Lunjevich v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 121 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN THELMA DAWN LUNJEVICH of Taipa Appellant (Appeal No. DCA 120/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at WHANGAREI on the 19th day of May 1998 APPEARANCES G Davis for appellant D Tui for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover in respect of a claim for medical misadventure. The appellant lodged a claim with the respondent on 27 January 1997 alleging that she underwent a tubal ligation operation on 2 January 1988 which was performed without her informed consent. The operation had taken place in the Kaitaia Hospital and was performed by Dr Elizabeth Stein, who has left New Zealand to reside in Chile. When the claim was received the respondent requested a report from Dr G Parry, an Obstetrician and Gynaecologist who saw the appellant after her 2 transfer to the Whangarei Hospital, two days after she gave birth to her daughter on 2 January 1988 by caesarean section. Dr Parry's report of 17 February 1997 states: "Thank you for your letter about Thelma with her request for ACC because of the sterilisation performed without her consent. She tells me that she was asked to sign a consent form after her caesarean section. Looking through the notes it is difficult to substantiate or deny this, however it is clear that in 1988 she had a caesarean section and sterilisation apparently for fetal distress and she was subsequently transferred to Whangarei Hospital and it is clear from the notes that on transfer she was most upset about the sterilisation and was requesting reversal of sterilisation at that stage. Subsequently, I reversed her sterilisation by removal of Hulka clips and this was a successful reversal, in that she became pregnant. However, following the reversal she, as sometimes happens after reversal, found that the pregnancy was in the tube. She had a salpingectomy then performed. Dr Soysa who did the laparatomy felt that the left tube was macroscopically normal which was the best that could be tested at that time. Following that, she has had a laparoscopy and dye to check on the patency of that left tube and that has been shown not to be patent. This may of course have been from adhesions from the ectopic or also may have been a non successful reversal and we have no way of telling that. I would support Mrs Lunjevich's claim for help with ACC and really what she wants from ACC is help to achieve a pregnancy by IVF. I understand this from discussing the situation her. As is documented in the notes, she was upset by the sterilisation. She has either had the sterilisation consent form acquired while she was drowsy or after the event. Which ever way, it is clear that very quickly she was upset about the tubal ligation having been performed and wished to have it reversed even at 6 days post caesarean section, so I have no doubt in my mind that she was not clear at all as to what she was signing for. The surgeon involved Dr Elizabeth Stein has subsequently returned to Chile and I have no address for her. I have enclosed photocopies of the relevant parts of her notes." The appellant provided a statement for the respondent which is dated 16 January 1997 in which she states: "In 1989 I had given birth to a little girl by caesarian performed by Dr Elizabeth Stein. Two days later my husband (Paul Hosbson) and I had learned that they had cut and clamped my tubes without our consent... she told my husband that she had done this for safety for me, but we were totally upset because we had worked with her for two years planning my last two children. A year before this had happened (1986) I was pregnant. She performed an operation on me because she said I had a tubal pregnancy... This had affected our lives dearly because she was forcing us to sign a consent after we got back from Whangarei. I had told them in Whangarei base. They contacted her to see why she had done this... I 3 since then had my tubes reversed, because I am to remarry. I have lost another baby in 1996 (tubal) and have been back into Kaitaia Hospital for a laparoscopy. Then I was told I could never have children because my only tube that's left (left tube) is totally mangled." The file contains a formal printed document under the heading of the "Northland Area Health Board" and states that it is a "form of consent by patient". The name and address are handwritten in the document which indicates that the consent was given by the appellant to a "lower segment caesarean section and tubal ligation". The document purports to be signed on 2 January 1988 by the appellant and is witnessed by "] Biddle" under the acknowledgement of "this consent was read over by me to the signatory who acknowledged having understood it fully and signed the same in my presence." In a transfer note dated 13 January 1988 from the Northland Area Base Hospital to the Kaitaia Hospital it is noted that the appellant and her husband were upset that the tubal ligation operation had been performed because the appellant considered her consent was obtained while she was sedated in labour. On 25 March 1997 the appellant's General Practitioner, Dr van Dorp wrote to the respondent and noted, inter alia, "she informs me that actually the consent for the tubal ligation was signed after it was done and backdated, although, it will be difficult to prove this I guess." The pre- operation notes from the Kaitaia Hospital indicated that the appellant was admitted at 2345 hours on 1 January 1988 and that a female infant was delivered at 2140 hours the following day. The notes conclude "placenta with the membrane expelled, small area of placenta covered ... Tubal ligation ... Hulka clips." The respondent referred the file to its Medical Misadventure Advisory Committee which concluded that on the information available to it, it was unable to establish that there was a failure to obtain the appellant's informed consent to the tubal ligation operation. The appellant applied for a review of the respondent's decision not to grant cover. In a written statement of her evidence she indicated that over a period of some time she had been consulting Dr Stein because she had previously had birthing difficulties and Dr Stein was aware of the desire of the appellant and her husband to have further children. She stated that in 1987 she had successfully conceived but that Dr Stein considered that the pregnancy was ectopic and decided to perform an operation to confirm her findings which were found to be incorrect. However, as a result of the operation she suffered a miscarriage. She said that she was upset at this result but thereafter continued to consult Dr Stein with a view of having at least two more children. She said that she had had many discussions with Dr Stein about family planning in the period between the miscarriage and the pregnancy of her last child. She said that that pregnancy was normal and that during the later stages she was consulting Dr Stein each fortnight. She said that she was admitted to hospital in early January 1988 because the pains were becoming stronger and that on admission Dr Stein thought that things were normal and suggested that her husband go home. She said that later that day she was admitted to the maternity ward but Dr Stein and the midwife left. However, she 4 later called the duty nurse because of the increase in pain and the duty nurse contacted both Dr Stein and Mrs Biddle, the midwife. They rechecked her and Dr Stein consulted Dr Parry by telephone as to the procedure which should be followed. When Dr Stein returned to the appellant she said that Dr Parry considered there was no time to transfer the appellant to the Whangarei Hospital and that it was necessary to perform a caesarean at that time. She said that she was prepared and the operation took place. Her impression was that all of this appeared to have taken only some 15 minutes as a result of which she considered that she could not have been informed about the necessity for consent to the caesarean section or tubal ligation operation. The appellant said that she recalled Dr Stein telling her as she was going into the theatre that as there was no time to get the husband to sign any papers they were "just going to have to go ahead and do the operation straight away." The appellant considered that she would not have been physically capable of signing a form at that stage. She said that she later recalled her husband telling her that she had a baby daughter and that she did not see Dr Stein again until the decision was made to remove the child to Whangarei the next day The appellant said that on 3 January 1988 Dr Stein checked her and the baby who was to be flown to Whangarei Hospital but because of the drips in the appellant's arm it was not possible for her to fly as she wanted to be with her baby the appellant and her husband decided to drive to Whangarei and she said that while she and her husband were discussing arrangements to go to Whangarei, Dr Stein told her that she had clamped her tubes. The appellant said that her husband asked Dr Stein the reason for the tubes being clamped and the explanation was to prevent the appellant from having any more children. The appellant said that her husband told Dr Stein that they hoped to have a second child and Dr Stein said that that was not then possible because she had cut the appellant's tubes to prevent her from having any more children. When she later became upset with Dr Stein she said that Dr Stein told her "I did it for you. I thought that I had done you a favour, I did not want you to have to go through what you went through with this baby just for the sake of one more child." The appellant said that she was most upset during the journey from Kaitaia to Whangarei and on arrival at Whangarei Hospital, she told the medical staff there that she had had a caesarean and tubal ligation and that she was most upset about it because she had not given her consent to such an operation. Subsequently the appellant and the baby were discharged from the Whangarei Hospital and returned to the Kaitaia Hospital where she was readmitted to a maternity room. She said that she had only been in the hospital for a few minutes when Dr Stein came into the room and asked her why she had told the staff at the Whangarei Base Hospital that she had had a tubal ligation "because it had got her [Dr Stein] into trouble with the Northland Base Hospital." The Base hospital had apparently told Dr Stein that she was very upset that the tubal ligation had been done without her consent. She said that she was still upset the following morning when the hospital requested her to sign a number of papers before she left the maternity ward. The appellant maintains that at no time was the question of tubal ligation ever explained to her nor did she sign a consent to such an operation. 5 The Review Officer considered that on the basis of the available information and in the absence of Dr Stein and Mrs Biddle, there was insufficient evidence on which to disturb the respondent's primary decision. Mr Davis traversed the evidence and his principal submission was that on the basis of the appellant's own evidence there was only a "fifteen minute window of opportunity" between the appellant going into labour and the performance of the emergency caesarean section. He submitted that it would have been impossible to have obtained her properly informed consent to either the caesarean section or the tubal ligation within that timeframe. He submitted that on the evidence it was clear that Dr Stein was well aware of the appellant's family planning issues over a lengthy period and knew that she wished to have two additional children. He submitted further that with her history the appellant was well aware of the consequences of a tubal ligation operation. Mr Davis submitted that on the evidence available it would appear that the form of consent on the records must have been fraudulently obtained and was therefore invalid. Mr Tui submitted that the evidence of the appellant's pre-operation notes clearly demonstrates that the appellant's recollection of the so-called "fifteen minutes window of opportunity" was clearly wrong and that she was in the ward some hours rather than minutes prior to the operation. He submitted that there must be doubt as to the appellant's recollection of the events, particularly as they took place quite some time ago and are contrary to the ward records. The issue falls to be decided under sections 5(1) and (6) of the Act which in so far as they apply to this appeal state: "(5) (1) For the purposes of this Act,- Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent event show the different decisions might have produced better results: Medical misadventure means personal injury resulting from medical error or medical mishap. ... (6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian or welfare guardian, as the case may be, as medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent." The evidence available is unfortunately limited by the absence of both Dr Stein and Mrs Biddle. There is no doubt that over the years Dr Stein was dealing with the appellant in respect of family planning issues and must have been well acquainted 6 with her wishes. She would also have been aware that by January 1988 the appellant had a good knowledge of the basic procedures in relation to caesarean sections and tubal ligation. The appellant has given evidence of what transpired before and after she underwent the operation in the Kaitaia Hospital. She is adamant that at no time prior to being taken to the theatre, for what she thought was to be the caesarean section, which she appreciated had to be done, did she sign any papers. She did acknowledge that she signed papers on her subsequent discharge from the Kaitaia Hospital after her return there from Whangarei Hospital but has no knowledge of their contents. At that time she was particularly annoyed, having had an argument with Dr Stein because of the allegation from Dr Stein that she had been the subject of remonstration from the Whangarei Base Hospital because the appellant had reported the performance of the tubal ligation without her having given her consent. I agree with Mr Tui that the so-called "fifteen minutes window of opportunity" submitted by Mr Davis cannot be correct, having regard to the ward's medical records. However, that does not get away from the appellant's adamant statement to both Dr Stein and the medical staff at the Whangarei Hospital the day after the operation when she found out from Dr Stein that the tubal ligation operation had been performed on her. Her evidence has been given on oath and the records from the Base Hospital and Dr Parry confirm her vehement complaints. Both she and her husband protested to Dr Stein when she told them of the fact that she had performed that operation. Unfortunately, neither Dr Stein nor Mrs Biddle, the midwife, are available. While I hesitate to interfere with a decision of the Review Officer, I am concerned that the evidence indicates that immediately the appellant became aware of what had occurred, which was very shortly after the operation, she protested as did her husband. Such a complaint would appear to be consistent with the reasons for which she had been consulting Dr Stein over a period of some seven years. Her principal concern was to have the child, the subject of a caesarean section, and then to go on and have another child. I am certain that had it been explained to her then, that any possibility of attaining that situation would be taken from her, she would have given it very serious consideration and would have been well aware of such an explanation had it been put to her. There is no evidence as to when the consent form, which is dated 2 January 1988, was signed but the appellant is adamant that had she been asked to consent to a tubal ligation she would not have done so. I find it difficult to accept that Dr Stein properly and efficiently carried out her ethical duties in providing a full explanation to the appellant that she was to undergo a tubal ligation operation and the consequences of it. I accept that the appellant knew and tacitly consented to that fact that a caesarean section had to be urgently performed but I do not consider that at any stage the appellant was aware that she had given her consent to a tubal ligation operation. I consider that her adamant complaint immediately upon hearing what had occurred was made immediately. All the evidence from the appellant and the Base Hospital 7 records confirm this and it is consistent with the reason for which she had been consulting Dr Stein for some years prior. In the absence of evidence from Dr Stein and Mrs Biddle, I will not speculate as to how or when the consent form came to be completed. However, I do find that the appellant was not properly advised of the proposed tubal ligation operation and that and that she did not give her informed consent to it. The decision of the Review Officer will therefore be revoked and the appeal allowed. The file will be returned to the respondent to make any necessary assessments. There will be costs to the appellant of $800. DATED at WELLINGTON this S day of June 1998 swinddubin A W Middleton District Court Judge dc120-98.doc (nr)