmative, then the act or omission of the treating health professional needs to be examined to see whether it amounts to medical error which was causative of the personal injury found to have been suffered. [7] The deceased suffered death as a consequence of the disease which she had contracted. It is not contended that the cancerous condition which brought about the death of the deceased was in any way caused by any act or omission of Dr Lawler. Rather, it is contended that a diagnosis of the condition in December 2000 would have made a difference in the appellant’s quality of life and her lifespan may have been enhanced and lengthened. [8] It has been accepted in the medical misadventure field that the shortening of life because of the late diagnosis and the belated application of suitable treatment can 340.04 (pg) 6 amount to a personal injury, even if the ultimate injury, namely death, could not have been avoided. [9] The inquiry therefore in the case of the deceased is whether the evidence establishes that that state of affairs did arise, because it is that which would be the personal injury for which cover could be claimed. [10] The Court has received opinion from two oncologists on this question. Firstly, from Dr D A Hamilton, Consultant Oncologist at the Wellington Cancer Centre. Dr Hamilton first noted that soft tissue sarcomas are uncommon tumours and often do not produce symptoms until quite advanced. He then went on to state as follows: “This young woman clearly has had a delay in diagnosis of an uncommon tumour in an unusual location. The natural history of synovial sarcoma’s, or amelanotic melanomas is very poor at the best of times, and while the delay in diagnosis has obviously had significant distressing effects, it is far from certain that an earlier diagnosis would have changed the ultimate prognosis.” [11] The second opinion is that provided by Associate Professor Graham Stevens, Clinical and Radiation Oncologist at the University of Otago. In the course of his advice he stated as follows: “The prognosis of synovial sarcomas is poor unless they are resected at a very early stage. I agree with Dr Hamilton that dissemination of the synovial sarcoma, leading to an ultimately fatal outcome, was a distinct possibility from the time when Mrs Versey presented to Dr Barwell in August 2000. Even if the correct diagnosis had been made at that time, we are left with the uncertainty expressed so eloquently by Mr Versey “we will never know if timely diagnosis may have only cost her a foot instead of her life”. In my opinion, knowledge of the correct diagnosis in December 2000 would not have altered the fatal outcome.” [12] A contrary opinion was expressed by Dr Elizabeth Williams when she stated as follows: “Rachel Versey was finally diagnosed as having a severe malignancy on 14 February 2001 after presenting with a history of strain to the foot in August 2000. Her prognosis on earlier treatment is far from certain to have been better (Dr Hamilton’s letter dated 30.7.01) but could therapy have been instituted at an earlier date it is possible that her condition would have progressed more slowly.” 340.04 (pg) 7 I take Dr Williams to be simply giving her view based on the opinion expressed by Dr Hamilton, but in any event, she is only expressing it as a possibility and I find that that does not meet the test of the balance of probabilities which would be required to be satisfied. [13] Having regard to the expert opinion that has been provided, I find it is the case that at the time the ultrasound was taken in December 2000, the die was cast. Because of the progression of the disease it was not likely to have been altered by any earlier attention than that which was received from mid-February 2001 onwards and no treatment could have been provided to the deceased which would have altered the tragic course of events which did occur. [14] That finding, in essence, is a finding that no personal injury was suffered by the deceased as a consequence of the misdiagnosis that occurred in December, that misdiagnosis being the act of medical error asserted on behalf of the deceased as being the medical misadventure. In those circumstances, it is not necessary for the determination of this appeal to consider medical error, but I propose to do so in the event that the finding I have made above is challenged. [15] Dr Lawler’s report indicated a level of uncertainty as to the diagnosis, and the placing of a question-mark before the diagnosis indicates that it was only a provisional diagnosis of myositis ossificans, which is a condition of an inflammation of a muscle characterised by a bony deposit. [16] The circumstances leading up to the taking of the ultrasound of the deceased’s right foot were that Dr Masters completed a reference note to Pacific Radiology, which the deceased presented to the radiologist on the occasion of her appointment on 5 December 2000. That reference note provided certain clinical information from the referring doctor, which stated as follows: “Five months history of pain and swelling, medial calcaneus right foot? Related to minor trauma six months ago. On examination soft tissue swelling, medial calcaneus. Previous X-ray NAD.” [17] It is against that background that the report of Dr Lawler has been considered by two independent radiologists. Firstly, by Dr Anthony Doyle, Honorary Clinical Associate Professor of Radiology. Dr Doyle provided a report dated 12 September 2002 in which he stated, inter alia, as follows: 340.04 (pg) 8 “As far as I can tell there is no dispute about the fact that the ultrasound in Mrs Versey’s case showed a mass described by the Radiologist as “a disorganised soft tissue density mass” and that the correct diagnosis of a soft tissue sarcoma was not mentioned in the report or verbally to the patient. As in the series described in the enclosed article, we found that interpretative errors were present in 23% of the 43 patients in the bone tumour registry with soft tissue tumours for whom we had access to the ultrasound diagnosis. The reason for publishing the article was to increase awareness in the radiological community about the significance of such soft tissue masses and in particular to draw attention to the fact that soft tissue sarcoma needs to be considered in the differential diagnosis because it cannot be excluded by ultrasound alone. Prior to publication of this article, there were deficiencies in education relating to the interpretation of ultrasound of soft tissue masses both in this country and world- wide. In part, this was because the available reported experience in the literature lagged behind the wide availability of high resolution ultrasound and its application to the imaging of musculoskeletal problems, especially in Australasia. Just as in Mrs Versey’s case, almost all patients presenting with a soft tissue mass have some history of minor trauma. This can easily mislead the primary clinician into thinking that a swelling is related to haematoma or tenosynovitis (as happened in this case). It can also mislead a radiologist who has little experience with what is, in general radiological practice, a rare condition, to suggest a diagnosis of haematoma (or a similar post traumatic condition such as myositis ossificans in this case). In this case, the differential diagnosis based on the hardcopy images available does include neoplasm, including soft tissue sarcoma. We do not believe that it is possible to distinguish between benign and malignant soft tissue neoplasms of the extremities by ultrasound. There are a few rare exceptions but this case is not one of them. An ideal report would probably state that there is a solid mass present with non-specific features, the differential diagnosis including benign and malignant neoplasms.” [18] The second specialist to consider the matter was Dr Tim Buckenham, Consultant Radiologist of Christchurch and a Professor of Radiology. Dr Buckenham examined the scan itself and he then stated as follows: “Appearances on the ultrasound scan provided are not specific for either trauma, inflammation or neoplasia but would be consistent with any of these as an aetiology for the soft tissue abnormality. The radiologist is often guided by the clinical details that accompany the referral, in this case there was a history of trauma. The radiologist report did express some uncertainty associated with his diagnosis of myositis ossificans. Dr Lawler has indicated this by putting a question mark prior to the diagnosis. Given the misleading clinical presentation and the rarity of soft tissue tumours, I feel the report is satisfactory although not optimal. 340.04 (pg) 9 Other Considerations The diagnosis of soft tissue neoplasia on ultrasound is difficult and this has been accurately pointed out by Professor Doyle in his letter dated 12/09/2002. His attached article (Ultrasound of Soft Tissue masses: Pitfalls and Interpretation, Australasian Radiology 2044, 275-280) demonstrating an incorrect diagnosis rate of 23% on ultrasound imaging. The diagnosis of soft tissue tumours represents a combination of history, clinical examination and imaging. Ultrasound imaging rarely stands alone in the diagnosis of these difficult malignancies.” Dr Buckenham concluded by stating: “Overall I do not think there is evidence of medical error relating to the radiological aspects of this case.” [19] In addition to the report which Dr Doyle provided, he also gave evidence at the Review Hearing. Dr Doyle was asked to comment on a passage of his research paper “Ultrasound of Soft Tissue Masses: Pitfalls in Interpretation, which is the article he referred to in his report. In that article he states: “The most common serious interpretative error found in our review was in mistaking a tumour for a haematoma or muscle tear.” In his evidence at the Review Hearing, by way of comment on that statement, he stated as follows: “Well, both haematoma and myositis ossificans can be the result of trauma. Most patients with a soft tissue tumour do have some history of minor trauma or it may even be more major trauma. It is often the thing that leads them to examine themselves or be examined and discover that there is in fact a mass there. So it can be misleading for the clinician and the radiologist in terms of thinking that a lump that is there is related to trauma and could be a haematoma or a myositis ossificans when in actual fact it is a neoplasm – tumour – that has been sitting there and has only been noticed because the patient has had some sort of bump on the leg or something like that.” Dr Doyle was also asked by Ms Gibson to comment on the question – “It is likely, is it not, that the cancer would not have been diagnosable by a general radiologist?” Dr Doyle’s answer was – “Well you can’t diagnose a cancer on an ultrasound scan any more than you can exclude cancer. So the proper thing for radiologists to do is to say that there is a sort of mass there but they don’t know what it is.” 340.04 (pg) 10 Dr Doyle noted that a soft tissue sarcoma was something that a general radiologist would encounter very rarely and that a soft tissue sarcoma in someone of the age of the deceased would be something that they may never encounter in their career. It was very unusual. In another passage, Ms Gibson asked Dr Doyle whether he agreed or disagreed with Professor Buckenham’s opinion that there was no evidence of medical error relating to the radiological aspects of the case. Dr Doyle responded by saying that he had not been asked to consider the question of negligence, but he then stated that he did not disagree with that opinion. [20] Medical error is defined in Section 36 of the Act and means: “The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.” The definition goes on to state that an example of medical error is the failure to diagnose correctly an insured’s medical condition. It must be the case, however, that the failure to diagnose correctly has been brought about by the failure to observe a standard of care and skill to be expected at the time of making that diagnosis. [21] In the case of Dr Lawler he gave a provisional diagnosis only and his report indicates that he was uncertain. In the body of his report, that is, reporting on what the ultrasound told him, he advises of a ‘soft tissue density mass’. I take this statement to be in line with what Dr Doyle stated when he said that the proper thing for a radiologist to do was to say that there was a mass there and don’t know what it is. [22] It is the case that a clinical diagnosis would be required to determine precisely what the deceased’s condition was and the ultrasound was simply to identify what that radiological investigation disclosed. That is what Dr Lawler did and I have heard nothing that would indicate that his interpretation of the ultrasound was in error, namely, he correctly stated in his findings what the ultrasound indicated. [23] In the circumstances I find that the fact that Dr Lawler did not identify a tumour cannot be a failure to act reasonably or as was to be expected. Dr Doyle confirms that a substantial number of tumours are missed in the ultrasound picture. The fact of a misdiagnosis is not sufficient to satisfy the test for medical error. It must be established 340.04 (pg) 11 that the misdiagnosis was made as a consequence of failing to carry out the diagnosis with the proper care and skill to be expected. [24] In the circumstances, I find that the evidence of Dr Doyle and Dr Buckenham must be accepted as identifying the standard and of the fact that Dr Lawler’s actions did not fall below the standard to be expected in the circumstances. In particular I note the circumstances as being the information provided to him by Dr Masters and which, as noted by both Dr Buckenham and Dr Doyle, was likely to put him off the scent, as it were. [25] There remains one matter outstanding which needs to be considered and that is what statements or comments Dr Lawler may have made to the deceased whilst she was at his rooms. The Court has received what is technically hearsay evidence from a group of people closely connected to the deceased, including her husband, who stated that the deceased had indicated to them that the ultrasound had not identified any cancer. The statements made by those witnesses tended to confirm that Dr Lawler must have given the deceased some encouragement by way of a provisional diagnosis, and certainly from the deceased’s perspective, that the problem with her foot did not need urgent attention. [26] It is the case that the deceased and her husband and their young baby went on a Christmas holiday to the South Island, and in fact extended their stay there, so much so that the appointment which had been made with Mr Simmonds for some date at the end of January was changed to that of 14 February, so that they could extend their stay in the South Island. [27] To me, the statements made by close friends and the fact that the appointment date was changed, does indicate that the deceased had been given some comfort by something that Dr Lawler had said. [28] From Dr Lawler’s point of view, he has testified that he is always very careful about giving a diagnosis and that he usually only speaks in general terms. He stated that he would not have given any positive diagnosis, particularly when confronted with an indeterminate finding, as he was on this occasion. He stated that he always deferred to the referring doctor who would be in a better position to put all the information together, being clinical, biochemical and imaging, and come up with a working diagnosis. 340.04 (pg) 12 [29] Dr Lawler stated that the deceased’s interpretation of a reassurance from him was unfortunate and a most unintended outcome and he apologised for any action of his leading to any misunderstanding. [30] Support for Dr Lawler’s contention that he would not have given any positive diagnosis such as may have been interpreted by the deceased, comes from Deborah Mackintosh, the Sonographer who actually carried out the ultrasound. She has deposed that she was present throughout and whilst she said that she could not remember exactly what was said, she can say that at no time has she ever heard Dr Lawler say that an ultrasound result showed cancer or that it did not. She further stated that if such a statement had been made it would have been most unusual and it would have stuck in her mind. [31] From the foregoing, I conclude that Dr Lawler may have been guarded and that his indication was to the provisional diagnosis that he gave, but I am satisfied that he did not indicate in any positive way that the mass which he identified was not cancerous. It is the case, of course, that the deceased was t very concerned at her condition and no doubt she would have been particularly influenced and buoyed by any positive comment that may have been made by Dr Lawler and which she possibly read more into than was the case. [32] The issue of what Dr Lawler may or may not have said to the deceased is one which Counsel for the Estate has asserted was itself a negligent act in that it caused the deceased to not consider urgent action was required when taking the next step to see Mr Simmonds. [33] Whilst I do find that if Dr Lawler were to have made a positive and definite statement that the deceased’s condition was not cancerous, then that would have been negligent in that the evidence from the specialists make it clear that such a positive diagnosis could not be made from imaging alone, and that it would need a clinical assessment and possibly tissue analysis. I am satisfied that Dr Lawler did not give any such positive or definite diagnosis or what might be correctly described as a ‘negative’ diagnosis, that is, that cancer was excluded. I therefore find that his actions on the day he attended on the deceased did not amount to any aspect of medical error. 340.04 (pg) 13 [34] In summary, therefore, I find that the deceased was not eligible for cover under the Act as she suffered no personal injury but that in any event there was no medical error on the part of Dr Lawler. This appeal is therefore dismissed. DATED at AUCKLAND this 15th day of June 2005 M J Beattie District Court Judge 340.04 (pg)