New Zealand Case Law: Decisions & Judgments

Topic

Failure to provide treatment

Legal area

Court

17 Oct 2019

DELA ROSA v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2657

Citation

[2019] NZHC 2657
Court

High Court

Special leave refused because the contested issues were predominantly factual and Judge Walker applied the correct legal tests: causation under s 33(1)(a) was properly confined to the method by which labour was progressed once the decision to induce was made, the failure-to-treat causation standard applied was the Court of Appeal test in Adlam, and the judge adequately explained her preference for Associate Professor Westgate's expert evidence; therefore no question of law capable of bona fide and serious argument was established.
20 Aug 2019

Buckley v Accident Compensation Corporation (Treatment Injury)

Citation

[2019] NZACC 100
Court

District Court

Judge held on the balance of probabilities that Marion's cerebral palsy was substantially caused by failure to provide treatment in a timely manner: (1) the pregnancy met clinical indications for being managed as high risk requiring a formal plan, continuous monitoring and consultant oversight, and failure to have such a plan was an omission that impacted the response to acute bradycardia; (2) there were material delays from the detection of bradycardia (around 10:22) to calling/arrival and to delivery (delivered 10:46), and those delays more than materially contributed to the brain injury; t…
4 Jul 2019

Dela Rosa v Accident Compensation Corporation (Leave to Appeal)

Citation

[2019] NZACC 73
Court

District Court

The District Court concluded no question of law arose to justify High Court leave: on the facts the Judge correctly found on expert evidence that prostaglandin gel did not cause the bradycardia/HIE, that sudden cord occlusion from a hypercoiled cord was the probable cause, that there was no established failure to provide treatment under s 33(1)(d), and that the Judge gave adequate reasons for preferring Associate Professor Westgate's evidence; accordingly leave to appeal was dismissed.
19 Feb 2019

Morris v Accident Compensation Corporation (Treatment Injury)

Citation

[2019] NZACC 13
Court

District Court

On the evidence the Court found there was no proven failure to treat between May 2015 and November 2015 because expert evidence supported follow-up at six to 12 month intervals and no medical evidence mandated a three-month review; further, even if a failure to monitor were established the evidence did not prove that such failure caused the endocarditis (increased risk or predisposition insufficient for causation). Therefore the criteria for a treatment injury under s32 were not met and the appeal was dismissed.
19 Dec 2018

Dela Rosa v Accident Compensation Corporation (Personal Injury & Treatment Injury)

Citation

[2018] NZACC 195
Court

District Court

The Court granted the appeal, quashed the reviewer's decision and reinstated ACC's decision declining cover because the respondent failed to prove a treatment injury on the balance of probabilities: no clinically indicated and available alternative treatment existed at the relevant times that could and should have been given and would likely have prevented the injury, the evidence favored a sudden cord occlusion on a background of placental insufficiency/hypercoiled cord as the probable cause, and administration of prostaglandin was not shown to have caused the injury; the Court preferred Ass…
16 Oct 2017

ADLAM v ACCIDENT COMPENSATION CORPORATION [2017] NZCA 457

Citation

[2017] NZCA 457
Court

Court of Appeal

A 'failure to provide treatment' under s 33(1)(d) requires omission to take a step that an objective standard of clinical indication at the time showed should have been taken; therefore a failure cannot be established where there were no indications for a different treatment course and treatment injury requires that an alternative treatment that would have prevented the injury could and should have been given based on clinical indications at the time.
25 Aug 2017

Kahukuranui v Accident Compensation Corporation (Treatment Injury)

Citation

[2017] NZACC 97
Court

District Court

Dismissal because evidence was insufficient to show any injury suffered in the course of treatment by Dr Short or that any injury was caused by treatment or lack of treatment; lack of clinical records and expert opinion made causation speculative and inadequate to meet statutory requirements for cover under s32.
12 Jul 2016

Moore v Accident Compensation Corporation

Citation

[2016] NZACC 188
Court

District Court

On the evidence, including contemporaneous GP and hospital records and the independent GP expert opinion that the GP acted reasonably in 1985 under then-accepted practice, the appellant failed to prove on the balance of probabilities that there was a failure to provide treatment or to provide treatment in a timely manner; therefore the treatment injury threshold in ss32–33 was not met.
19 Feb 2016

Marshall v Accident Compensation Corporation

Citation

[2016] NZACC 33
Court

District Court

Because there was no evidence the treatment caused the applicant's continuing symptoms and the only finding was failure to achieve the desired result, s32(3) applied so no treatment injury was established; the question advanced was factual not one of law and leave to appeal was rightly dismissed.
25 Sept 2013

Morgan v Accident Compensation Corporation

Citation

[2013] NZACC 306
Court

District Court

The GP advised the appellant to have a screening colonoscopy at age 45 and had no obligation to recall him; the appellant's cancer was an underlying health condition not caused by any omission by the GP and causation was not established, so no treatment injury arose under ss32-33 and the appeal is dismissed.