Wilson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 277 198 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN THELMA WILSON DCA 239/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 1 day of December 1998 APPEARANCES: Mrs A de Jonge advocate for appellant Mr JD Palmer counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has suffered personal injury by medical misadventure caused by the prescription of Imovane. The type of medical misadventure alleged is that of medical error being the act of prescribing Imovane by a registered health professional for a greater period than was 2 proper or suitable and secondly, in failing to obtain informed consent from the appellant before prescribing Imovane. BACKGROUND The appellant is now aged 78 years and in July 1997 she lodged a claim for cover in relation to the prescription of Imovane for the past 1 1 years causing dizziness, nausea, and continuing tiredness. The matter was referred to the Medical Misadventure Advisory Committee and an opinion was sought from her GP and other health professionals to whom the appellant had been referred over the previous few years. A report was obtained from her then GP, Dr Ian Smiley, Dr Ian Hosford, Consultant Psychiatrist, Dr M F Beg, Physician, and Dr Bert White, Haematologist. In its first report the Medical Misadventure Advisory Committee stated: "This claim is for prescription of Imovane for Ilyears allegedly causing dizziness, nausea, tiredness, and lack of co-ordination, headaches etc. The committee notes a letter from Mrs Wilson to the Unit setting out the problems that she has had with respect to continual tiredness and other problems. She attributes these to the Imovane that her then General Practitioner Dr Livingston began prescribing for her some 11 years previous to 1996. The committee however has a number of reports before us in this claim. The committee notes that Mrs Wilson has a history of psychiatric difficulties including depression, which date back to at least 1971. The committee has particularly noted the letter from Dr Smiley who has reviewed Mrs Wilson's medical records. The records indicate that Mrs Wilson had a long history of depression, having been under the care of a psychiatrist in 1970. The medical records indicate Mrs Wilson exhibited symptoms of poor sleep, excessive tiredness and lassitude with bouts of depression throughout her medical records dating back to 1976. He sums up Mrs Wilson's notes as "the recurring theme throughout the years has been excessive tiredness and depression with poor sleep." The committee is not satisfied on the evidence before them that Mrs Wilson's continuing tiredness and other symptoms are causally related to the prescribing of Imovane. The recommendation therefore is that this claim be declined to become final after 15 working days." The decision to decline cover was confirmed and advice of same was given to the appellant by letter dated 12 March 1998. The appellant lodged a review of that decision. In his decision the Review Officer held that despite the literature presented linking diazepines generally to a variety of symptoms, many of which Mrs Wilson identifies as applicable to her, her main symptoms of tiredness clearly predated the taking of Imovane. In addition, the weight of evidence from general practitioners and psychogeriatrician - the relevant speciality in this case - does not establish a causal link. He held therefore that the appellant had suffered neither personal injury as a result of her prescribed treatment nor was there any evidence to sustain the view that her doctors negligently in failing to obtain informed consent. MEDICAL REPORTS The medical reports which formed the basis of the evidence before the Review Officer were not supplemented by any further reports for the purposes of this appeal. Those medical reports in summary are stated as follows: 1. Dr Ian Smiley Dr Smiley is the appellant's current GP. He had access to her medical records dating back to 1976. He noted that she had been under the care of psychiatrists in 1977, 1994 and 1996, the latter being Dr Hosford. According to Dr Smiley's records the first time she was prescribed Imovane was on 11 May 1993. Further, she has been complaining of poor sleep, excessive tiredness and lassitude with bouts of depression since at least 1977 and certainly long before she was first prescribed Imovane. 4 2. Dr Hosford He refers to her having had a psychiatric breakdown about 15 years previously after a number of major stressful events in her life. She had been maintained on various anti-depressants since that time. He concluded that she had depressive symptoms and needed to continue her anti-depressant medication. Insofar as Imovane was concerned. he noted that when she stopped Imovane it resulted in poor sleep but did not make a difference to her other symptoms. He was unable to state with certainty whether her disability was as a result of taking Imovane. It was his opinion that she would continue to have complaints such as depression, tiredness, poor sleep, fatigue and various physical symptoms in a fluctuating way whether or not she was taking Imovane. 3. Dr A E White, Haematologist/Oncologist In a report dated 3 October 1996 noted that the appellant had been essentially troubled with tiredness for at least two years. He went on to state "I fear the crux of Mrs Wilson's problems relate to Imovane. The sleep pattern is one of being tired most of the day, going to bed about 9 p.m. and having no difficulty getting off to sleep but awakening between 3-5 a.m. in the morning and being unable to get back to sleep. Also the dosage of 15mg daily of Imovane is quite significant. I fully appreciate the difficulty in attempting to wean off Imovane in the past, but I believe Mrs Wilson under these circumstances is under somewhat of a catch 22 situation. I cannot find any further support of evidence for the ongoing lethargy other than a disruptive sleep pattern. The latter as I said above I believe relates to the Imovane. " It is noted that following her consultation with Dr White, the appellant ceased taking Imovane and the drug Clobazam was substituted. According to the literature that has 5 been provided by the appellant's advocate Clobazam is a benzodiazepine, whereas Imovane is described as being a hypnosedative and is chemically distinct from the benzodiazepines. The reports from Dr White indicate that the appellant was weaned off Imovane and her symptoms were nevertheless ongoing and she required the prescription of Clobazam in an increasingly more concentrated amount. In evidence given to the Review Officer the appellant stated that she was never advised that Imovane could be addictive or that she would suffer the withdrawal symptoms that she said she did when she was coming off it. The main symptoms the appellant complained off were nightmares, confusion, dizziness, loss of balance, nausea, headaches, speech difficulty, digestive upset, tiredness, muscle pains, hot flushes, blurred vision and anxiety. The appellant's contention is that she has suffered personal injury by medical misadventure being medical error. That error being a failure on the part of a registered health professional to obtain informed consent to the prescription of Imovane and that in failing to obtain that consent the registered health professional acted negligently. That is the statutory requirement by section 5(6) of the Act. Not only does the appellant need to satisfy the provisions of section 5(6), but also she needs to establish that she has suffered personal injury. Under the definition of personal injury in section 4 of the Act, it requires a physical injury or a mental injury which is the outcome of a physical injury. It was Mrs de Jonge's submissions on behalf of the appellant that Dr White's report establishes that the appellant's continuing tiredness and other symptoms were caused by the prescription of Imovane. Secondly, that as a result of a long term prescription of Imovane the appellant became addicted to that drug and her addiction and resulting withdrawal symptoms amount to the medical misadventure. She further submits that 6 the appellant did not give her consent to the prescription and therefore there is no informed consent. Counsel for the respondent submitted that even if it is accepted that the appellant suffered the symptoms which have been described, that does not establish personal injury under the Act. The evidence being that the appellant has suffered from tiredness and those related symptoms for a long time and that they predate any prescription of Imovane and that they continued to be a problem for her even after ceasing Imovane and switching to a benzodiazepine. Counsel further submits that there is no evidence that the prescription of Imovane was inappropriate and insofar as the alleged withdrawal symptoms are concerned, counsel submits that there is no evidence that they are indeed associated with withdrawal but rather they are the symptoms which she has exhibited for a considerable number of years, which predate the prescription of Imovane and are simply returning now that she has ceased to take Imovane. Counsel finally submits that there is no evidence upon which a finding that the medical practitioner who first prescribed Imovane was negligent in not obtaining her consent, if indeed her consent was not obtained. DECISION The appellant's medical records supplied by Dr Smiley and the evidence of her psychiatric history as related by Dr Hosford indicate that the appellant has had long standing psychiatric problems including depression, lethargy and anxiety. The evidence is that she had suffered a psychiatric breakdown in or about 1980, that this was not the first occasion, evidence of severe depression being recorded as far back as 1971. This Court has not heard any direct evidence as to the particular qualities of Imovane, save that it is clearly a recognised anti-depressant and is described as a minor 7 tranquilliser and sedative. The generic name being Zopiclone. As noted from the literature provided by the appellant's advocate, Zopiclone is not a benzodiazepine, it having a different chemical structure but, apparently a chemical which seeks to achieve the same object as the benzodiazepines, the more common of which are Valium, Halcion and Ativan. From that same literature it is noted that Clobazam is a benzodiazepine and it is one of a group of anti-depressant drugs which it is contended do have addictive qualities if prescribed for any period of time. Dr Smiley's records of the appellant, which go back to 1976, show that she was first prescribed Imovane in May 1993, by that date the appellant had been suffering from depression, anxiety and other associated symptoms for over 20 years. The evidence further discloses that the appellant had been on drugs of one sort or another throughout the period of her treatment since the early 1970s and there is no evidence to suggest that any particular drug was more or less causative of any symptoms which it may be contended she displays today. For the purposes of this appeal this Court is prepared to accept that the symptoms which the appellant has given evidence of do include physical symptoms which in certain circumstances would be regarded as a physical injury to thereby be a personal injury for the purposes of section 8 of the Act. The appellant is required to establish on balance that that personal injury has been suffered as a result of medical misadventure. The only medical misadventure which can apply is that provided in section 5(6) of the Act, namely that the drugs which have caused the personal injury were prescribed in circumstances whereby the appellant had not provided informed consent and that the prescribing health professional had acted negligently in failing to obtain informed consent. Insofar as negligence is concerned it requires a finding that the registered health professional failed to observe the standard of care and skill reasonably to be expected in the circumstances. This Court has had no evidence from any medical source which might assist the Court in coming to a decision, which is indeed a question of law, as to whether any prescribing health professional acted negligently. The question of law required to be answered by the Court involves a consideration of what is the standard of care and skill to be expected in the particular circumstances of the doctor patient relationship between this appellant and her health professionals. Despite the appellant's contention that she had been prescribed Imovane for some 11 years, that is as far back in 1985, the evidence of the medical records is to the contrary and it is highly likely that she was being prescribed other forms of anti-depressant drugs. This Court has detailed evidence of her history of psychiatric difficulties, depression and the physical symptoms which have gone hand in hand with those conditions. Within the last two or three years the appellant has continued to be prescribed anti-depressant drugs on a regular basis for her continuing problems, they being the same problems as were first documented as arising all those years ago. Against that background I find that it would require clear and cogent expert evidence before this Court could take the view that a person in the appellant's condition, with a long history of psychiatric unwellness, was a person in respect of whom a registered health professional would be acting negligently if he/she failed to obtain informed consent before prescribing the particular drug Imovane or indeed any similar anti- depressant drug freely available in New Zealand. In addition to the inability to establish negligence on the part of the prescribing health professional, I find that the evidence of causation as between the prescription of Imovane and the physical symptoms which the appellant complains of as not being established. Dr Hosford was of the opinion that the appellant would suffer from the depression, tiredness and various other physical symptoms whether or not she was taking Imovane. 9 The Court notes the advice of Dr White that he considered that the crux of the problem to be Imovane, but having been weaned off Imovane she was required to take increasing dosages of Clobazam as the same symptoms persisted. For those reasons therefore I find that the appellant has failed to establish the necessary causal nexus between the prescription of Imovane and the physical injuries which have been detailed. Accordingly then for the reason firstly, that the appellant has not established that any registered health professional acted negligently in the prescription of Imovane and secondly, for the reason that the evidence does not establish upon the balance of probabilities that the stated physical symptoms which the appellant says she suffers from are causally connected to the prescription of Imovane, the appellant's claim for cover for personal injury through a medical misadventure must fail. The decision of the Review Officer is confirmed and this appeal is dismissed. DATED at WELLINGTON this 215- day of December 1998 M J Beattie District Court Judge Wilson.doc(gm)