Dent v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 0919/98 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 TIMOTHY DENT DCA 373/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE MJ BEATTIE ON THE PAPERS I have received written submissions from Ms E Meehan, mother of the appellant and from counsel for the Corporation with a request that I issue a decision on the papers. The issue in this appeal is whether Timothy Dent, a child born on the 18th of June 1991, suffered personal injury by medical misadventure arising from his treatment by registered health professionals in respect of alleged medical error in the prescription of orthotics for infantile tibia vara. 2 Background Facts Timothy Dent was born on the 18th of June 1991. According to his mother nothing untoward occurred during her pregnancy and he had a normal birth. By the time he reached the age of about two his parents had become concerned at what appeared to be the child's quite severe bow-leggedness. They first sought medical opinion on this in April 1993. He was initially seen by Mr Street, orthopaedic surgeon, who advised the parents that in his opinion the child's bow-leggedness would correct over time. The parents sought a second opinion from Mr Duthie Mills, orthopaedic surgeon, and he examined Timothy on the 3rd of September 1993 and formed the opinion that the child had an extreme physiologic genu varum and he suggested that there was a reasonable expectation that the deformity would correct with growth. Mr Mills again saw Timothy in April 1994 where Mr Mills stated the child presented with a gross genu varum on both sides with considerable internal torsion of the tibia on both sides. He considered the possibility of an early Blounts lesion in the medial metaphysis of the proximal tibia on both sides. Mr Mills recommended conservative treatment with suitable orthosis and hip - knee - ankle - foot orthotic splints were prescribed. These were manufactured and fitted at the Orthotic Centre NZ Limited. It seems that as the child was seeing Mr Mills in a private patient capacity the cost of the orthotic splints would have been entirely on the parents. It was for that reason that Mr Mills referred the matter to Mr O R Nicholson, orthopaedic surgeon, who endorsed the prescription for splints at Middlemore Hospital thereby enabling the cost thereof to be met by the Regional Health Authority. 3 Timothy was next seen by Mr Mills in November 1994 by which time it was observed that there was only trivial clinical deformity and that xrays taken at Middlemore Hospital on 16 November 1994 were unremarkable a demonstrating no bone or joint abnormality. Mr Mills requested that Timothy remain in the orthoses and be further reviewed in February 1995. In December 1994 the family moved to Putararu and in or about March 1995 Timothy was seen by Mr Clews, orthopaedic surgeon at Waikato Hospital. As a result of Mr Clews' examination, he determined that the orthoses were not necessary and they were removed in or about April 1995. During the 9 months or so that Timothy had the splints on his legs he suffered some minor skin problems and several minor injuries as the result of falls while confined in the splints. In respect of some of these injuries claims for cover for treatment were made on Timothy's behalf. These were all accepted as personal injury by accident. The Claim In simple terms it is the contention of the child's mother Ms Meehan that for approximately nine months, that is between July 1994 when the orthoses were first applied and April 1995 when they were finally removed, Timothy Dent suffered the restrictions that having those braces on his legs for 23 hours a day would cause, together with the various minor injuries from falls and pinching of the skin and skin rashes that the wearing of them caused. It is claimed that all this can be placed under the umbrella of medical misadventure and that Timothy is entitled to cover under the Act in respect of it. It is claimed that firstly there was medical error on the part of Mr Mills and Mr Nicholson by their failure to observe the standard of care and skill reasonably to be expected in the circumstances when they respectively had input into the prescribing and requiring of Timothy to wear orthoses. Secondly it is claimed 4 there is medical mishap in that Timothy has suffered an adverse consequence of treatment and that adverse consequence was severe. Statutory Provisions Section 8(2)(c) states that cover under this Act shall extend to personal injury which is medical misadventure as defined in section 5 of this Act. Section 5 states that medical misadventure means personal injury resulting from medical error or medical mishap. Medical error means: "(1) . the failure of a registered health professional to observe a standard of care and skills reasonably to be expected in the circumstances. It is not medical error solely because the desired result is not achieved or because subsequent events show that different decisions might have produced better results: 'Medical mishap' means an adverse consequence of treatment by [or at the direction of] a registered health professional, properly given, if - (a) the likelihood of the adverse consequences of the treatment occurring is rare; and ( 6 ) the adverse consequence of the treatment is severe. (2) For the purposes of the definition of the term 'medical mishap', the likelihood that treatment of the kind occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1% of cases where that treatment is given. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regards to the circumstances of the particular 5 person, it shall not be medical mishap if the greater risk to the particular person injured - (a) was known to that person; or (6) in the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be, - prior to the treatment. (4) For the purposes of the definition of the term 'medical mishap', the adverse consequence of treatment are severe only if they result in death or - (a) hospitalisation as an inpatient for more than 14 days; or (b) significant disability lasting for more than 28 days in total; or (c) a person qualifying for an independence allowance under section 54 of this Act. . . . (6) A failure to obtain informal consent to treatment from ... that person's guardian or welfare guardian as the case may be, is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent." For Timothy Dent to have cover under the Act he must show that the prescription of orthoses caused personal injury and that personal injury was caused by medical error on the part of Mr Mills and/ or Mr Nicholson or that that personal injury was the result of medical mishap. 6 Did Timothy Suffer Personal Injury? In her submissions Timothy's mother submitted that he did suffer physical injuries as a result of wearing the braces. She said it is those injuries she seeks cover for. The particulars of the injuries which are said to have been suffered include falling from his bed, skin rashes, intermittent pain and muscle wastage due to lack of use of limbs, mental trauma and night terrors. There were two particular incidents stated namely on the 3rd of December 1994 Timothy suffered a fall and on the 6th October 1994 he had to be prescribed some alpha keri lotion to treat eczema exacerbated by the splints and having to wear long sleeves and long pants all the time. When considering personal injury under section 5 of the Act it is necessary to establish a direct causal link between the treatment given by the registered health professional and the injury which is a consequence of that treatment. In this case the actions of the health professionals, in particular Mr Mills, was the diagnosing of the possibility of Blounts disease and the prescribing of orthoses as a means of treating the extreme bow-leggedness which is the manifestation of that disease. From the evidence that was presented to the Medical Misadventure Advisory Committee and to the Review Officer at the review hearing, I find that it is clearly established that the prescription of and the wearing of the orthoses did not per se result in personal injury to Timothy. The medical evidence suggests that they did have a beneficial effect, particularly in the first five months of them being worn and that the severe bowing of the legs was dramatically improved. Furthermore there is no evidence that the wearing of the orthoses have resulted in any permanent disability. Whilst an injury need not be permanent to obtain cover under the Act, I use the word permanent in the context that there has been 7 no evidence of any long term injury as a consequence of the wearing of the orthoses which is attributable to the orthoses themselves. Ms Meehan's submissions on this question of personal injury seem to be confusing injury by accident and injury by medical misadventure. There is no doubt that on the occasions that Timothy may have fallen and hurt himself as a consequence of wearing the braces or has suffered some physical injury in some other way that may have been attributable to the wearing of them, he can be said to have suffered personal injury by accident and for which he may have cover under section 8(2)(a) of the Act. In this regard the Corporation's file discloses that claims for personal injury have been made for Timothy at various times for such accidents. Whilst it might be said that it was the wearing of the braces which increased the chances of personal injury by accident such as suffering a fall, it is the fact of the fall or the other act which is the cause of the injury not the prescribing of the braces. Accordingly I find, as did the Review Officer, that whilst Timothy may have suffered personal injury during the time that he was wearing the braces, those injuries were as a consequence of some supervening event and for which cover would be available under section 8(2)(a) of the Act. There is no evidence of any injury directly resulting from the medical treatment of Timothy attributable to that treatment. As I have found that the appellant has not established that he has suffered personal injury, the question of whether medical misadventure has occurred does not require determination in order to dispose of this appeal. 8 However, in the event that it be established that this Court was incorrect in its finding and ruling that no personal injury had been suffered by medical misadventure then I now turn to consider whether on the facts there had been any medical mishap or medical error. Medical Mishap For the requirements of medical mishap to be established there must be an adverse consequence of treatment which is rare and which is severe. For the consequences to be rare it must be established that the probability of that consequence occurring would not occur in more than 1% of cases where that treatment is given. There has been no evidence tendered that there was any rare adverse consequence suffered by Timothy as a result of being prescribed orthoses. Furthermore the consequences could not be said to be severe as that word is defined as no hospitalisation resulted, nor any disability nor Timothy being in a position to be able to qualify for an independence allowance under section 54 of the Act. The above findings were those made by the Medical Misadventure Advisory Committee, and in its report to the Corporation advising that cover be declined it stated: "The Committee have looked at both medical mishap and medical error. Firstly with respect to medical mishap, the Committee is of the view that there has not been any adverse consequence of the treatment. The most recent evidence on file indicates that Timothy is not suffering any permanent injury. With respect to error, the Committee acknowledges that in hindsight there has been a misdiagnosis, but on considering all the evidence available, in particular, the reports from all the specialists, the Committee is of the view that at the time that the misdiagnosis was made it was an appropriate one and it cannot be said that it was negligent at the time. In particular the Committee notes that the degree of gross deformity that was indicated at the time was such that there was a potential 9 for far greater problems if the treatment was not given, given the exaggerated bowing of the legs, and in these circumstances it was an appropriate diagnosis albeit that it was incorrect." Medical Error This requires the finding of an act of negligence by the health professional and it is noted that section 5(7) specifically states that medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent. The evidence from the specialists was that Timothy was quite severely afflicted and the prescribing of splints, which was accepted as being a conservative treatment for the symptoms displayed, has been found to have been well within the bounds of acceptable medical practice. Neither this Court, nor the Review Officer, nor the Medical Misadventure Advisory Committee has received any evidence in the form of expert opinion which would establish that the health professionals were negligent in the manner of their diagnosis and treatment of Timothy. As can be seen from the Committee's decision stated above, it has made a finding that there was no negligence and for this reason I propose to not consider further whether in fact Mr Nicholson, orthopaedic surgeon, could have been regarded as being a person who was treating Timothy. The evidence all points against such a relationship and that he was simply the facilitator for the prescription of the orthoses through the Orthotics Centre which enabled the parents to have the costs of the orthoses met by the Regional Health Authority rather than them personally. In this decision I have endeavoured to get to the heart of the matter and to deal with the issue having identified it as I have. The appellant's mother has produced lengthy submissions both to this Court and to the Review Officer and the manner 10 in which these have been presented do demonstrate a a somewhat singlemindedness of purpose but which I consider did not correctly identify the evidential and legal issues which needed to be satisfied As the appellant has not been able to establish any of the evidential requirements for a claim of medical misadventure under section 8(2)(c) of the Act I find that the Corporation's decision to decline cover was correct and this appeal is dismissed. DATED at WELLINGTON this lith day of may 1998 M J Beattie District Court Judge Dent.doc KD