Karmarkar v Accident Compensation Corporation

[2019] NZHC 294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001872

[2019] NZHC 294

IN THE MATTER OF

the Accident Compensation Act 2001 under s 162 substituted by s 4(1) of the Injury Prevention, Rehabilitation and

Compensation Amendment Act 2003

BETWEEN

MADHAV HARI KARMARKAR

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	21 February 2019
Appearances:	M H Karmarkar (Self-represented Plaintiff) in Person D K L Tuiqereqere for the Defendant
Judgment:	28 February 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 28 February 2019 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:    Medico Law Ltd, Auckland

Copy To:     M H Karmarkar (Plaintiff), Auckland

KARMARKAR v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 294 [28 February 2019]

[1]                   In 2016 Mr Karmarkar lodged a claim with the Accident Compensation Corporation for treatment injury arising out of gallbladder surgery. That claim was declined by the Corporation. Mr Karmarkar’s subsequent appeal of that decision was dismissed,1 as was his application for leave to appeal to this Court.2

[2]                   Mr Karmarkar now seeks special leave to appeal under s 162 of  the  Accident Compensation Act 2001 (ACC Act).

[3]                   The Corporation opposes Mr Karmarkar’s application for leave on the basis that he has not identified an error of law.

What happened?

[4]                   On 12 April 2016, Mr Karmarkar was admitted to Auckland Hospital with stomach pain. He was discharged on 15 April 2016 following investigations undertaken by the hospital. Mr Karmarkar was told he would need a cholecystectomy, which, in layperson terms, is gallbladder surgery.

[5]                   Mr Karmarkar was referred to a surgeon, Mr John Dunn, for the surgery.    Mr Dunn saw Mr Karmarkar on 19 April 2016 and arranged for an ultrasound the same day. The surgery was scheduled for 21 April 2016.

[6]                   The surgery went ahead that day. However, in the course of the operation, and after conferring with colleagues, Mr Dunn decided not to proceed with the cholecystectomy due to the acute and chronic inflammation of Mr Karmarkar’s gallbladder. Mr Dunn was unable to clearly identify the cystic duct at the time, and he described Mr Karmarkar’s unique gallbladder anatomy as confusing. Mr Dunn was concerned that Mr Karmarkar might have been suffering from Mirizzi syndrome. In a report to Mr Karmarkar’s doctor, Mr Dunn explained this as a syndrome where the cystic duct is fully effaced and a stone is impacting on the common duct. A cholecystostomy tube was inserted to drain the gallbladder with a view to arranging surgery at a later time.

1      Karmarkar v ACC [2018] NZACC 41.

2      Karmarkar v ACC [2018] NZACC 138.

[7]                   Due to Mr Karmarkar’s unique gallbladder anatomy, Mr Dunn referred him to Mr Bartlett, a specialist hepatobiliary surgeon. Over the subsequent months, the tube remained inserted, and several investigations were undertaken by the hospital. These included a MR Cholangiopancreatography (MRCP) undertaken on three occasions: 26 April 2016, 15 June 2016, and 13 July 2016. As a result of those investigations, it was concluded that Mirizzi syndrome was not present. Mr Bartlett successfully performed the gallbladder surgery on 29 August 2016.

[8]                   Mr Karmarkar subsequently lodged a claim for treatment injury cover arising out of the surgery on 21 April 2016. The Corporation undertook an investigation and declined the claim on 12 October  2016.  In  doing so, the Corporation referred to  Mr Karmarkar’s complex medical condition and determined that the decision to insert a drain into the gallbladder was appropriate and necessary treatment. It found that there was no additional injury over and above that underlying condition, and so no physical injury had been caused by the treatment. The claim for cover was declined.

[9]                   Mr Karmarkar challenged that decision through the ACC review and appeal process. The decision was upheld on review on 21 March 2017. Mr Karmarkar appealed to the District Court.

The District Court decisions

Appeal

[10]               Mr Karmarkar’s appeal was heard by Judge Henare in the District Court.    Mr Karmarkar argued that he had not received appropriate preoperative treatment. In particular, he said that non-surgical options to treat his gallbladder condition were not investigated. Mr Karmarkar argued that a MRCP ought to have been undertaken before the surgery on 21 April 2016, and he produced medical literature in support of his contentions.

[11]               Judge Henare set out the history to the claim, and the relevant statutory provisions. The Judge identified the two issues to be determined in the appeal as follows:3

(a)Whether there was a failure by Mr Dunn to arrange for additional preoperative assessments to investigate Mr Karmarkar’s condition and/or a failure to consider non-surgical options to treat the condition?

(b)If so, what personal injury did Mr Karmarkar suffer as a result of the failure or failures?

[12]               In relation to the first question, the Judge referred to the medical literature attached to Mr Karmarkar’s submissions in support of his contention that an MRCP ought to have been undertaken before the surgery on 21 April 2016. She considered those articles could not be taken into account, because Mr Karmarkar did not have any expert commentary on them. The case of Green v ACC was cited in support of that approach.4

[13]               The Judge relied on a report from Mr Dunn, and an opinion from an independent professor of surgery and surgical research at Auckland City Hospital, Professor Windsor in reaching her decision. The Judge found that this evidence “overwhelmingly” showed that the investigations undertaken by Mr Dunn were comprehensive, and nothing should have been done differently.

[14]               Accordingly, the Judge was satisfied that there was no basis for concluding that there had been a failure in the treatment provided by Mr Dunn, and it followed that no personal injury was suffered.

Leave to appeal

[15]               Mr Karmarkar then applied to the District Court for leave to appeal to this Court. That came before Judge Harrison. After referring to the background, the Judge turned to consider whether there was a question of law that should be referred to the High Court. The Judge’s decision was summarised in the following paragraphs:

3      Karmarkar v ACC [2018] NZACC 41 at [11].

4      Green v ACC [2012] NZACC 272 at [17].

[11]      Mr Karmarkar’s concern was that the cholecystostomy tube, which was in place for just over four months, should not have been inserted, and that other preoperative procedures should have been undertaken, particularly that a Magnetic Resonance Cholangiogram should have been undertaken. There was no evidence before the Judge supporting that, and in any event, as described, the procedure followed by Mr Dunn was entirely successful leading, as it did, to the successful removal of the gall bladder.

[12]      No question of law for reference to the High Court has been identified. The insertion of the cholecystostomy was clearly a necessary part of the treatment and being so cannot amount to a treatment injury.

[16]Accordingly, the application for leave to appeal was dismissed.

The law

[17]               Section 162 of the ACC Act provides that a party may appeal a decision from the District Court to the High Court on a point of law if it has leave  from the  District Court to do so.5 If the District Court refuses to grant leave, the High Court may grant special leave to appeal.6

[18]The principles applying to an application for special leave were approved in

Kenyon v Accident Compensation Corporation as follows:7

(a)The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;

(b)Although it is ultimately a matter for discretion of the court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a real prospect of success;

(c)The fact that special leave is required is significant, and suggests that leave ought not to be granted as a matter of course;

(d)It is for the applicant to show that leave is required in the interests of justice; and

5      ACC Act, s 162(1).

6      ACC Act, s 162(3).

7      Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].

(e)As leave has already been refused by the District Court, there will normally have to be some extraordinary factor which has not been properly taken into account for special leave to be granted by  the High Court.

Is there an error of law?

[19]               Mr Karmarkar contends that Judge Henare’s treatment of the facts amounts to an error of law. He raises several points in support of that claim. Each of those points are addressed below.

[20]               First, Mr Karmarkar says that the Judge erred by failing to consider whether the entire first surgery (with the exception of the insertion of a cholecystostomy tube) constituted a treatment injury.

[21]               This point raises an issue about the treatment injury Mr Karmarkar says he suffered. When Mr Karmarkar made a claim for treatment injury, he initially characterised it as a claim for a “failed laparoscopic cholecystectomy”. The particular injury was identified as “a cholecystostomy tube with a bag draining bile over the last three months since 21 April 2016”.

[22]               However, the nature of the treatment injury was subsequently refined. The argument pursued on appeal was not with the surgery itself, or the decision to insert a tube. Rather, Mr Karmarkar’s claim was that there was a failure to undertake preoperative investigations which would have revealed that the first operation was not necessary at all. Framed in those terms, Mr Karmarkar argued that the treatment injury was not a “failed” operation, but the fact that the operation was unnecessary.

[23] I am satisfied that the Judge understood and approached the appeal on that basis. That is reflected in her identification of the key issues set out at [11] above. Further, having reviewed the evidence, the Judge concluded that there was no failure by Mr Dunn to arrange for additional preoperative investigations or assessments, and those that were undertaken were comprehensive.8 The Judge found “there is no

8 At [19].

evidence to support the contention that the surgery was unnecessary or could have been avoided”. I do not consider the Judge made any error of law in this respect.

[24]               Second, Mr Karmarkar says that the Judge failed to address why the MRCP was not undertaken prior to surgery. That ground of the application cannot be sustained. The Judge referred to Mr Karmarkar’s contentions regarding the MRCP and the extensive medical literature produced by Mr Karmarkar in support of his claim. However, she determined that she was unable to draw any conclusions from that literature in the absence of specialist comment upon it. The Judge found that there was no evidence to support a failure by Mr Dunn to arrange an MRCP investigation.9 In the circumstances of the appeal, that was all that was required. There was no error of law in the Judge’s approach.

[25]               Third, Mr Karmarkar says the Judge erred in her assessment of the evidence by:

(a)giving paramount importance to the opinion of Professor Windsor; and

(b)failing to take into account Mr Bartlett’s report, the report of the expert conducting the Magnetic Resonance Cholangiogram, Mr Karmarkar’s unusual gallbladder anatomy, and the literature concerning MRCP.

[26]               Professor Windsor was asked by the Corporation to provide clinical advice on Mr Karmarkar’s claim. He commented that “the preoperative investigation, surgical planning, operation, intraoperative consultation, and postoperative care was exemplary”. He also observed that it is not possible to foresee whether it is possible to achieve a cholecystectomy in some cases without a trial dissection – as was done in Mr Karmarkar’s case. Professor Windsor confirmed those comments in response to Mr Karmarkar’s specific (written) question about whether the MRCP test had been missed in the preoperative investigations phase.

[27]               The Judge did not make any discernible error by relying on this evidence. There was no other independent expert evidence before the Court. Although

9 At [23].

Mr Karmarkar had produced medical literature in support of his claim, he had not engaged a specialist to comment on that literature or to respond to the evidence of Mr Dunn and Professor Windsor. The Judge noted in her judgment that Mr Karmarkar was candid about his attempts to obtain evidence to support his claim, including from Mr Bartlett, but he was unsuccessful in doing so.10 The Judge was entitled to rely upon the evidence of Professor Windsor in those circumstances.

[28]               Further, I am not persuaded that the Judge failed to take into account relevant factors. As to the particular factors identified by Mr Karmarkar, I respond as follows.

(a)Mr Bartlett’s reporting letter to Mr Karmarkar’s general practitioner was included in the bundle of documents before the Judge, along with a radiology report regarding the MRCP undertaken on 26 April 2016. Mr Karmarkar claimed that these reports indicate “the completely different and difficult physical condition of the patient before the first unsuccessful surgery”. That may be so, but what these reports do not show is that a MRCP should have been undertaken at the preoperative stage or that the investigations that were undertaken were deficient. They were, accordingly, of limited relevance to the appeal.

(b)The fact that the Judge did not refer to Mr Karmarkar’s unusual gallbladder anatomy in her judgment does not mean she was not aware of it. But, more importantly, this feature was of contextual relevance only. It had no bearing on the determination of the appeal. There could be no error of law in failing to take it into account.

(c)The medical literature produced by Mr Karmarkar was referred to by the Judge, but she declined to take it into account because there was no specialist comment upon it. There was no error in that approach. The material was not tailored to Mr Karmarkar’s particular circumstances, and Judges cannot be expected to interpret and apply medical literature in the absence of expert guidance and assistance.

10 At [20].

[29]               In summary, I am not persuaded that the Judge erred in the ways Mr Karmarkar alleges, let alone erred in law. Mr Karmarkar is unable to meet the statutory threshold for special leave to be granted. The application for leave must accordingly be dismissed.

Result

[30]The application for special leave to appeal is dismissed.

Edwards J