Jordan v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT CHRISTCHURCH [2018] NZACC 65 ACR 148/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT BETWEEN TIMOTHY JORDAN Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 1 May 2018 JUDGMENT OF JUDGE AA SINCLAIR [Leave to Appeal s 162 Accident Compensation Act 2001] [1] This is an application by Timothy Jordan for leave to appeal the judgment of Judge L G Powell dated 2 February 2018. District Court Judgment [2] In March 2010 Mr Jordan underwent aortic valve replacement surgery carried out by cardiovascular surgeon David Shaw. The surgery involved replacing Mr Jordan's bicuspid aortic valve with a mechanical aortic valve. The installation of the mechanical aortic valve increased Mr Jordan's risk of suffering a blood clot and as a consequence, it was necessary for him to take warfarin an anticoagulant for the rest of his life. [3] The dosage of the warfarin required ongoing adjustments through the monitoring of Mr Jordan's International Normalised Ratio or INR set by Mr Shaw following the March 2010 surgery to a target range between 2 and 2.5. On 14 September 2014 Mr Jordan had a stroke. His Honour stated that it was highly likely that the stroke was a consequence of blood clots forming on the hinges of the mechanical aortic valve which subsequently broke free, causing a blockage of blood flow to Mr Jordan's brain. [4] In the aftermath of his stroke, Mr Jordan sought cover from the Accident Compensation Corporation claiming that he had suffered a treatment injury. Specifically, Mr Jordan argued that his target INR had been set too low by Mr Shaw and it should have been higher. [5] There were two issues for determination in the appeal namely, whether Mr Jordan had given his informed consent to the March 2010 surgery, and/or whether the INR level set by Mr Shaw caused Mr Jordan's stroke. His Honour discussed the evidence relating to both these issues. With regard to the first issue, he held that there was no basis for concluding that Mr Jordan did not give his informed consent to the surgery. In relation to the second issue, Judge Powell held that there was no direct evidence as to exactly what caused the stroke suffered by Mr Jordan in September 2014. He stated: [36] In this case there is no direct evidence as to exactly what in the end caused the stroke suffered by Mr Jordan on 13 September 2014. There is certainly no evidence that the mere fact of setting the INR between 2.0-2.5 caused the stroke, nor that had the INR remained within the 2.0-2.5 range prescribed by Mr Shaw a stroke would have resulted, or indeed that the INR 1.9 recorded on admission to hospital following the stroke was the cause of Mr Jordan's stroke, given that as noted the record of lower INR in the past. Similarly, although smoking was a further risk factor there is no evidence that this caused Mr Jordan's stroke 37] In an environment where there were a number of factors increasing the likelihood of Mr Jordan suffering a stroke and in the absence of clear evidence as to what actually caused the stroke I have no basis to conclude that any particular identified risk factor was the cause. More particularly I have no basis for concluding that an arguably low level of INR as set by Mr Shaw was in fact causative. As s 32(1)(b) required me to be satisfied that the injury was "caused by treatment" this means that Mr Jordan's appeal cannot succeed. .... [6] Judge Powell dismissed the appeal accordingly. Application for leave to appeal [7] A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with leave of the District Court', appeal to the High Court. The contested point of law must be capable of bona fide and serious argument to qualify for the grant of leave.2 [8] Mr Jordan has identified four matters for consideration which he submits demonstrate serious negligence and medical misadventure. These matters are all factual issues and do not raise any question of law. [9] Mr Jordan went on to identify one point of law namely that Judge Powell erred in his weighing of competing evidence. In particular, Mr Jordan contends that His Honour inappropriately placed more importance on the opinion of the cardiothoracic surgeon Mr Shaw who stated that he would not have used a higher INR range than 2.0- 2.5 in the settling of previous CVA/TIA+, than on the objective evidence based research cited by the neurologist Dr John Fink that in this setting, the INR should be 3.0-3.5. Analysis [10] In his judgment, Judge Powell discussed the evidence of Mr Shaw and Dr Fink but did not reach any conclusion on the correct INR level. In these circumstances, there is no basis on which it could be contended that His Honour placed more importance on the evidence of Mr Shaw than that of Dr Fink. [1 1] After considering all the evidence and submissions made, His Honour concluded there was no direct evidence as to exactly what caused the stroke. He considered that there were a number of risk factors increasing the likelihood of Mr Jordan suffering a stroke. As a result, His Honour held that he could not be satisfied that Mr Jordan's Accident Compensation Act 2001, s 162 2 Impact Manufacturing Lid v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington AP 266/09 6 July 2001 Doogue J. 3 Points 1-4 of the applicant's submissions dated 4 March 2018. These points all relate to factual matters and do not raise any questions of law. District Judgment at [31(c)]. injury was caused by treatment as required under s 32(1)(b) of the Accident Compensation Act 2001. [12] Taking the above matters into account, I find that Mr Jordan has not raised any question of law capable of bona fide and serious argument to enable this application to be granted. Decision [13] The application for leave to appeal is dismissed accordingly. AA Sinclair District Court Judge