Accident Compensation Corporation v Adlam
[2016] NZHC 1487
•1 July 2016
For a Court ready (fee required) version please follow this link
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000017 [2016] NZHC 1487
BETWEEN ACCIDENT COMPENSATION
CORPORATION Appellant
AND
JEREMY CAMERON ADLAM Respondent
Hearing: 11 May 2016 Appearances:
A S Butler and O C Gascoigne for Appellant
H G de Groot for RespondentJudgment:
1 July 2016
JUDGMENT OF GENDALL J
Introduction
[1] This appeal concerns the proper interpretation of the treatment injury provisions of the Accident Compensation Act 2001 (“the Act”) in light of the policy behind legislative amendments that created that regime in 2005 (the Injury Prevention, Rehabilitation and Compensation Amendment Act No. 2 (2005) (“the
2005 Amendment”).
[2] The respondent, Jeremy Cameron Adlam (“Jeremy”) is now aged 16 years. He was born on 20 March 2000. Immediately prior to his birth by emergency caesarean section Jeremy suffered a neurological injury described as intra-partum hypoxia which later caused severe cerebral palsy.
[3] Tragically, this catastrophic eleventh hour hypoxic event has meant that Jeremy with his cerebral palsy condition continues to suffer marked neurocognitive disability which affects every area of his daily living. Jeremy suffers deficits in
terms of mobility, upper extremity function, swallowing and fatigue and, because of
ACCIDENT COMPENSATION CORPORATION v ADLAM [2016] NZHC 1487 [1 July 2016]
these injuries, his mother acts as his full time carer. Jeremy will require significant care throughout his life.
The claim history
[4] It seems to be generally accepted that, prior to the event in question, Jeremy was a healthy viable child and that had a caesarean been effected earlier than it was, it is likely he would have been spared injury.
[5] Jeremy made an initial claim for ACC cover for what was said to be a “treatment injury” in terms of ss 32 and 33(1)(d) of the Act. This claim was lodged by his general practitioner in February 2006. On 6 June 2006 the appellant the Accident Compensation Corporation (“the ACC") issued a decision declining cover. That decision was upheld on review on 6 September 2011.
[6] Jeremy appealed that review decision to the District Court. On 10 August
2015, in a decision issued by Judge MacLean (“the District Court decision”), Jeremy’s appeal against the reviewer’s decision was allowed. In reaching that decision, Judge MacLean applied a hindsight analysis to the question of whether earlier intervention by Jeremy’s treatment providers would have provided a positive outcome for him and concluded that there was a “treatment injury” for which cover was available.
[7] The ACC now appeals against the District Court decision.
[8] There are two questions for consideration in this appeal (for which leave was granted):1
(a) Can a “failure to treat” occur in circumstances where there are no
observable indications for a different treatment course?
(b)Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better
result?
1 Adlam v Accident Compensation Corporation [2015] NZACC 401 at [11].
Factual background
[9] Generally the relevant facts here are not in dispute. During her pregnancy with Jeremy, his mother Mrs Kym Adlam (Mrs Adlam), was hospitalised at 27 weeks gestation as a result of spontaneous and premature rupture of her membranes. She was transferred as an in-patient to National Women’s Hospital in Auckland where she was seen by a paediatric registrar and her condition was stabilised. From that point on, her pregnancy and the foetal condition were closely monitored.
[10] Over the next four weeks, Mrs Adlam remained at National Women’s Hospital. During this time, she appeared to be clinically well and was reacting appropriately to cardiotocography (CTG) tracing. There was no evidence of uterine activity, chorioamnionitis, or pre-term labour. She was transferred to New Plymouth Hospital near her home where she was seen by a specialist obstetrician. The plan was for her to deliver at 34 weeks gestation.
[11] On 17 March 2000 a doctor at New Plymouth Hospital noted that all recordings were normal and the foetus was in the cephalic (head down) position.
[12] In the early morning of 20 March 2000, Mrs Adlam spontaneously developed contractions with increased discharge of liquor. At first, a CTG showed good variation with one late deceleration. At 1.00 p.m. that day, Mrs Adlam was reviewed and noted as being 0.5cm dilated and possibly in early labour. The foetal heart rate was monitored over the course of the afternoon.
[13] Later that afternoon at 5.35 pm, on review it was noted that Mrs Adlam’s
temperature had increased. She was placed on IV antibiotics. Between 6.45 pm and
6.50 p.m. that night the foetal heart rate had decreased to 95-100 beats per minute (bpm). At that point a decision was made to perform an emergency caesarean section. Mrs Adlam was taken to theatre at 7.00pm. Anaesthesia was administered at 7.15 pm.
[14] Jeremy was delivered at 7.34 pm. At birth his APGAR scores were six at five minutes and eight at 10 minutes and his initial blood gases were suggestive of peripartum asphyxia. Jeremy was transferred to a neonatal unit where he was noted
to have poor muscle tone, decreased reflexes, low blood pressure and poor saturation levels.
District Court Decision
[15] In the District Court decision, Jeremy’s appeal against the ACC reviewer’s decision was allowed on the basis that Judge MacLean found Jeremy had suffered a treatment injury.2 In making that finding, however, there is no question that Judge MacLean reached the clear conclusion that, once it became apparent at New Plymouth Hospital that the foetal condition was compromised, Mrs Adlam’s treatment providers acted as quickly as possible. Judge MacLean accepted that the caesarean was only appropriate when fever became apparent. The Judge held that “it is unrealistic to conclude that those actions could safely have been done any faster or that they were not done in a timely way.”3
[16] Judge MacLean nevertheless concluded that Jeremy had received “treatment” here by virtue of the fact that his healthcare providers failed to provide treatment, or to provide treatment in a timely manner in terms of s 33(1)(d) of the Act. This conclusion was based on “an objective hindsight finding of fact” that the treatment providers managing Jeremy’s birth had failed to perform a caesarean at an earlier time and that, had they not so failed, it might well be the case that the injury to Jeremy would not have occurred. In making these findings, Judge MacLean
specifically held that:4
The experts substantially agree that earlier intervention, objectively, in hindsight might well have prevented the onset of hypoxia and the consequent cerebral palsy. That is simply an objective hindsight finding of fact and in my view on a proper reading of s 33(1)(d) there has been a failure to provide treatment.
[17] The District Court decision therefore found that Jeremy was entitled to cover despite the fact that first, there were no observable indications prior to the fever that warranted medical intervention and secondly, that the only basis on which treatment
injury was established was through objective hindsight.
2 Adlam v Accident Compensation Corporation [2015] NZACC 230.
3 At [54].
4 At [62].
Legislative history
[18] The ACC it seems has always accepted that some adverse outcomes of medical treatment are injuries entitling a victim to no-fault compensation. The initial entitlement criterion, “personal injury by accident”, was at first left unelaborated, except for the stipulation that it included incapacity resulting from an occupational disease.5 This term had long been employed in workers” compensation legislation, and it was originally felt that the accumulated case law on its meaning would provide sufficient guidance under the new ACC scheme. The workers’ compensation cases had never had cause to consider the application of the concept to
the adverse outcomes of medical treatment, but it seems to be accepted from the beginning that at least catastrophic and disastrous patient responses were covered by the ACC.
[19] However, it soon became apparent that once the phrase “personal injury by accident” was separated from the additional qualifying clause of the workers’ compensation law, “arising out of and in the course of employment”, there was a risk of blurring the fundamental distinction between injury and disease. This resulted in the amendment of the ACC scheme’s basic cover provision in the course of its first year of operation, adding specific exclusions in respect of injury caused exclusively
by heart attacks, disease, infection or the ageing process.6 At the same time, express
reference to “medical, surgical, dental, or first-aid misadventure” was added as an
illustrative category of personal injury by accident.
1992 Scheme
[20] In 1992, a new legislative framework for accident compensation was established to abolish the single concept of “personal injury by accident” and to replace it with specific categories of covered personal injury.7 The aim was to eliminate unintended extensions to the ACC scheme. The new categories of covered
injury included personal injury amounting to medical misadventure, which adopted
5 Accident Compensation Act 1972, s 2.
6 Accident Compensation Amendment Act 1974.
7 Accident Rehabilitation and Compensation Insurance Act 1992.
the previously informal division between “medical error” and “medical mishap”. The two categories were than subjected to additional statutory specification.
[21] “Medical error” was defined in terms of common law negligence as the “failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.”8 The legislation specified that it covered not only positive malpractice but also the negligent failure to diagnose and treat. Where ACC found that there might have been negligence by a registered health professional, it was also obliged to report the matter to the appropriate professional body with a view to disciplinary proceedings being instituted.
[22] “Medical mishap” was defined in terms of rarity and severity. An adverse consequence of treatment was rare only if the possibility was such that “the adverse consequence would not occur in more than 1 percent of cases where the treatment is given.”9 The intention was to define strictly the degree of rarity required, for it was felt that the test of mishap had gradually been watered down by tribunal and court decisions. In addition, a new severity test was introduced so as to eliminate claims arising from less serious injuries. This required that the result of the treatment needed to be death, extended hospitalisation or lasting and significant disability.
Failure to diagnose or treat were in effect excluded from the definition of “mishap”, so it was necessary in these cases for the patient claimant to establish a medical error by bringing forward proof of negligence.
The 2005 Amendment
[23] In 2002, a consultation paper was commissioned by the Minister for ACC over concerns first, that medical mishap was “confusing and arbitrary” and secondly, that the operation had become “an overly blaming culture rather than a culture of learning from mistakes”.10 Medical error was the only category of injury covered by the ACC that depended on an explicit finding of fault on the part of the injurer. As I
have noted above, the ACC was also legally obliged to report all cases of medical
8 Section 5(1).
9 Section 5(7).
10 Department of Labour Review of ACC Medication Misadventure: Consultation Document (2003)
at 11-12.
error to the relevant authority. Physicians therefore became reluctant to participate in the claims process, for fear of repercussions resulting from a negative ACC report.
[24] The consultation process resulted in the 2005 Amendment which is still in force today.11 It was said that it would unequivocally remove the need to find fault as a pre-condition for the acceptance of a treatment injury claim under the ACC scheme, and hence it would more closely align the cover criteria in the area with the Woodhouse principles underlying the ACC scheme as a whole. Claims were made that it would result in “improved fairness to claimants”, who would benefit from
expanded cover and faster claims processing.
[25] Throughout the parliamentary debates on the 2005 Amendment, there was constant emphasis on removing the requirement to find fault for treatment injury. In the First Reading, the Hon Lianne Dalziel stated:12
The legislation will get rid of an anomaly that has bothered me and other members of the Labour Party for a long time. We will have a scheme in place to ensure that when an injury results from medical treatment, people are treated in the same way as they would be treated if their particular injury had occurred in any other circumstance. If the injury occurs in a hospital setting, at the general practitioner’s room, or when people are being treated by a registered health professional, they have to prove that either the health professional was at fault– and this in a no fault scheme– or the condition or the injury that arose as a result of the medical treatment was both rare and severe…
The difficulty with that particular set of tests is that a number of people who suffered their injuries as a result of medical treatment have had to go through a very in-depth process of either showing that their medical professional was at fault, or showing that what happened to them was both rare and severe. Even if something dreadful had happened, if it was relatively common it was something that they had to carry [at] their own risk. Yet somebody who gets behind the wheel of a car without putting on the seatbelt is entitled to have all of his or her treatment costs met, even though that person knows the risk is that the extent of any injury will be greater than if he or she had put on the seatbelt. Why was medical misadventure singled out in that way? I still have not heard a good reason for that.
[26] Consequently, the 2005 Amendment aimed to align the treatment injury provision with the no-fault nature of the Act. Claimants no longer needed to
expressly find fault in the nature of negligence in order to be covered under the
11 Accident Compensation Act 2001, ss 32 and 33 as amended by the Injury Prevention, Rehabilitation, and Compensation Act (No 2) 2005, s 13.
12 (5 August 2005) 619 NZPD 14698.
provision. Further, the ACC was no longer required to report registered health professionals to the relevant authorities for what was previously labelled as “medical error” unless the Corporation believed it was necessary to do so.
[27] At the outset however, I need to say quite clearly that despite what seems to be the apparent purpose of the 2005 Amendment, in my view a reasonably strong argument exists that Parliament here has failed to properly clarify and address first, the real effects of a no-fault regime for treatment injury and secondly, what should be the appropriate division for ACC cover purposes between accidents that are covered and illnesses that are not. This is a predominant issue on this appeal along with another dilemma. This is the question that has been argued over whether, on the one hand, since the 2005 Amendment has been in force, the ACC and the courts are not required to find medical negligence of the registered health practitioner before cover is available, but on the other hand, case law so far seems to have generally suggested that for cover to be available, there must be a finding of observable indications whereby a physician should have acted in an alternative manner which has resulted in the treatment failure.
The current legislation
[28] “Personal injury” for which an individual has ACC cover in terms of s 20(2)(b) of the Act includes “personal injury that is treatment injury suffered by the person.” The treatment injury provisions are to be found in s 32 of the 2005
Amendment, which provides in part the following definition:
32 Treatment injury
(1) Treatment injury means personal injury that is—
(a) suffered by a person—
(i) seeking treatment from 1 or more registered health professionals; or
(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or
(iii) referred to in subsection (7); and
(b) caused by treatment; and
(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—
(i) the person’s underlying health condition at the time
of the treatment; and
(ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal
injury:
(a) personal injury that is wholly or substantially caused by a
person’s underlying health condition:
(b) personal injury that is solely attributable to a resource allocation decision:
(c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.
(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
[29] “Treatment” is defined non-exhaustively in s 33 of the Act to include, among other things, diagnosis of a person’s medical condition, a decision on treatment provided, providing medical treatment and a failure to provide treatment or to provide treatment in a timely manner .
[30] It is useful here to set out in full the relevant parts of s 33 which I now do:
33 Treatment
(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a) the giving of treatment:
(b) a diagnosis of a person’s medical condition:
(c) a decision on the treatment to be provided (including a decision not to provide treatment):
(d) a failure to provide treatment, or to provide treatment in a timely manner:
(e) obtaining, or failing to obtain, a person’s consent to undergo treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person
to make an informed decision on whether to accept treatment:
(f) the provision of prophylaxis:
(g) the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently:
(h) the application of any support systems, including policies, processes, practices, and administrative systems, that—
(i) are used by the organisation or person providing the treatment; and
(ii) directly support the treatment.
[31] It is clear too that in order for a claimant to receive cover, the treatment injury must not be a necessary part or ordinary consequence of the treatment, taking into account, among other things, the person’s underlying health and clinical knowledge at the time of the treatment.13 This subsection to some extent is similar in nature to the definition of “medical mishap” in which claimants were only entitled to cover if the adverse consequence of treatment was rare and would not occur in more than
1 percent of cases where that treatment is given.
[32] Therefore, a two step inquiry is outlined in the treatment injury provisions of the Act. First, a claimant must establish that there was treatment given as defined under section 33. Once it is established that there was treatment, a claimant must establish that the treatment injury was caused by the treatment and that the injury was not a necessary part or ordinary consequence of the treatment. As I see the position, therefore, causation becomes a critical factor in the inquiry.
Discussion
[33] Shortly, I will turn to consider the two questions at issue in this appeal as outlined at [8] above. But before I do so, it is useful to record certain remarks made by Judge Powell in his District Court decision to grant leave for the present appeal.
Although what he had to say is not in any way binding on this Court, nevertheless, those comments in his decision are worth repeating here:14
Having considered Judge McLean’s decision carefully, I agree with the parties there are clearly arguable questions of law capable of bona fide and serious argument with regard to his Honour’s interpretation of s 33(1)(d) of the Act and how it otherwise interfaces with the definition of Treatment Injury contained in s 32 of the Act.
Given the application is now by consent it is not necessary to go into any great detail but I note in particular that his Honour’s suggestion that irrespective of any clinical indication requiring earlier intervention a treatment injury could be determined objectively through hindsight is a radical interpretation of the legislation and is arguably in conflict with s 32(1)(c)(ii). Such an interpretation would also appear to obviate the need for any causal link between the injury and the treatment actually received by a claimant and is also arguably inconsistent with earlier case law with regard to the interpretation of both s 32 and 33 of the Act.
[34] Now to the two questions at issue here.
Can a “failure to treat” occur in circumstances where there are no observable
indications for a different treatment course?
[35] As noted at [30] above, under s 33(1)(d) of the Act “treatment” includes:
...
(d) a failure to provide treatment, or to provide treatment in a timely manner.
...
The ACC submits that “failure”, under s 33(1)(d), means an omission to do something that could and should have been done in the circumstances. Unless the relevant alternative injury-preventing treatment could and should have been performed, it is argued there has been no failure. What could and should have been done will depend on the patient’s presentation at the time of treatment, taking into account the presence or absence of clinical indicators for treatment. The ACC submits that a clinically indicated treatment is one which, in the treating health professional’s reasonable medical judgment, will be likely to be effective in addressing the presenting condition.
[36] The phrase “failure to provide treatment” used in s 33(1)(d) to my mind is strongly coloured by notions of departure from a standard, which are imported by the word “failure”. This word is defined in the Shorter Oxford Dictionary 6th Edition
2007 as:
(An) omission to do or to do something due or requisite; default.
[37] And, the words “fail” and “failure” in the Chambers Dictionary 11th Edition are defined in part as:
to fall short or be lacking,…to prove deficient under trial, examination,
pressure etc, not to achieve…to leave undone.
[38] These definitions as I see it impart, by implication at least, the need for some form of trigger (such as an omission to do something that could or should have been done in the circumstances) to occur before the “falling short”, the failure “to achieve” the “leaving undone” or the “omission to do” occurs.
[39] And, the ACC’s interpretation here in my view is also consistent with these definitions and the context of the provision whereby s 32(1)(c) requires that treatment injury not be a necessary part or ordinary consequence of the treatment, taking into account the clinical knowledge at the time of the treatment. The Court of Appeal in McEnteer v Accident Compensation Corporation has held that s 32(1)(c) requires an analysis that is rooted in the facts of particular cases, requiring expert
opinion reflecting what actually occurred.15
[40] In response, however, Mr de Groot, counsel for Jeremy, submits that requiring outward indications would necessitate a finding analogous to the finding of fault that existed prior to the 2005 Amendment. This is because he says the criterion proposed would necessarily require the ACC or the court to question issues in clinical medicine. And this would need a decision to be reached on which outward indicators should have been interpreted as meriting intervention, and thus a finding of fault on the part of the physician. Counsel goes on to contend that any identification by the court as to observable indicators, in a situation where the
physician should have acted but failed to do so, will necessarily imply fault consistent with the medical mishap regime.
[41] There is, as I see it, to an extent, some merit in both submissions advanced before me and this case illustrates what is a potential difficulty or uncertainty with the current treatment injury provisions. The dividing line between cover and no cover in this area has always been a fine one. As I have noted above, the 2005
Amendment was introduced it is suggested intending to remove the requirement to find medical negligence before a claimant could be covered for medical injury. However, it appears that questions have been raised as to whether the desired effect of what was likely to be Parliament’s intent has not come to fruition entirely, due to the fundamental dividing line between treatment injuries which are covered and illnesses which generally are not covered.
[42] Professor Stephen Todd, in his widely acknowledged text The Law of Torts in New Zealand (now 6th Edition, 2013) and elsewhere has written extensively in this area. In doing so he has suggested generally that, the question of whether medical “treatment” occurred, necessarily involves the identification of either an error or some departure from what should have been done in the circumstances prevailing at the time. Importantly, identification of an error or departure from what should have
been done does not require that ACC make a specific finding of fault on the part of the particular health professional or treatment provider, this being the difference from the medical misadventure provisions. Thus, although the ACC is no longer required to find fault, some form of responsibility is still required to be identified when a claimant needs to show that the health professional should have provided a
different treatment in some way.16 The scheme is not intended to underwrite a lack
of success in medical treatment. The Act expressly states that it is not treatment injury where the desired result, of itself, was not achieved by the treatment. The only conclusion that can be drawn in the context of the provision is that the claimant will need to establish, on a balance of probabilities that wrong treatment or inadequate treatment was given or withheld by the physician. As a result of this,
Professor Todd is of the opinion that the medical mishap or medical negligence
16 Stephen Todd, “Treatment Injury in New Zealand” (2011) 86 Chicago-Kent Law Review 1169 at
1169.
requirement pre the 2005 Amendment still to some extent remains in different guises. Professor Todd further explains that:17
The task of defining what is and what is not covered for accident compensation in the context of medical treatment is bound to be difficult and probably cannot be resolved in an entirely satisfactory fashion. Medical injury frequently lies near the dividing line between accident and illness. For as long as the accident compensation scheme provides cover for accidents but not for illness (save for occupational disease), it will remain necessary to search for an unexpected accident or event which can separate a medical injury from ordinary treatment of an illness or disease.
[43] While I have some reservations as to Professor Todd’s opinion that the concept of medical mishap or medical negligence is present post 2005 under different guises, it is true that some form of responsibility for either a failure to provide treatment or the provision of wrong treatment must be established on the balance of probabilities in order for a claimant to receive cover. A purely outcome based approach advocated by Jeremy and his advisers will inevitably result in all undiagnosed or incorrectly treated illnesses being covered by the scheme.
[44] On all of this, I am satisfied that determining whether a particular treatment is clinically indicated necessarily requires consideration of the alternative option or options available to the health professional, given the state of knowledge at the time, and whether there were contraindications telling against those alternatives. The approach taken in the District Court decision to Jeremy’s treatment here does not explore whether any alternative treatment – in this case an earlier caesarean section – was clinically appropriate. Indeed in the present case, performing a caesarean at
33 weeks, in the absence of clinical indicators that a caesarean was actually necessary, might well be seen as contraindicated as an earlier caesarean may have put Jeremy or his mother at unnecessary risk. Indeed, on this aspect, the medical evidence of Dr Malcolm Battin and Dr Jenny Westgate, which was before the earlier decision-makers would seem to confirm this given general pregnancy management guidelines and problems from an early delivery of prematurity and the like.
[45] The 2005 Amendment has resulted in certain difficulties for the Courts in some decisions they have faced. Courts have struggled in situations where, although
17 At 1202.
they may not have found fault or attributed blame to a physician, they have still determined that observable indications existed whereby the physician in question should have acted, in order for cover to be granted. One such example of this is the decision in Amosa v Accident Compensation Corporation.18 In that case, there had been an initial delay in diagnosing pneumonia. The appellant complained to his general practitioner of a fever and a cough. He was prescribed pain killers. It was
not until the appellant had subsequently consulted his doctor several more times that the doctor diagnosed pneumonia and referred him to a hospital for treatment. The appellant required surgery to remove pus from the pleural cavity. This led to a surgical decortication of his lung and the removal of a rib, causing ongoing pain, instability and incapacity for his work as a self-employed plasterer.
[46] This case involved a considerable amount of medical opinion. The appellant’s general practitioner was quite critical of himself, saying that diagnosing pneumonia and treating the appellant with antibiotics at the first consultation would have reduced his complications. Other physicians considered that the general practitioner had acted appropriately and was not at fault for failing to diagnose the pneumonia immediately.
[47] However, despite the majority of the medical opinion agreeing that there was no negligence on the physician’s behalf, and the Judge complimenting the physician’s efforts and care, His Honour still found that a chest x-ray should have been done at one of the claimant’s subsequent visits which would have revealed the severity of the condition. The interpretation of the treatment injury regime is therefore in what might be seen as a slightly odd position. Although the Court is not required to find a breach of the doctor’s obligation to take reasonable care, it is still required to find observable indicators which the physician should have acted upon, amounting to some kind of fault.
[48] In Derrick v Accident Compensation Corporation, the claimant sought cover for a treatment injury caused by the failure of his doctor to diagnose a callus on his
foot as melanoma.19 In finding that a treatment injury had occurred, the Judge held
18 Amosa v Accident Compensation Corporation [2012] NZACC 77.
19 Derrick v Accident Compensation Corporation [2010] NZACC 181.
that “it would have been good medical practice to [refer] the appellant for a biopsy”, and that the doctor “should have organised tests and specialist advice long before he did.”20 However, notably the Judge did not make any specific finding of fault, stating that he did “not wish to be blaming a dedicated general medical practitioner.”21
[49] Therefore, the effect on the current application of the treatment injury provisions in cases such as the present requires the Courts either to find that there was a breach of duty of care in the traditional medical negligence sense,22 or that while there was no negligence, the physician should have acted in an alternative manner, given that some form of observable indications were present.
[50] It is generally the position in my view, from the context of the treatment injury provision, certain authorities and the comments made by Professor Todd that the current application of the treatment injury provisions may not have not fully achieved the desired affect intended by Parliament when enacting this provision. Some Parliamentary clarification may well be required to reconcile the Parliamentary intent of the 2005 Amendment with the effect it has on the fundamental division between accident and illness. However, as the law stands at present, in my judgment, a failure to treat does not occur in circumstances where there are no observable indicators for a physician to intervene.
[51] The answer to the question posed at [8](a) above is therefore “no”.
Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result?
[52] Turning now to the second question posed at [8](b) above, as I have noted, s 32(3) provides that “the fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury (my emphasis).” The qualifying phrase “of
itself” is clearly important. The outcome is not solely determinative of whether there
20 At [61] and [64]
21 St [65].
22 See for example: Accident Compensation Corporation v Robertson [2011] NZACC 327; Wire v
Accident Compensation Corporation [2015] NZACC 284.
is a treatment injury, but may be a relevant consideration when assessing whether a claimant is entitled to cover.
[53] Before me, counsel for ACC contended the answer to the question posed above and at [8](b) must be “no”. It is submitted that adopting this hindsight approach:
(a) is inconsistent with the legislative intention underpinning the 2005
Amendment Act;
(b)conflates the question of causation under s 32(1)(b) with the question of whether there was “treatment” under s 33, and thereby undermines the causation enquiry;
(c) could turn the ACC scheme into an underwriter for the public and private health system; and
(d) could lead to undesirable and defensive medical practices.
[54] Prior to the 2005 Amendment Act, s 33(4)(b) of the Accident Compensation Act (repealed) provided that “medical error does not exist solely because subsequent events show that different decisions might have produced better results”. The ACC has referred here to the Medical Misadventure Review: Consultation and Recommendations Report in which the office of the Minister for ACC recommended, and the Cabinet Social Development Committee agreed, that the hindsight exclusion should be preserved. These recommendations stated specifically:
9.agreed that the existing exclusions on cover for medical misadventure in the current legislation are kept, but modification will need to be made to the actual wording to fit with the requirements of the Treatment Injury proposal, specifically:
9.1 desired results not achieved [s33(4)(a)];
9.2 hindsight provisions [s33(4)(b)];
[55] Section 33(4)(b) however was not carried over into the 2005 Amendment
Act, despite the enactment of the rest of the subsection, albeit with further
limitations. Mr de Groot, counsel for Jeremy, has submitted that the fact that the subsection was not carried forward meant that Parliament was permitting the use of hindsight analysis in assessing treatment injuries. However, I do not draw that or any other inference here as to why the exclusion of hindsight was not expressly stated in the Act. I am satisfied this was not likely to be intentional.
[56] I also do not fully accept the ACC’s submission here that accepting a hindsight analysis will necessarily conflate the question of causation with the question of “treatment”. In order for there to be cover for a treatment injury, the claimant must establish the two step inquiry. Essential to this enquiry are the questions first, whether there is treatment and secondly, whether there is a treatment injury? Even if hindsight analysis is adopted, the claimant is still required to prove that the medical professional’s failure to either provide treatment itself or to provide treatment in a timely manner, caused the injury.
[57] In addition, I have some difficulty finding that allowing a hindsight analysis will necessarily lead to undesirable medical practices. The whole point of the 2005
Amendment as I understand it was to encourage a “learning culture” within the health industry and to facilitate cooperation between the industry and the ACC. One thing which the 2005 Amendment has achieved generally is to remove the culture of blaming and finding fault against individual health professionals. Irrespective of whether a hindsight analysis is adopted, this should not affect the cooperation and no-fault finding between the ACC and the medical profession.
[58] However, I do find persuasive the submission advanced by Mr Butler for ACC that a hindsight analysis would effectively turn the ACC scheme into a system under which perfect treatment outcomes were guaranteed for patients. The effect of that would obviously result in a significant extension of cover, (possibly to include for example all kinds of illnesses that much later proved to have undiagnosed consequences) with correspondingly significant impacts on the scheme itself.
[59] If cover is assessed in hindsight, it does not matter whether the injury preventing treatment posited by a claimant could or should have actually been performed at the time. The only consideration is what the “omniscient observer”
might have done in retrospect. In the present case, that would result in cover being granted for Jeremy’s injury, despite the fact that, in reality, there were no indicators at the time or clinically feasible options to prevent the injury. Thus, the system would compensate for the lack of desired outcome, although it was impossible to achieve it. This would constitute as I see it a significant change to the entire ACC system. Any such change would require clear Parliamentary intent. (On this aspect, and without attributing any specific relevance to this fact, it is perhaps interesting to note that the report of the Office of the Minister for ACC estimated at the time that the “treatment injury proposal” would only increase cost to ACC by $8.69 million.)
[60] Furthermore in my view here, a 2010 decision of the Court of Appeal, McEnteer v Accident Compensation Corporation is directly analogous to the present circumstance. In that case, the claimant underwent surgery for an aneurysm on an artery in his brain.23 During the surgery the aneurysm ruptured, requiring his arteries to be clipped temporarily. Clipping of arteries is a standard procedure, but in the appellant’s case it was necessary to clip the arteries for a longer period than is usual. As a result, the appellant suffered a number of cognitive impairments.
[61] Cover was declined on the basis that his mental injury was viewed as a “necessary part, or ordinary consequence” of the treatment and therefore excluded under s 32(1)(c). On appeal, the claimant argued that the assessment of what constituted a necessary part or ordinary consequence of treatment is to be made in terms of what is anticipated to happen in the course of the treatment. The Court of Appeal held that reference to circumstances and underlying health must be based on actuality and not supposition. It is artificial to predict what medical professionals might reasonably anticipate to be a necessary part or ordinary consequence of a treatment beyond what actually emerges during the course of treatment. The claimant’s approach would result in an “abstracted expectation of the ‘average
outcome’ or ‘norm’”.24 The Court of Appeal held further:
[19] Mr Gorringe’s argument introduces undesirable complexity and uncertainty because it is based on a hypothetical treatment of the patient, not on the treatment that was actually required in light of what emerged during the course of treatment. This seems to us to open much scope for dispute,
23 McEnteer v Accident Compensation Corporation, above n 15.
24 At [18].
for no discernable [sic] reason. It is difficult to see why Parliament would wish to adopt such an approach, and we would not attribute such an intention to Parliament without clear language.
[20] We consider that s 32(1)(c) requires an analysis that is rooted in the facts of the particular case– what was the injury suffered? Was it suffered in the course of the treatment undertaken? Was the injury a necessary part or ordinary consequence of that treatment? The third question, in particular requires expert opinion, but not expert opinion in the abstract; rather, it requires expert opinion reflecting what actually occurred.
[62] In the same way that the Court of Appeal refused to assess the “necessary part or ordinary consequence of the treatment” prospectively, in my view the Act should not allow the assessment to be done retrospectively. The only factors which the Court should take into account are matters that arise at the time of the treatment.
[63] For all these reasons the answer to the question posed at [8](b) above is
therefore “no”.
Result
[64] It will be apparent from what I have noted above that the questions to be answered on this appeal outlined at [8] above are now answered as follows.
(a) Can a “failure to treat” occur in circumstance where there are no
observable indications for a different treatment course? Answer: No.
(b)Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result?
Answer: No.
[65] This appeal is therefore allowed. The effect is that the District Court decision is quashed and the ACC reviewer’s decision of 6 September 2011 is reinstated.
Costs
[66] Before me no submissions were made with regard to costs. I am unsure as to whether Jeremy is legally aided with respect to this appeal.
[67] If costs are in issue here and counsel are unable to agree, memoranda may be filed sequentially on the question of costs and I will decide the issue based on the memoranda filed and all the material before the Court.
...................................................
Gendall J
Solicitors:
Russell McVeagh, Wellington
Buddle Findlay, Wellington
John Miller Law, Wellington
0
0
0