W v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 53 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN VALERIE WAHITAPU of Hamilton Appellant (Appeal No. DCA 309/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of March 1997 APPEARANCES Mrs A de Jonge - Advocate for appellant Mr T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has suffered a medical misadventure under s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant lodged a claim for cover and treatment expenses with the respondent on 22 November 1995. The application was completed by her then general practitioner, Dr W J Reeder, and in answer to the question of how was your injury caused, the appellant has stated: "Medical misadventure, drug induced injury, valium addict. Trouble with my concentration and speech, problems with memory." 2 The respondent then had to check the appellant's medical history with the result that voluminous documents were supplied in relation to treatment she had received in Rotorua. The appellant had claimed that she had been prescribed a variety of Benzodiazepines while undergoing psychiatric treatment between 1967 and 1982. In her evidence she said that she completely withdrew from all medication on her own initiative and without any medical assistance in 1981. She described that period of her life as extremely difficult and harrowing, but she is now completely clear of any drug problems. However, she does claim that as a result of the prescription of the drugs between 1967 and 1982 she is now troubled with lack of concentration, problems with her speech and problems with her memory. When the respondent had received the reports and records from the Rotorua Hospital, it submitted all the documentation to its Medical Misadventure Advisory Committee as it is required to do under the Act. In its case notes at its first meeting on 22 April 1996, the Committee, under the heading of "discussion", noted: "Mrs Wahitapu's claim is for an alleged inappropriate prescribing of drugs including benzodiazepines. The committee has considerable evidence before us in this claim for the period from 1975 until Mrs Wahitapu's admission to Lakeland Health for acute depression in February 1983 The committee has nothing before it in the period between February 1983 and the present time. From the information before us it would appear that Mrs Wahitapu was initially admitted in 1968 and again in 1972 to hospital with depression, although the more extensive notes before the committee are from February 1975 on her admission to Rotorua Hospital. During that time she was prescribed various medication, including Valium. It seemed to be between 20 and a maximum amount of 30 milligrams a day. This was regarded as a moderate, at 20 milligrams, to a larger dose, at 30 milligrams, of Valium for the period. The committee also notes that we have before us the admission and referral letter for Mrs Wahitapu in February 1983. This was for anxiety and depression. We do note that it states that Mrs Wahitapu had a lengthy history of depression. However on the 21st of February 1983 her records state that she had managed for the last 6 months without psychotrophic medications (she was on Valium 20 milligrams a day for 15 years). She was stated on examination to be distressed and weeping. The current therapy was 'please admit; patient is reluctant to start psychotrophic drugs'. The notes before the committee for her stay do not mention any prescribing of psychotrophic drugs at this time and again it is not clear to the committee whether Mrs Wahitapu has been prescribed any psychotrophic drugs since 1982 3 There is no evidence before the committee that Mrs Wahitapu was inappropriately prescribed psychotrophic drugs, namely benzodiazepines during the 1970's. We do note that in the letter of 16th of October 1995 from Mrs Wahitapu, in paragraph 3, that she was admitted to Rotorua Public Hospital in 1975 for drug withdrawal. However the notes before the committee, relating to her stay in Rotorua Public Hospital in March 1975, state that the this (sic) was an acute admission for absolute exhaustion (sic) over 24 hours, for shakiness. It is not stated in the notes that Mrs Wahitapu was admitted for drug withdrawal. And again it states in paragraph 3 that she was admitted to St Andrew's private hospital in Rotorua in 1982 for drug withdrawal. The committee has notes before it from Mrs Wahitapu's stay in St Andrew's in February 1983. But this was for anxiety and depression and again it is stated that Mrs Wahitapu had not taken any psychotrophic medication for the previous 6 months. Her admission was for acute depression, rather than for drug withdrawal. There is nothing, therefore, before the committee to establish Mrs Wahitapu had hospital admissions in either 1975 or 1983 for drug withdrawal. And similarly there is nothing before the committee to establish that Mrs Wahitapu was prescribed psychotrophic drugs post 1982. However we do note we do not have any personal records of Mrs Wahitapu following her admission to St Andrews via Lakeland Heath in 1983 and we would appreciate receiving copies of Mrs Wahitapu's medical records since 1983 from Dr Ian Gibb the Consultant Psychiatrist at Lakeland Health. Until these notes are received we will defer making any recommendation on Mrs Wahitapu's claim in the period from 1983." When the further documentation was received the matter was again considered by the Medical Misadventure Advisory Committee which included an experienced psychiatrist and again the record from the Committee notes as its description "This is the second consideration of Mrs Wahitapu's claim which is for alleged inappropriate prescribing of Benzodiazepines. The committee at it's (sic) initial consideration on the 22nd of April 1996 had considerable evidence before us for the period from 1975 up until Mrs Wahitapu's admission to Lakeland Health for acute depression in 1983. On the evidence before the committee it was clear that Mrs Wahitapu was suffering from both anxiety and depression. Again from the evidence before the committee there was nothing to establish that Mrs Wahitapu was inappropriately prescribed Psychotropic drugs during the 1970's. Again the committee had on the evidence before us noted that Mrs Wahitapu was admitted to Rotorua Public Hospital in 1975. However, this was not for, as she stated, withdrawal from drug dependency, but was an admission for what was clinically charted as depressive neurosis. Her previous admission in 1972 had been for Cholecystitis and later for a Cholecystectomy. In February 1983 Mrs Wahitapu was admitted to Rotorua Hospital for recurrent depression. The committee had 4 sought further information particularly with respect to Mrs Wahitapu's medical records since 1983. The patient advocate Mrs de Jonge with whom Mrs Wahitapu is in contact has provided the Medical Misadventure Committee with further names to contact. However Dr Paul has informed the Advisory Officer that she has never prescribed Benzodiazepines to Mrs Wahitapu and that Dr Drewrey who was the GP who had preceded Dr Paul, has now deceased. There was no response other doctors There is nothing before the committee that would establish serious drug dependency or addiction and that Mrs Wahitapu's admissions to Rotorua Hospital were for withdrawal, these were rather, as established through the notes, for depression. The committee is not satisfied that there is sufficient evidence before the committee to establish personal injury. Our recommendation therefore is that this claim be declined to become final after 15 working days." On the basis of that discussion the Committee recommended to the respondent that there had been neither a medical mishap nor a medical error and that the appellant's application for cover should be declined. The appellant applied for a review of that decision. At the review hearing the appellant gave evidence of the problems which she claimed came about because of her addiction to Valium and that this had resulted in poor concentration and speech, and problems with her memory. Mrs de Jonge acted as advocate for the appellant at the review hearing and submitted numerous articles from various medical journals in support of the contention that as late as 1976 prudent medical practitioners should have been aware of the dangerous side effects of the prescriptions which had been provided to this appellant. The review officer concluded that the decision of the respondent was correct and that there was no evidence of a serious drug dependency or addiction and that the appellant's admissions to hospital were for depression rather than withdrawal and that there was no evidence to establish that she had suffered personal injury. It is against that decision which the appellant now appeals. The appellant was given leave to submit a report from Dr G Mccormick which is dated 11 November 1996 and states: " Valerie described a number of psychiatric treatments between 1967 and 1982. During this period she was described at least with amitriptyline, haloperidol, benzhexol, benztropine, thiothixene, clomipramine, dothiepin, trimipramine, Valium, Serepax, Ativan, Mogadon, and Halcion (the last 5 drugs all being benzodiazepines). I have read the medical notes available to me and, although these are not continuous, they suggest that Valerie was variously under the care of both general practitioners and psychiatric specialists and that she received treatment with various combinations of psychotropic medications. Valerie's 5 memory is that she was on one or other of the benzodiazepines listed above continuously throughout the period under question. Valerie contends that she was wrongly treated over the years. She said that her problems arose after the break-up of a violent marriage which left her emotionally distressed. She considers that she was never given appropriate help to deal with these emotional difficulties and that the medications prescribed to her numbed her emotional responses. She said that she was told by the various doctors she visited that she was 'nervous', 'neurotic' and 'depressed'. She contends that she did not want treatment with medication and that she 'kept questioning ... are these addictive' the doctors about the medication she was prescribed. She also contends that she was told by her medical attendants that she needed medication and that she would require it for the rest of her life. On the occasions when she tried to do without her medication she felt worse, invariably going to another doctor who restarted treatment with medication. In retrospect, Valerie feels that these were times of drug withdrawal associated with her attempts to stop her treatment. In 1982 Valerie went to St Andrews Hospital in Hamilton where she stopped all her medications in a 'cold turkey' fashion. Here she describes clear symptoms of benzodiazepine withdrawal with symptoms including insomnia, muscle aches, nausea, diarrhea, (sic) tremulousness, hallucinations, confusion, de-realisation and de-personalisation. It would appear that these symptoms persisted for at least a year following the cessation of her treatment. Since 1982 Valerie describes a number of difficulties which she considers were due to her treatment over the years with psychotropic medications. These include paralyzed feelings in her legs, muscle wasting, difficulties with walking, difficulties with speech, blurred vision, poor concentration, difficulty with a verbal fluency, chronic fatigue and difficulty with handwriting. In Summary (1) The way in which benzodiazepines were prescribed to Valerie meant that, at least by the time she discontinued them in 1982, she was physically dependent on them, suffering a significant withdrawal when she stopped these medications. (2) Valerie contends that she was never given the information to make informed consent decisions about her medication. There is no evidence in the medical records available to me, that the addictive nature of benzodiazepines was discussed with Valerie. (3) In retrospect, I am unable to properly comment on the validity of treating Valerie's problems with medication during the period involved. Valerie feels that she needed a supportive and psychotherapeutic approach, her medical attendants considered that she needed treatment with medication." 6 Mrs de Jonge again referred to the fact that prudent practitioners should have been aware at least by 1974 that there were dangerous side effects from the taking of Benzodiazepines. She again submitted a number of excerpts from medical periodicals confirming this approach. However, she did not direct my attention to any medical report which confirmed that this appellant suffered the effects discussed in the various periodicals which are only general in nature. In addition to her claim that the appellant had suffered a misadventure by way of medical error and medical mishap, Mrs de Jonge submitted that the appellant had suffered a medical misadventure through the failure to have been properly informed prior to her giving her consent to the treatment she underwent. While she referred to various cases in relation to lack of informed consent, there is difficulty in this case because of the late filing of the claim and the inability to obtain any information whatsoever other than the appellant's own statement that she had not been advised of the possible side effects of the medication which had been prescribed for her. Mr Cleary submitted that the issue had been very thoroughly discussed by the Medical Misadventure Advisory Committee and that the respondent had relied on its advice. He submitted that on the evidence no personal injury had been established. He submitted further that whether personal injury had occurred in the context of the over-prescription of Benzodiazepines is a medical question which was not supported by the medical evidence. Mr Cleary further submitted that apart from the appellant's claim that she had not been properly informed before she gave her consent there is no other evidence as to what occurred nor is there evidence that the appellant's practitioners negligently failed to obtain her informed consent. As the application for cover was not filed until November 1995 and the appellant's first visit to her doctor in relation to this problem was in September 1995 the case has to be decided under the 1992 Act because of the provisions of s.63. In order to establish medical misadventure under the 1992 Act it is first necessary to establish that as a result of medical error or medical mishap the appellant has suffered personal injury. The Act provides under s.4 that personal injury is the death of or physical injuries to a person and any mental injury which is an outcome of those physical injuries. I agree with Mr Cleary's submission that on the medical evidence available on this file there is no confirmation that the appellant has suffered or is suffering a personal injury as defined in s.4. The only claim by Dr Reeder is that the appellant has suffered the side effects of long term Valium medication, but he does not specify any physical injuries suffered by the appellant. Furthermore, I do not consider that the report of Dr Mccormick takes the issue any further. He sets out the various symptoms which follow or were associated with the appellant's withdrawal from drug taking and the other difficulties which she has suffered since that time but he does not certify that there is an injury which is the result of over- prescription. 7 I consider that I must accept the report of the Medical Misadventure Advisory Committee in its finding that the appellant did not suffer personal injury because there is no evidence which contradicts that finding. As to the issue of medical error, there is no evidence to support the appellant's submission that the treatment prescribed between 1967 and 1982 was other than appropriate having regard to the then state of medical knowledge. Moreover, Dr Mccormick specifically declined to comment on the validity of the appellant's treatment and I must therefore hold that the appellant has suffered neither personal injury as a result of her treatment nor has she suffered as a result of medical error. As I stated earlier the only evidence of a lack of informed consent is the assertion by the appellant that she was never advised of the possible effects of the medication. As it is impossible at this stage to obtain evidence one way or the other as to what occurred between 1967 and 1982 I am not satisfied on the balance of probabilities that the appellant was not properly advised before the medication was prescribed. The appeal is therefore dismissed. DATED at WELLINGTON this 14+ day of April 1997 A W Middleton District Court Judge dc30996.doc(rd)