Di-Giandomenico v Accident Compensation Corporation
[2015] NZHC 2193
•11 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-000275 [2015] NZHC 2193
BETWEEN ALESSIO DI-GIANDOMENICO
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 12 August 2015 Counsel:
H G de Groot and J M Miller for Appellant
C J Hlavac for RespondentJudgment:
11 September 2015
JUDGMENT OF COLLINS J
Introduction
[1] I am allowing the appeal and remitting the case back to the District Court for reconsideration as to whether Alessio Di-Giandomenico (Alessio) was entitled to cover under the Accident Insurance Act 1998 for medical misadventure based upon medical mishap.
[2] I have reached this conclusion because in my assessment the District Court did not address questions of causation in accordance with the principles articulated by the Court of Appeal in Accident Compensation Corporation v Ambros.1
[3] The rehearing in the District Court is confined to the issue of whether Alessio suffered a medical mishap. Further evidence will be required to determine whether
Alessio’s circumstances meet the statistical requirements of being a rare adverse
1 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
DI-GIANDOMENICO v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2193 [11 September
2015]
consequence of treatment within the meaning of s 37(3) of the Accident Insurance
Act 1998.
Background
[4] Alessio was born at Tauranga Hospital on 3 August 1999. When he was born Alessio was assessed as being in a “flat and floppy” state and not breathing. The midwife, Ms Easton, attempted to stimulate Alessio into breathing with a warm towel and by placing an oxygen catheter under his nose. Ms Williams, a second midwife arrived. At that point it was realised Alessio would need to be transferred to a resuscitation room. Ms Easton cut and clamped the umbilical cord. Ms Williams took Alessio to the resuscitation room and a paediatrician was summoned.
[5] In the resuscitation room Ms Williams attempted to resuscitate Alessio using an oxygen bag and valve mask. There is an issue about how much time passed before this was done. In the District Court, Judge Ongley found there was a delay of “about two minutes until [Alessio was] bagg[ed] with oxygen”.2
[6] Dr Lawrence, the on-call paediatrician arrived and intubated Alessio. There is also an issue about how long that process took. Judge Ongley found that there was a delay of approximately “5 minutes until intubation by Dr Lawrence”.3
[7] Alessio did not start breathing independently until approximately 25 minutes after resuscitation was commenced. He was admitted to the Special Care Baby Unit at Starship Children’s Hospital.
[8] On 6 October 2000, an MRI Report concluded Alessio had:4
cerebral white matter, basal ganglion and thalmalic abnormalities which
[were] in keeping with a previous hypoxic event.
[9] Alessio has cerebral palsy and spastic quadriplegia. He is significantly disabled and requires assistance with most aspects of his day-to-day life.
2 Giandomenico by his parents v Accident Compensation Corporation [2007] NZACC 71 at [62].
3 At [62].
4 MRI Report, Starship Children’s Hospital, 6 October 2000.
[10] In October 2000, Alessio’s parents, Mr Di-Giandomenico and Ms Clarke, lodged a claim with ACC on his behalf. They did so after Dr Inder, a paediatric neurologist at Starship Children’s Hospital, raised issues about “minimal foetal monitoring” prior to Alessio’s birth and the “significant delay before he was transferred … for resuscitation”.5 The claim was based on the belief that Alessio’s physical condition was the consequence of error at the time of his birth. I explain the concept of “medical error” in further detail in paragraphs [37] to [40] of this judgment. In summary, at the time of Alessio’s birth, ACC cover could include
circumstances where a claimant suffered personal injury arising from medical misadventure. Medical misadventure required proof of either medical error or medical mishap.6 “Medical error” was defined in terms that equated to negligence on the part of health care professionals.
[11] ACC obtained a number of reports, including statements from Ms Easton and Dr Lawrence. ACC also obtained independent reports from, Dr Smales, a paediatrician, Dr Dukes, an obstetrician and Ms Skinner, a midwife. ACC also received the report from Dr Inder I have referred to in paragraph [10].
[12] The key features of the reports from the independent experts can be summarised in the following way:
(1)Dr Smales advised ACC that it was very unlikely that any delay in resuscitating in Alessio was relevant to Alessio’s physical injuries. Dr Smales informed ACC that Alessio had not suffered personal injury caused by medical error or medical mishap.
(2)Dr Dukes advised there was “… no evidence of medical error in the management of [Ms Clarke’s] labour …”. Dr Dukes also could find no evidence that Alessio’s physical injuries were the result of labour. Dr Dukes concluded “… there [was] no evidence that Alessio …
[had] suffered medical misadventure either by error or mishap”.7
5 Report of T Inder, 1 August 2000 at 3.
6 I explain medical mishap in paragraphs [41] to [43].
7 Report of P Dukes, 2 April 2001 at 2-3.
(3)In her report, Ms Skinner advised that Alessio’s injuries could “not be attributed to the midwifery management of Alessio”. She also could find no evidence of medical misadventure.8
[13] On 4 June 2001, ACC declined to grant cover for Alessio on the grounds that his physical injuries were not caused by medical error.
[14] Alessio’s parents sought a review of ACC’s decision. The reviewer had the benefit of the reports that had been obtained by ACC. In addition, the reviewer also received a further report from Dr Smales and two reports from Dr Ainsworth, an obstetrician. In a decision dated 6 May 2003, the reviewer dismissed the application
for review.9
[15] Dr Smales reiterated the essence of his advice to ACC. In his report for the reviewer, Dr Smales said the evidence he had reviewed pointed “… very firmly to a period of significant oxygen-lack prior to [Alessio’s] birth and this was the cause of Alessio’s poor condition”. Dr Smales said there was evidence of minor delay in resuscitating Alessio. He concluded “… however [this delay was] very unlikely to
have any significance in terms of Alessio’s subsequent handicap”.10
[16] Dr Ainsworth advised the reviewer that there was insufficient evidence to find medical error on the part of either midwife and that without evidence of medical error there could be no case for medical misadventure. However, in his report of
26 November 2001, Dr Ainsworth said:11
In summary, Alessio’s cerebral palsy is possibly due to an intrapartum hypoxic event followed by a delay in resuscitation. However, this can only amount to medical misadventure if Ms Easton inappropriately responded to evidence of a possible intrapartum hypoxic event, and if this then led to the delay in starting resuscitation. Alternatively, if Midwife Williams did not start bagging Alessio before the [paediatrician] arrived then this would fall short of an adequate level of care…
8 Report of J Skinner, 7 March 2001 at 2.
9 Application for Review by Mr and Mrs Digiandomenico, ACC Review No. 12528, 6 May 2003.
10 Report of O Smales, 23 October 2001 at 1.
11 Report of J Ainsworth, 26 November 2001 at 5.
[17] Dr Ainsworth’s report focused upon whether there was medical error on the part of the health professionals responsible for Alessio’s care. Dr Ainsworth did not address the question of whether this was a case of medical mishap. Dr Ainsworth’s approach was confirmed in a further report dated 11 March 2002, in which he stated “if there is no medical error there is no medical misadventure”.12
[18] Mr Di-Giandomenico and Ms Clarke appealed the review decision. Their appeal was heard by Judge Ongley in December 2006. In addition to the evidence that was before the reviewer, Judge Ongley received further evidence from Dr Lawrence and Dr Ainsworth. He also had a report from Sir Peter Gluckman, then a Professor of Paediatric and Perinatal Medicine at the University of Auckland’s School of Medicine.
[19] In his report, Professor Gluckman said:13
… [O]ne must conclude that it is possible with some unknown degree of probability that the prolonged delay in resuscitation did contribute to [Alessio’s] outcome … The problem is the lack of information regarding the case due to scanty records makes it impossible to give a probability.
Professor Gluckman concluded his report by saying that he was of the view that the delayed resuscitation could be one factor that contributed to Alessio’s physical injuries.14
[20] Judge Ongley considered the central issue on appeal was whether acts or omissions of midwives at the time of Alessio’s birth caused or contributed to hypoxic ischaemic encephalopathy leading to Alessio’s cerebral palsy.
[21] After carefully considering the reviewer’s decision and the evidence, Judge Ongley said he reached essentially the same conclusions as the reviewer, namely, there was no causative link between any errors on behalf of the health
professionals responsible for Alessio’s care and his subsequent physical condition.
12 Report of J Ainsworth, 11 March 2002 at 1.
13 Report of P D Gluckman, 25 February 2005 at 2
14 At 2-3.
[22] Judge Ongley reasoned that the strongest support for Alessio’s case was the opinion by Professor Gluckman, who analysed the issue of causation by identifying three periods in which something may have occurred. Two of those periods were when Alessio’s heart rate was apparently reduced when his mother was in labour, and the third period related to the time leading up to Alessio’s resuscitation. Judge Ongley considered Professor Gluckman’s evidence merely pointed to a possibility and not a probability as to whether the delay in resuscitating Alessio contributed to his medical condition.
[23] Judge Ongley examined the approach taken by Dr Ainsworth, who posed three questions in determining whether or not Alessio’s medical condition was caused by medical error:
(1) Would Alessio have fared better if he had been delivered earlier? (2) Was there any indication to deliver Alessio earlier?
(3)If so, why was he not delivered earlier and did this inaction amount to medical error?
Dr Ainsworth’s answers to these questions led him to the conclusion Alessio’s case
was not one of medical misadventure.
[24] Judge Ongley reached the following conclusions:
(1)It was possible that electronic foetal heart rate monitoring could have produced readings showing a reason for early delivery or for a paediatrician to be present at the birth. Because such monitoring was not done, it was speculative whether any results would have shown a need for intervention.
(2)There might have been a sign of acute hypoxia before birth if there had been electronic monitoring. However, hypoxia can be “silent” and it was therefore not possible to determine if earlier intervention was required.
(3)The evidence fell short of showing that there was probably a detectable event that would have alerted the staff to the need for urgent resuscitation.
(4)There was no clear opinion whether urgent resuscitation would have made a difference. Professor Gluckman thought it possible that earlier resuscitation might have made a difference but he expressed his view as a mere possibility.
(5)The evidence only went so far to show a possible delay amounting to medical error. The evidence was not sufficient to establish personal injury caused by medical error.
[25] Judge Ongley noted that ACC did not consider whether Alessio’s physical injuries were caused by medical mishap. I explain that component of medical misadventure in paragraphs [41] to [43] of this judgment. However, Judge Ongley reasoned that Alessio’s circumstances did not amount to medical mishap because there was insufficient evidence to establish the requisite level of causation and rarity of outcome.
Leave to appeal
[26] The application for leave to appeal was heard by Judge Henare in March
2015. The reason for the delay in bringing the appeal was said to be the need to consider the Court of Appeal’s decision in Sam v Accident Compensation Corporation, which concerned a child born with cerebral palsy as a result of oxygen deprivation during the later stages of labour.15
[27] Judge Henare granted leave to appeal on the following questions:
(1)Did Judge Ongley apply too stringent a legal test with respect to causation associated with resuscitation delays?
15 Sam v Accident Compensation Corporation [2010] NZCA 321, [2010] NZAR 490.
(2)Did Judge Ongley err in concluding that because the antecedent factors comprising a finite list of causative agents could only be identified as amounting to possibilities, that causation was not established to the requisite standard?
Legal principles
[28] Alessio’s case is governed by the Accident Insurance Act 1998.
[29] Under that Act, cover could exist where a person suffered personal injury caused by medical misadventure. Medical misadventure was defined to mean either medical error or medical mishap.
[30] “Medical error” was defined in s 36 of the Accident Insurance Act 1998 in
the following way:
36 “Medical error”
(1) Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.
(2) Such a failure … to, for example,—
…
(b) Diagnose correctly an insured's medical condition; or
(c) Give the insured treatment.
(3) Medical error does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results.
[31] “Medical mishap” was defined in s 37 of the Accident Insurance Act 1998 in the following way:
37 “Medical mishap”
(1) Medical mishap means an adverse consequence of treatment, when—
(a) The treatment is given to an insured, is given properly, and is given by or at the direction of a registered health professional; and
(b) The adverse consequence is suffered by the insured; and
(c) The adverse consequence is severe (as defined in subsection
(2)); and
(d) The likelihood that treatment of the kind that was given would have the adverse consequence is rare (as defined in subsections (3) and (4)).
(2) The adverse consequence is severe only if it results in the insured—
(a) Dying; or
(b) Being hospitalised as an inpatient for more than 14 days; or
(c) Suffering significant disability lasting more than 28 days in total.
(3) The likelihood that treatment of the kind that was given would have the adverse consequence is rare only if the probability is that the adverse consequence would not occur in more than 1% of cases in which that treatment is given.
…
Causation
[32] The principal issue in this case is whether Alessio’s physical injuries have been caused by either “medical error” or “medical mishap”.
[33] The onus has always been on ACC claimants to prove on the balance of probabilities that they have cover.16 Thus, the onus was on the parents of Alessio to prove on the balance of probabilities that his physical injuries were caused by either medical error on the part of his healthcare providers or met the criteria for being a medical mishap. I have recently noted that causation has given rise to many challenges in cases in cognate jurisdictions relating to claims arising from medical consultations, diagnoses and treatments.17 These challenges arise from difficulties sometimes encountered in medical litigation with the traditional “but for” test of
causation. Those difficulties have led to the adoption of a number of refinements to
16 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR
374 (CA); Accident Compensation Corporation v Ambros, above n 1.
17 Thompson v Accident Compensation Corporation [2015] NZHC 1640, [2015] NZAR 1163; citing Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] 2 WLR 768; Wallace v Kam [2013] HCA 19, [2013] 250 CLR 375; Cojocaru v British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357; Wilsher v Essex Area Health Authority [1988] AC 1074 (HL); Hotson v East Berkshire Area Health Authority [1987] AC 750 (CA and HL).
the law of causation in medical and other personal injury cases. These refinements have included:
(1) holding a defendant liable for making a material contribution to a
plaintiff’s injury;
(2) holding a defendant liable for creating a material risk of a plaintiff ’s
injury;
(3) holding a defendant liable for a plaintiff’s lost chance of a better
medical outcome; and
(4) holding a defendant liable for not obtaining a plaintiff’s informed
consent to undertaking the treatment or surgery in question.
[34] Some of these concepts, and in particular the loss of chance formula, are
difficult to reconcile within New Zealand’s accident compensation regime.
[35] In Accident Compensation Corporation v Ambros, the Court of Appeal examined the requirements of causation in the context of a claim for medical misadventure under the Accident Insurance Act 1998. In Ambros, the Court of Appeal explained Judges should assess causation against the background of what constitutes the normal course of events:18
(1) the whole of the lay evidence; (2) the medical evidence;
(3) the statistical evidence; and
(4) should not confine their analysis to expert evidence.
[36] It was explained by the Court of Appeal that the only time a Judge is not able to draw a robust inference in relation to causation is where medical science says
18 Accident Compensation Corporation v Ambros, above n 1, at [67].
there is no possible connection between the events and the claimant’s physical injury. As a consequence, the Court of Appeal recognised that causation could be inferred by the courts in some cases where the medical evidence was prepared to recognise only the possibility of a connection between treatment and a patient’s physical injuries.19
Analysis
Medical error
[37] The primary focus of ACC and the reviewer was on whether there was evidence of medical error on the part of the health professionals responsible for Alessio’s care. That issue required consideration of whether or not there was evidence of the midwives and/or paediatrician failing to adhere to the standards reasonably expected of them in the circumstances.
[38] Medical error was introduced into the accident compensation legislation in
1992.20 It was a concept that did not fit comfortably within the “no fault” accident compensation regime. Medical error and medical mishap were removed from the accident compensation legislation in 2005 when cover for medical misadventure was replaced with cover for “treatment injury”, which does not require proof of fault on the part of healthcare professionals.21
[39] One of the difficulties associated with claims for cover for medical misadventure based upon medical error was that health professionals were naturally resistant to allegations they had been negligent. Claims for medical misadventure were often dominated by intensive litigation about whether a health professional was at fault. The present case illustrates this understandable phenomenon.
[40] In my assessment, ACC, the reviewer and Judge Ongley were entirely correct when they concluded there was insufficient evidence to establish any medical error in the way Ms Clarke’s labour was managed or in the way Alessio was treated
following his birth. All associated with Alessio’s care appreciate that earlier
19 Accident Compensation Corporation v Ambros, above n 1, at [69].
20 Accident Rehabilitation and Compensation Insurance Act 1992, s 5.
21 Injury Prevention, Rehabilitation and Compensation Amendment Act (No 2) 2005.
resuscitation would have been desirable but failing to adhere to standards of perfection does not constitute evidence of medical error as it was defined in the Accident Insurance Act 1998. The evidence falls well short of establishing any medical error in this case.
Medical mishap
[41] Cover for medical misadventure based upon medical mishap required a claimant to establish he or she suffered an adverse consequence of treatment. The concept “adverse consequence” was further defined by reference to “severity” and “rarity”.
[42] “Severity” was defined in s 37(2) of the Accident Insurance Act 1998. That definition included a requirement the claimant suffered significant disability lasting more than 28 days. It is not disputed this requirement of the definition of “medical mishap” exists in the present case. “Rarity” was defined in s 37(3) of the Accident Insurance Act 1998 to mean an adverse consequence that did not occur in more than one per cent of cases in which treatment was given.
[43] ACC did not consider Alessio’s claim on the basis of it being medical misadventure through medical mishap. The reviewer’s focus was similarly upon whether Alessio had suffered from a medical error. Judge Ongley recognised the possibility Alessio may have suffered from a medical mishap, but ultimately concluded there was no evidence that satisfied the “rarity” component of the definition of medical mishap. Judge Ongley also concluded that the evidence fell short of establishing Alessio’s physical injuries were caused by the treatment he received.
Causation
[44] Judge Ongley cannot be criticised for having taken a more restrictive approach to causation than that which was subsequently articulated by the Court of Appeal in Ambros.
[45] When I examine Professor Gluckman’s opinion, I am led to the conclusion that the robust approach to causation explained in Ambros may have led Judge Ongley to reach a different conclusion about whether Alessio’s physical injuries were an adverse consequence of his treatment, particularly as Dr Ainsworth recognised in his report there was a possible connection between Alessio’s treatment and his physical injuries.
[46] This is not a case in which the medical evidence demonstrates that Alessio’s treatment could not have caused his physical injuries. Professor Gluckman’s evidence recognises that it is possible there was a causative link between Alessio’s physical injuries and the lapse in time that occurred in resuscitating him.
[47] I need only answer the first of the two questions posed by Judge Henare in her leave judgment. I answer that question in the following way:
Judge Ongley applied too stringent a legal test with respect to causation associated with resuscitation delays [in this case].
[48] The District Court will now need to reconsider the issue of causation in light of Ambros. It is therefore not appropriate for me to say more on that issue.
[49] Judge Ongley properly recognised there was no evidence about the rarity component of the definition of “medical mishap” in s 37 of the Accident Insurance Act 1998. That is a deficiency which will need to be addressed before the case is reconsidered by the District Court.
Conclusion
[50] The appeal is allowed. The case is remitted back to the District Court for reconsideration of whether or not Alessio’s physical injuries were the consequence of medical misadventure through medical mishap.
[51] Alessio is entitled to costs on a scale 2B basis in relation to the hearing in the
High Court.
Solicitors:
John Miller Law, Wellington for Appellant
Young Hunter – Auckland Branch for Respondent
D B Collins J
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