Brewster v Accident Compensation Corporation

[2019] NZHC 1343

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-695

[2019] NZHC 1343

BETWEEN

ISAAC BREWSTER

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

23 May 2019

Counsel:

J P Miller for Applicant

A S Butler for Respondent

Judgment:

13 June 2019

JUDGMENT OF MALLON J

Introduction

[1]    Isaac Brewster is 9 years old. He has cerebral palsy. This is because he suffered hypoxic ischaemic encephalopathy when he was born in breech (feet first) position by vaginal delivery. Breech presentation had not been diagnosed before his mother went into labour.

[2]    Isaac requires assistance with the basic functions of living. He sought cover under the Accident Compensation Act 2001 (the Act) on the grounds he had suffered a treatment injury. The Accident Compensation Corporation (ACC) declined cover and that decision was upheld on a review. The District Court also found against him.1

1      Brewster v Accident Compensation Corporation [2016] NZACC 290.

BREWSTER v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1343 [13 June 2019]

The District Court then declined to grant him leave to appeal this decision.2 He now applies for special leave to appeal the District Court decision declining him cover.3

[3]Special leave to appeal is sought on the following questions of law:

(a)did the District Court err in finding that the fact of an incorrect diagnosis could not, in itself, support a claim for cover under ss 32 and 33(1)(b) of the Act;

(b)did the District Court err in finding that cover was excluded through   s 32(3) of the Act; and

(c)did the District Court err in finding that no treatment injury occurs where (with the benefit of objective hindsight) a difference course of treatment could have yielded a better result?

The background

[4]    Mrs Brewster went into labour on 27 January 2010. At around 4.40 pm, when labour was well underway, it was discovered that Isaac was in a breech position.  Mrs Brewster was taken by ambulance to hospital. She arrived there at 5.25 pm. By this time both of Isaac’s feet were protruding from his mother. The consultant on duty elected to proceed with vaginal delivery. At 5.35 pm a general anaesthetic was requested. At 5.43 pm Isaac was delivered with the use of forceps.

[5]    Mrs Brewster was under the care of midwives during her pregnancy. Three midwives in total carried out seven abdominal palpation examinations in antenatal visits carried out between 1 December 2009 and 1.30 pm on 27 January 2010 (the day of Isaac’s birth). These examinations did not diagnose that Isaac was in a breech presentation.

[6]    The expert evidence before the District Court was that, on the balance of probabilities, Isaac was in breech position at the last antenatal visit at 1.30 pm on

2      Brewster v Accident Compensation Corporation [2018] NZACC 135.

3      Accident Compensation Act 2001, s 162.

27 January 2010. Based on this evidence, the District Court accepted that Isaac was in breech by the antenatal visit on 27 January 2010 at the latest.4

[7]    In the District Court, ACC accepted that if Isaac had been diagnosed as being in breech at the last antenatal visit his injury would most probably have been avoided. Specifically, he accepted that there would have been time to arrange a caesarean section that would have avoided the problems with the vaginal birth.5

[8]    The expert evidence before the District Court was that abdominal palpation is the approved method of diagnosis for the baby’s presentation but it is not a 100 per cent reliable diagnostic tool.6 Ultrasound is more reliable. Dr Ngan Kee, a consultant obstetrician and gynaecologist instructed by ACC, considered it was highly likely that, if Mrs Brewster’s care had been transferred to a specialist, ultrasound scans would occurred. These would have at no less than intervals of one month, with the last one probably at 36-38 weeks. This may have increased the probability that breech presentation would have been detected. However, Dr Ngan Kee considered it was not possible to say that it would have done so because it was possible that the foetus turned late in the pregnancy.

[9]    The Referral Guidelines provide best practice guidelines as to when a referral to a specialist should be made. A specialist will normally be an obstetrician or, after birth, a paediatrician but a physician, anaesthetist, surgeon, paediatrician, infectious disease specialist or psychologist may also be appropriate.

[10]   There are three levels of referrals under the Referral Guidelines. Level 1 is where a lead maternity carer “may” recommend a consultation with a specialist. Level 2 is where a lead maternity carer “must” recommend a consultation with a specialist. And Level 3 is where is lead maternity carer “must” recommend that responsibility for a woman’s care be transferred to a specialist.

[11]   Morbid obesity of the mother is specified as a level 3 referral. At the relevant time the Referral Guidelines did not contain a definition of morbid obesity but the

4      Brewster v Accident Compensation Corporation, above n 1, at [11].

5 At [14].

6 At [30].

World Health Organisation specified a body mass index (BMI) of over 40 as constituting morbid obesity and the independent midwife who gave a report for ACC confirmed this reflected the general understanding at the time.

[12]   The Midwives Handbook provides decision points for midwives at various stages of pregnancy. It is only at the first stage, which covers the first 16 weeks, when it is said that a midwife should review the mother’s physical health status including by checking the mother’s blood pressure, weight and height. The Handbook stated that blood pressure was to be checked at each decision point thereafter. There was no further reference to weight.

[13]   Mrs Brewster’s weight was recorded by her midwife (her lead maternity carer) when she first saw her. That weight indicated a BMI of 38.6. At just over 20 weeks (that is during, the second decision point in the Midwives Handbook), Mrs Brewster was referred to a physician as a result of blood pressure concerns. The physician recorded Mrs Brewster’s weight as being 106.8 kilograms. That weight indicated a BMI of 41.7 or 41.9.7 The physician raised no concern with Mrs Brewster’s weight (and, it seems, did not calculate or record the BMI). The physician commented on Mrs Brewster’s blood pressure. He said that, when checking her blood pressure, it was essential to use a large cuff “given her weight”. He recommended that her blood pressure be closely followed during the third trimester. He said he had arranged ongoing clinic review.

[14]   The report from the independent midwife instructed by ACC considered that, for the purposes of determining whether a mother was morbidly obese, it was her weight at the beginning of pregnancy that was important. However, she also said:

… if there were any comorbidities identified in pregnancy then a referral would be undertaken in relation to  that comorbidity with information of  Mrs Brewster’s BMI of 39 and weight gain that had occurred in pregnancy during that time.

[15]   A doctor with a post-graduate diploma on obstetrics, who prepared two reports for Isaac, considered the Level 3 referral under the Referral Guidelines did not limit a

7      The evidence about whether it was 41.7 or 41.9 is inconsistent.

referral for morbid obesity only if this was at the time the mother was first weighed at the beginning of her pregnancy.

The section

[16]Section 32 of the Act states:

32Treatment injury

(1)Treatment injury means personal injury that is—

(a)suffered by a person—

…

(ii)receiving treatment from, or at the direction of, 1 or more registered health professionals; or

…

(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.

…

(3)The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.

[17]Section 33 provides:

33Treatment

(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:

…

[18]   In Adlam v Accident Compensation Corporation the Court of Appeal considered these sections in the context of a claim for treatment injury by a young man who had been born with cerebral palsy.8 When his mother was in labour, a drop in foetal heart rate was detected and the decision was made to perform an emergency caesarean section. The baby had suffered a neurological injury which led to his cerebral palsy immediately prior to the emergency caesarean section. The factual finding in the District Court was that, once it became apparent that the foetal condition was compromised, the mother’s treatment providers had acted as quickly as possible.

[19]   The issue was whether a “failure to treat” (s 33(1)(d)) could occur in circumstances where there were no indications for a different treatment course.9 The Court of Appeal held that there could not. This issue arose because it was argued that changes made to the legislation in 2005 were intended to remove the requirement to show fault on the part of the medical professional in order to qualify as medical misadventure as it was then called. It was argued that a failure to treat in the new provisions meant “failure simpliciter” without any connotation of departure from a standard.10

[20]The Court of Appeal explained its view as follows:

[61]      In the result, we consider the relevant provisions properly construed mean that in order for there to be a treatment injury as a result of failure to provide treatment it is necessary to show that an alternative treatment that would have prevented the injury suffered could and should have been given having regard to the clinical indications at the time of the alleged failure.

[62]      … The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions. ...

[63]      … It may accurately be said, as the Minister claimed, that a consequence of the amendment was that ACC was no longer obliged to make findings of fault, but that is not the same thing as saying that ACC does not have to be satisfied that an alternative course was available that should have been pursued. …

…

8      Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102.

9      Other questions of law were posed for the appeal but the Court did not consider it necessary or appropriate to answer them in the form they had been posed.

10     Adlam v Accident Compensation Corporation, above n 8, at [14]

[65] … It will be apparent from our reasoning that we have discerned a legislative policy that, while not requiring a finding of negligence, still operates on the basis that a treatment injury will only have occurred where there has been some departure from a standard and that departure has caused a personal injury.

…

[69] … A distinction can between finding that a different treatment course should have been followed and establishing there was negligence …

…

[73] There was no suggestion of a breach of an experienced specialist standard in this case. There were no observable indications prior to the fever that warranted medical intervention and there were no indications for a different treatment course in the circumstances. …

[21]   This decision was given after the District Court’s decision upholding the decision to decline cover to Isaac.

The District Court

[22]   The District Court accepted that hypoxic ischaemic encephalopathy amounts to an injury. It considered that Mrs Brewster was receiving treatment when she was seen by a midwife at the antenatal visits. There were three issues for determination.

[23]   The first was whether the failure of the midwife to diagnose the breech presentation at the 27 January 2010 antenatal visit was a treatment injury. The Court held the mere fact of an incorrect diagnosis did not constitute a treatment injury. Here, there was no departure in the standard of care in carrying out the check through palpation testing. Applying the High Court’s decision in Adlam, a treatment injury did not occur where there were no observable indications for a different treatment course (in this case, referral to a specialist for a scan) even though, with the benefit of hindsight, a different course of treatment (a scan) could have yielded a better result.

[24]   The second was whether the failure of the lead maternity carer to recommend that responsibility for Mrs Brewster’s care be transferred to a specialist because she was morbidly obese was a treatment injury. The Court held it was not. The Court was satisfied that, in not continuing to monitor Mrs Brewster’s weight, the midwives had not failed in the standard of care they provided. Mrs Brewster’s weight was irrelevant

at the time of the referral to the physician. Further, a referral had been made to a specialist because of Mrs Brewster’s blood pressure and he reported that he had arranged ongoing clinic review. He had not identified her weight as being an issue.

[25]   The third was causation. The Judge considered that whether further scans would have made any difference depended on when Isaac became in the breech position and whether that could be picked up on a scan. This amounted to no more than a chance of a better outcome for Isaac. On the basis of Ambros, this was insufficient.11

My assessment

[26]   The application relies on three matters which are said to be seriously arguable questions of law. The first two of those concern the meaning of s 32(3) when the treatment at issue is “a diagnosis of a person’s medical condition” (s 33(1)(b)). The argument for Isaac is that it is enough that the diagnosis of the baby’s position using the palpation method was incorrect. Had a correct diagnosis been given, Isaac would have been delivered by caesarean section and he would not have suffered his injury.

[27]   The Court of Appeal’s decision in Adlam, although not directly concerned with s 33(1)(b), said this:12

[46]      Another kind of case may involve a course of treatment properly embarked upon, but badly carried out…So, establishing there was a treatment injury may involve showing that a professional standard had not been met.

[47]      A similar conclusion can be reached in the case of treatment of injuries based on other kinds of treatment set out in subsequent paragraphs of s 33(1). Take the case of a diagnosis of a person’s medical condition, referred to in s 33(1)(b). For a diagnosis to cause personal injury it must, we think, be a wrong diagnosis. … We consider it much more likely that the intent was to embrace misdiagnosis. This too connotes a departure from a standard: a standard that would have been met had a correct diagnosis been given.

[28]   It is submitted for Isaac that this is obiter. However, this discussion was an integral part of the Court of Appeal’s overall assessment of how sections 32 and 33 operated in coming to its view on s 33(1)(d). On the facts before the District Court,

11     Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 (CA).

12     Adlam v Accident Compensation Corporation, above n 8.

there was no suggestion that the palpation method was incorrectly performed, nor that it departed from a standard. The diagnosis was wrong but, as the Judge found, that was an ordinary consequence of the palpation test which is not always a completely effective diagnostic tool.

[29]   In these circumstances, it is not the diagnosis from the palpation method that is at issue. It is the decision to use this method on a person who meets the criteria of morbid obesity (s 33(1)(c)), the failure to refer Mrs Brewster to a specialist for ultrasound scans (s 33(1)(d)), or the failure of the physician to whom Mrs Brewster was referred to provide ultrasound scans (s 33(1)(d)) that is potentially at issue. This leads to the third question on which leave to appeal is sought.

[30]   This third question was reframed in oral submissions. It is said that it is seriously arguable that the District Court applied the wrong legal test in determining that there was no failure to provide treatment. In making that decision the Judge relied on his assessment that the midwife had complied with the Midwives Handbook (which did not specify that weight was to be monitored at each stage) and that the midwife had in fact made a referral to a specialist who did not identify Mrs Brewster’s weight as an issue.

[31]   ACC submits the applicant is in reality seeking to overturn factual findings in the District Court. I do not agree. I accept it its seriously arguable that the District Court applied a negligence test (whether the midwife acted with reasonable care) rather than the Court of Appeal’s Adlam test (whether there were observable indications such that a different treatment could and should have been undertaken). The observable indications were Mrs Brewster’s weight both at the time of booking (when it was close to morbid obesity) and subsequently (when it tipped over into morbid obesity). It is seriously arguable that, because of Mrs Brewster’s weight, her care should have been transferred to a specialist who would carry out ultrasound scans during her pregnancy. I am also satisfied the issue is of sufficient importance to justify a further appeal.13

13     Sinclair v Accident Compensation Corporation [2012] NZHC 2514 at [7].

[32]   ACC submits that, to the extent the error in treatment now centres on the physician’s actions, it is a different case to that presented in the District Court. If that is so, I do not think that should preclude an appeal to this Court. If this Court found that the case has materially changed and the record does not contain the relevant evidence, then it would be open to this Court to refer the matter back to the District Court for a rehearing at which all the relevant evidence could be put before it.

[33]   ACC submits that, even if Mrs Brewster’s care had been transferred to a specialist, it is not possible to conclude that this would have avoided the injury. ACC supports the Judge’s conclusion that there was no more than a chance of a better outcome and this is insufficient to establish causation.

[34]   I consider it is seriously arguable the Judge’s conclusion on causation was inconsistent with his earlier finding that he was satisfied on the balance of probabilities that Isaac was in breech at latest prior to the final antenatal visit on 27 January 2010. That conclusion was (at least partly) based on a study of 140 patients with a breech presentation at delivery of which 95 per cent of them were already presenting as breech presentation at 32 weeks. As the likely final scan would occur around 36-38 weeks, that suggests the final scan would have taken place in time to diagnose Isaac’s breech position.

[35]   Further, I consider it is seriously arguable that the Judge did not apply the balance of probability standard to whether the failure to conduct ultrasound scans caused Isaac’s injury. Rather, it is seriously arguable the Judge considered it was necessary to be sure that Isaac’s breech presentation would have been diagnosed if scans had been undertaken by a specialist.

Result

[36]   The application for special leave to appeal is granted. The question of laws for determination are:

(a)Did the District Court err in finding that no treatment injury occurred because it approached the question as though it was necessary to show that the midwife had failed to take reasonable care.

(b)Did the District Court err in finding that causation could not be established by making inconsistent findings about when breech presentation was likely to have occurred and/or by failing to apply the balance of probabilities standard to whether, if Mrs Brewster’s care had been transferred to specialist care because of her weight, the treatment injury would not have occurred.

[37]   The Registry is to set the proceeding down for a telephone conference so that directions can be made for the hearing of the appeal. If counsel file a joint memorandum setting out consent directions that can be made the telephone conference may be vacated.

[38]   I am uncertain if there is any issue as to costs. I will reserve them so that, if there is any issue, they can be dealt with as part of the substantive appeal.

Mallon J