Patient A v Health Board X HC Blenheim CIV-2003-406-14
[2005] NZHC 1297
•15 March 2005
ORDER FOR PERMANENT SUPPRESSION OF PLAINTIFF'S NAME. EXISTING ORDER FOR SUPPRESSION OF DEFENDANTS' NAMES TO BE DISCHARGED AFTER 14 DAYS UNLESS THAT DECISION CHALLENGED ON APPEAL.
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV-2003-406-14
BETWEEN PATIENT A
Plaintiff
AND
HEALTH BOARD X
First Defendant
AND
DOCTOR B
Second Defendant
Hearing:
8-10 November 2004
Appearances: Q A Davies and B A Senior for Plaintiff
C J Hodson QC and A A Lewis for First and Second Defendants Judgment: 15 March 2005
RESERVED JUDGMENT OF BARAGWANATH J
Solicitors:
Gascoigne Wicks, Blenheim for PlaintiffBartlett Partners, Wellington for First and Second Defendants
Counsel:
Mr C J Hodson QC, Wellington
PATIENT A V HEALTH BOARD X And Anor HC BLE CIV-2003-406-14 [15 March 2005]
Table of contents
Para
Introduction [1]
The facts [5]
Ms A’s account [12]
Dr B’s account [14]
Has Ms A established that she was not adequately informed of the risk? [20]
Fiduciary duty [29]
Accident Compensation [42]
The 1992 Act [44]
The 1998 and 2001 Acts [46]
Submissions [47]
Discussion as to ACC [50]
Personal injury by accident [53]
Personal injury [54]
By accident [57]
Medical misadventure [60]
Comment [64]
Publication [77]
Result [81]
Introduction
[1] On 2 June 1999 the second defendant, Dr B, performed a laparoscopic tubal occlusion on the plaintiff, Ms A, at a hospital administered by the first defendant Health Board X. The purpose of the operation was to sterilise Ms A, whose family was complete.
[2] There is no complaint about the competence of Dr B or of the operation which entailed the fixing of Filshie clips onto Ms A’s Fallopian tubes. But the well recognised contingency of a clip’s failing occurred and on 23 March 2001 Ms A gave birth to a child with Down Syndrome. She now sues for alleged failure to warn her of the contingency of failure both Dr B and also Health Board X which defence counsel accept is responsible for his conduct. The causes of action are in negligence and for breach of fiduciary duty.
[3] Mr Hodson QC and Mr Lewis for the defendants accept that it was the duty of Dr B to inform Ms A of the risk of failure. In Chester v Afshar [2004] 3 WLR 927, 932-3 (HL) Lord Steyn said
…Individuals have the right to make important medical decisions affecting their lives for themselves… Surgery performed without the informed consent of the patient is unlawful. The court is the final arbiter of what constitutes informed consent. Usually, informed consent will presuppose a general warning by the surgeon of a significant risk of the surgery.
…if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.
In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed of a small, but well established, risk of serious injury as a result of surgery.
These statements confirm the analysis in Smith v Auckland Hospital Board [1965] NZLR 191 (CA), in Reibel v Hughes (1981) 114 DLR (3d) 1 and in Rogers v Whitaker (1992) 175 CLR 479 and apply to the risk of failure of sterilisation in the present case. Communication must be such as to adequately inform the patient, taking into account the patient’s capacity to understand it and the purpose for which the information is relevant: B v The Medical Council HC AK 11/96, 8 July 1996 per Elias J at p 17.
[4] The question is whether Ms A has established on the balance of probabilities that Dr B failed to obtain her informed consent to the procedure. Mr Hodson QC accepts that if he did not obtain such consent there was breach of duty and negligence on the part of the doctor. In that event he submits that the claim is barred by s 317 of the Injury Prevention, Rehabilitation and Compensation Act 2001.
The facts
[5] Patient A, a lady of 39 years, had completed her family of four children and wished to avoid the risk of further pregnancy or the need to continue conventional methods of birth control. She saw her general practitioner on 19 February 1999. He did not tell her about the possibility of failure of the operation. After brief consultation he wrote to Dr B, who is a highly qualified and experienced obstetric and gynaecological specialist
I would be grateful if you could see this lady who has requested tubal ligation… She is quite certain she doesn’t want any further children and has requested sterilisation…
[6] On 1 March 1999 Ms A attended Dr B at the hospital in a consultation room which was shared with other private specialists. The consultation included a physical examination for which a nurse was in attendance. She did not remain for the discussion.
[7] There is a sharp conflict of evidence as to what took place at the consultation. To see it in context it is convenient to first to describe the procedure on which Dr B was advising. It entails a double insertion into the abdomen of the patient. The first is of a laparoscope or narrow telescope about the width of a pen in a small cut just below the navel. Carbon dioxide gas is introduced to make a space in which the organs can be seen. The second insertion is of the Filshie clip applicator at a point near the pubic hair line. Using the laparoscope, which contains a fibre optic light, the surgeon is able to view on a screen both the internal organs and the tip of the applicator. The Fallopian tubes branch laterally from the uterus to left and right, linking it with the ovaries. Dr B’s very clear diagram showed the point of application of each of the two clips at the isthmus or narrow point of each Fallopian tube. The titanium and rubber clip comprises two jaws joined by a hinge. The open jaws are positioned on each side of the Fallopian tube and they are then closed and kept shut by inserting the tip of one jaw under a latch at the end of the other. The effect is to compress and therefore occlude the tube so that ova cannot pass from the ovary to the uterus.
[8] Internationally over the past two decades over four million pairs of Filshie clips have been applied. Usually the clip proves durable and will remain in position indefinitely. But in some circumstances it can become dislodged so that the obstruction of the Fallopian tube is removed and pregnancy can occur. The statistical failure rate is said to compare well with that of other techniques. But its existence is undoubted.
[9] The contemporary documentary evidence comprises a page of hand-written notes prepared by Dr B, a diagram he prepared for Ms A showing the uterus and Fallopian
tubes and Filshie clips in position, and a letter he dictated after Ms A had left but before seeing his next patient. The notes contain particulars of Ms A’s age, number of children and methods of birth control. The history recorded two unexpected pregnancies. The notes recorded that a tubal ligation was to be performed; that a letter was to be written (to Ms A’s general practitioner with a copy to the admissions officer of the hospital); and that she was to attend a pre-admission clinic. The amount of Dr B’s fee of $60 was recorded.
[10] The letter, which was typed and signed on 8 March 1999, was headed “Diagnosis – request for sterilisation”. After thanking the general practitioner for his reference it recorded Ms A’s age and number of children. It continued
She… feels that her family is complete. She has requested sterilisation. She is currently using barrier method contraception. She has noted that her periods, although regular previously on the pill, are now heavy and irregular… Two of her four children were a result of contraception failure… The operation of laparoscopic tubal occlusion was discussed including its small failure rate and irreversible nature.
[11] Apart from the original sent to the general practitioner copies were filed among Dr B’s records and on the hospital file. Dr B deposed that copy was also sent to Ms A together with his account. Ms A denied receiving it; she moved house at about that time and it may have gone astray.
Ms A’s account
[12] Ms A’s account was that she and her husband had separated but had reconciled earlier in the year. Having had four children she had medical concerns that led her to consider the options for contraception. A back injury had led to fusion in her spine and with very little disc left in her two lower vertebrae she suffered significant pain and stopped work at 4 pm as a result. She was conscious that carrying and lifting a baby would strain her back. She had been using contraceptive pills but had been feeling massive pains up the inside of her legs and was concerned about blood clots. She therefore took herself off the pill and started using condoms and arranged to see her general practitioner “about getting my tubes tied”. Her husband who was some years younger was reluctant to undergo a vasectomy.
[13] Her evidence was that during the consultation Dr B had no nurse present. He was professional and friendly. They discussed the reason why she wanted the operation. Dr B was careful to ensure that she understood that the operation was permanent, asking her twice whether she was sure; she said that she was. They discussed the nature of the operation but did not go into great detail. During the consultation Dr B handed her a pamphlet which contained an anatomical diagram of the Fallopian tubes and ovaries. There was no discussion of possible risk of failure of the operation. Nor was there discussion about other means of achieving sterilisation. She understood that there was no risk of pregnancy after the sterilisation operation.
Dr B’s account
[14] Dr B gave an unchallenged account of his experience of working with Filshie clips since the 1980s. Since 1992 he has performed some 600 laparoscopic tubal occlusions and Ms A’s is the only failure of which he is aware. He has never been the subject of complaint to the Health and Disability Commissioner and said that only two claims for medical mishap have been accepted by ACC in relation to his work which is almost unheard of for obstetricians and gynaecologists in New Zealand. Overseas experience in a litigious environment has taught him the absolute necessity of a sound informed consent process for laparoscopic tubal occlusions. He described himself as meticulous about warning of possible failure and recording that the warning has been given. While unable to recall specifically what was said to Ms A he described his standard practice as being to explain the insertion of the instruments into an inflated abdomen to allow the procedure to be performed. He then either showed the patient a picture or drew a diagram of the anatomy and showed where the clips are placed. He explained that they are like little metal paper clips that hook over and lock in when applied by the applicator to the isthmus of the Fallopian tube. He usually said that the clips are like aeroplane wings and designed to stay on but regrettably sometimes they come off and as a result of that there is a failure rate. He also explained other relevant facts about the procedures such as its irreversibility. At the time he saw Ms A he said that the failure rate based on international figures was 1 in 500. Soon after her operation he
revised those figures to 1 in 200 to reflect a recent Australasian study. When working in the public hospital he gives his patients two pamphlets, one an account of laparoscopic surgery and the other a document prepared by an experienced nurse containing the statement
The procedure may be irreversible. Also note that 1 in 200 may fall pregnant after the procedure. You will need to sign informed consent on these two important points and agree to these risks. There are no guarantees.
Those pamphlets were not however provided to private patients. Doctor B’s practice was to include them in the copy of his letter to the referring doctor sent to the patient together with his account. He was adamant that such pamphlets were included with the copy of the letter of 8 March sent to Ms A.
[15] Referring to the diagram of the organs he said it was prepared during long discussion with Ms A about the procedure. He said that in showing her where the clips would be placed and how the procedure would be performed he would have explained the failure rate and the irreversibility of the procedure among other points. He said that consultation would have taken 45 minutes as it takes time to discuss the operation, go through the history, perform the operation and discuss the issues relevant to the consent. Cross-examined on his diary entry which recorded Ms A’s appointment for 3 pm on 11 March and another entry “[Y]’s party 3.30 with six guests” he responded that this was a reminder to do something in connection with his son’s birthday that day. He denied that that event caused him to depart from his normal pattern. He said that when Ms A left he dictated the letter. He was adamant that its reference to the small failure rate repeated what he had told Ms A during the consultation that had just concluded. He was aware that Ms A would be seen by the pre-admission nurse to sign the form of consent to operation. He did not speak to her again until 2 June 1999 when he asked her how she was, checked her details and checked that the consent had been signed as had occurred on 31 May 1999. He then proceeded to perform the procedure without incident or consultation. There was some evidence of Ms A’s seeing him on 24 August 2000 for an ante-natal visit and correspondence with Ms A’s solicitors. There is nothing of assistance as to the credibility of either witness.
[16] A nurse who prepared the pamphlet referring to the failure rate of Filshie clips had had some seven years experience at the hospital working in gynaecology with Dr B mainly as a chaperone. It was her experience that he was absolutely meticulous about everything he did at work and without fail followed the same process whenever he saw a patient especially with laparoscopic tubal occlusions. She said she had never heard Dr B perform an initial consultation for laparoscopic tubal occlusion without telling the patient about the risk of failure rate. She said he was very particular and pedantic about going through this particular aspect of the procedure. Her evidence by affidavit was unchallenged.
[17] The defence called the pre-admission nurse whom Ms A saw on 31 May 1999 when she gave her consent to the procedure. The nurse had no specific memory of the event and gave evidence of her usual practice. That is to read the surgeon’s letter to the general practitioner after the appointment which would have informed her that Ms A’s family was complete, that she had requested the sterilisation, that a pregnancy test was to be ordered at the pre-admission clinic and the result obtained via the surgery and that discussion had been taken between Ms A and Dr B regarding the risk of failure. The hospital’s day surgery unit nursing sheet referable to the pre-admission check was produced together with a request for treatment form. It was the hospital’s practice for a registered nurse to counter-sign the consent form. It was given to the patient to read and the nurse would then discuss the operation and the anaesthetic. Her usual practice was and still is to reinforce the point made by the surgeon that tubal occlusions had a small failure risk. She said that she would often discuss this issue by talking about a friend who had become pregnant after a tubal occlusion. Her practice was then to ask the patient to sign and she counter-signed the “Request for surgical operation/procedure: acknowledgement of information and consent form”. Asked how important it is to discuss the failure risk she said
I’ve always considered it very important. We often get patients the first time they actually come… they don’t always take everything in they don’t always remember everything that is said and when I’m signing the consent form I’m not happy unless I give them all the information.
[18] Asked in cross-examination for any explanation of why Ms A did not recall being told anything about the procedure she replied
It’s not possible to remember absolutely everything we are told. It depends on whether the patient is stressed or not. She is in a strange environment. Sometimes people when they actually get to a pre-admission clinic they think “My god the operation is in three days time” or whatever and some of them start to panic.
[19] Asked to respond to Ms A’s evidence that if told about the risk of failure she would have taken steps to discuss the matter with Dr B, she said that if there had been a problem she would have contacted Dr B and got the patient to go back and see him. She confirmed that the consent form signed by Ms A which she had counter-signed made no reference to the risk of failure of the operation. It was a standard consent form used for all surgery.
Has Ms A established that she was not adequately informed of the risk?
[20] I found Ms A transparently honest. I am satisfied that she was in error in stating that there was no nurse present at the time of her consultation with Dr B. His evidence that he never conducted a physical examination without a chaperone was confirmed by the nurse’s account of the hospital’s practice. Ms A was of the impression that he handed her a pamphlet which she believed was on glossy paper. But shown Dr B’s diagram she acknowledged that it was quite possible that he drew that diagram and showed it to her to explain where he was going to attach the clips. In cross-examination she said that Dr B had made the suggestion of hysterectomy which upset her in view of the prospect of having to go on hormone replacement therapy. I am however satisfied that the occasion on which that discussion occurred was 28 August 2000 when Ms A went to the obstetrical clinic after a positive pregnancy test and the topics of termination of pregnancy and genetic amniocentesis were discussed. In a letter of that date to the referring general practitioner Dr B recorded Ms A’s decision not to undergo either procedure. He stated that the problem of fertility would remain and suggested that following the birth she undertake open Pomeroy type tubal ligation, entailing the removal of part of the Fallopian tube by surgery. His note recorded that some women in Ms A’s situation would opt for a hysterectomy but this caused great distress and should not be raised again in the future.
[21] It would however be simplistic to reason that the errors of recollection in these respects throw serious doubt on Ms A’s credibility on the critical topic of warning. They were of no direct relevance to Ms A’s future conduct. On her evidence had she been told of the risk on 31 May she would have withheld consent to what was not an essential operation until she had spoken to Dr B and if he had told her of the risk she would have asked for double clipping which she said was being performed by quite a lot of surgeons at the time or to have undergone the Pomeroy procedure of having her tubes cut and tied back. Asked by Mr Hodson to comment on the proposition that double clips are not shown to be safer but carry their own risks of complications, while the Pomeroy technique entails greater risk of pregnancy, she said she would have gone back to her husband and discussed the vasectomy question with him and would have had the opportunity to use other contraceptive means in conjunction with vasectomy or tubal occlusion.
[22] Ms A had in her youth been told that a twisted Fallopian tube meant that she could not conceive. But an unexpected pregnancy resulted. She later underwent a second unexpected pregnancy. Her marriage had encountered difficulty and the combination of factors, including her back problems, would have made her especially alert to the topic of contraceptive failure.
[23] Ms A is also a responsible woman who has dedicated herself to a particularly demanding and caring profession. Furthermore, as in Chester v Afshar (see [2003] QB 356, 367), “to her this was a unique and extremely important event, whereas for the defendant it was one of many”.
[24]On the other side is the powerful argument for Dr B
· his own account of an invariable practice of informing a patient of the risk was confirmed by his nurse whose evidence was unchallenged;
· the letter to the referring general practitioner dictated immediately after the consultation referred to his having given the warning;
· the practice of the nurse who secured Ms A’s consent to the procedure on 31 May 1999 was to repeat the warning.
[25] Dr B’s argument that hindsight must be stripped away points to the danger identified by Hutchison J in Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285, 289, of giving weight to an assertion by a plaintiff after the adverse consequences of a procedure have become known as to what she would have decided before the operation had she been given proper advice as to the risks it entailed.
[26] Those factors are to be considered against the backdrop of the parties’ contemplation of a standard well-proven procedure adopted by medical specialists and their patients for the very purpose of providing a safe and convenient method of birth control. Acceptance of risk is an ordinary element of life illustrated by the every day decision of electing to travel by motorcar. Nevertheless every patient who succeeds in a claim of failure to warn has overcome such argument.
[27] It is not enough for a doctor to provide information in a manner that a reasonable practitioner would not be satisfied would be assimilated by the patient. I have however concluded that there is no more justification in this case to reject the evidence as to Dr B’s standard procedures than there is to dispute the honesty of Ms A’s belief. The evidence available to me does not satisfy the burden of proof that the law imposes on Ms A to establish failure by Dr B and Health Board X clearly to inform her of the existence of risk of failure of the procedure. Equally possible is that information to that effect was treated by Ms A’s mind as within acceptable limits and that it therefore discarded the topic as something requiring further attention, which is why she did not later remember it.
[28] It follows from that conclusion that the negligence claim must fail. On that conclusion the affirmative defence that such claim would in any event be barred by the Injury Prevention, Rehabilitation and Compensation Act does not arise. But the point was fully argued and I return to it.
Fiduciary duty
[29] The alternative claim is of breach of fiduciary duty. The defendants admit that they owed a fiduciary duty to Ms A when undertaking the operation and to advise her of the consequences and potential consequences of the operation including the possibility of failure. But they otherwise deny that the fiduciary duty included a duty to obtain informed consent as to the procedure and advise her of the consequences and potential consequences of the operation including the possibility of failure.
[30]They further deny breach of the duty which was particularised as follows
a) That it is a notorious fact within medical factors that there is a possibility of failure of the operation;
b) The first and second defendant ought to have known of the possibility of failure of the operation;
c) That the first and second defendant failed to properly advise the plaintiff of the possibility of failure of the operation;
d)That failure constituted breach of fiduciary duty.
[31] Precision is required when analysing the nature of a fiduciary duty and the consequences of its breach. As has recently been observed in an analogous context
29. The relationship between a solicitor and his client is one in which the law reposes trust and confidence in the solicitor. It is a fiduciary relationship. But not every breach of duty by a fiduciary is a breach of fiduciary duty… If a solicitor is careless in investigating a title or drafting a lease he may be liable to pay damages for breach of his professional duty, but that is not a breach of a fiduciary of loyalty: it is simply the breach of a duty of care…
Hilton v Barker Booth and Eastwood [2005] 1 WLR 567 (HL), 575 per Lord Hope
[32] The policy of English law has been to exclude the doctor-patient relationship from the ambit of fiduciary duties. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 the appellant argued that as well as the obligation in tort to exercise reasonable care and skill a doctor should
in a suitable case be subject to the obligations attending a fiduciary relationship. The majority of the House of Lords made no reference to the submission. They concluded, as stated by Lord Diplock at pp 892-3
For the last quarter of a century the test applied in English law as to whether a doctor has fulfilled his duty of care owed to his patient has been that set out in the summing up to the jury by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582… The merit of the Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with the practice accepted as proper by a body of responsible and skilled medical opinion. There may have been a number of different practices which satisfy this criterion at any particular time. These practices are likely to alter with advances in medical knowledge. Experience shows that, to the great benefit of human kind, they have done so, particularly in the recent past. That is why fatal diseases such as smallpox and tuberculosis have within living memory become virtually extinct in countries where modern medical care was generally available.
In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health in any particular respect in which the patient has sought his aid, has hitherto been treated as single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment in the improvement of the physical or mental condition of the patient for which his services either as a general practitioner or specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfied the duty of care apply,… no convincing reason has in my view been advanced… that would justify treating the Bolam test as doing anything less than laying down a principle of English law that is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions as respects that patient.
Lord Diplock was concerned to apply the Bolam test to all aspects of a doctor’s healing functions and rejected a different test for cases of failure to provide advice and information.
[33] In his dissenting judgment Lord Scarman rejected the submission that the relationship between doctor and patient is of a fiduciary character entitling a plaintiff to equitable relief in the event of breach of fiduciary duty by the doctor. He said at p 884
The attempt fails: there is no comparison to be made between the relationship of doctor and patient with that of solicitor and client, trustee and cestui qui trust or the other relationships treated in equity as of a fiduciary character.
[34] In Bolitho v City and Hackney Health Authority [1998] AC 232 the House of Lords drew attention to the limits of Bolam/Sidaway, holding that if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the Judge is entitled to hold that the body of opinion is not reasonable or responsible.
[35] Those decisions must now be read in the light of Chester v Afshar: para [3] above.
[36] In New Zealand Jeffries J has described as fiduciary the medical practitioner’s duty of confidentiality: Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513, 520-521. The Court of Appeal at 537 did not mention the point. In L v Robinson [2000] 3 NZLR 499, a claim by a patient against a psychiatrist for negligence and breach of fiduciary duty by reason of gross professional misconduct in engaging sexually with her while she was his patient, Chisholm J found it unnecessary to consider an alternative claim for breach of fiduciary duty. In Collie v Nursing Council of New Zealand [2001] NZAR 74 Gendall J held that a nurse who received monetary gifts from her patients was guilty of breach of fiduciary duty and of professional misconduct. He said
[26] The relationship between doctor and patient is clearly a fiduciary relationship. So too is the relationship of the doctor’s employees to the patient and a practice nurse falls squarely into this category. Quite separately, and irrespective of the employer/ employee context, a nurse is in a fiduciary relationship with a patient. The essence of all fiduciary relationships, and they are of infinite variety, is the existence of “vulnerability” on the part of the person to whom the fiduciary owes special duties. Whilst patients, by reason of their health, age or other factors are often in a vulnerable nature or state, nevertheless the vulnerability arises out of the nature of the relationship so as to require professional disciplinary bodies to carefully scrutinise behaviour if, objectively viewed, it may be seen to disadvantage the patient or client.
[37] In Canada the Supreme Court has considered facts similar to those in L v Robinson. In Norberg v Wynrib [1992] 2 SCR 226, La Forest, Gonthier and Cory JJ considered that the sexual assault was in the tort of battery. Sopinka J considered that the plaintiff had consented and there was no battery but that there was breach of professional duty. L’Heureux-Dubé and McLachlin JJ considered that a fiduciary duty had been breached. At pp 270-2 McLachlin J said
The relationship of physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician's failure to fulfil his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence. In common with all members of society, the doctor owes the patient a duty not to touch him or her without his or her consent; if the doctor breaches this duty he or she will have committed the tort of battery. But perhaps the most fundamental characteristic of the doctor-patient relationship is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary….
I think it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship -- trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests. Recognizing the fiduciary nature of the doctor-patient relationship provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires.
[38] The High Court of Australia in Breen v Williams (1996) 186 CLR 71 rejected a patient’s claim to entitlement to inspect his medical records based on the submission of fiduciary duty that had been accepted by the Supreme Court of Canada in McInerney v MacDonald [1992] 2 SCR 138, 150. It was decided that unlike such accepted fiduciary relationships as trustee and beneficiary, agent and principal, solicitor and client, director of company and partners, the doctor-patient relationship is not an accepted fiduciary relationship. Since the relationship is one where the doctor requires ascendancy over the patient the patient is in a position of reposing trust in the doctor. Dawson and Toohey JJ stated at p 93
Equity requires that a person under a fiduciary obligation should not put himself or herself in a position where interest and duty conflict or, conflict is unavoidable, should resolve it in favour of duty and, except by special arrangement, should not make a profit out of concession. The application of that treatment is quite inappropriate in the treatment of a patient by a doctor or in the giving of associated advice. Here the duty of the doctor is established both in contract and in tort and it is appropriately described in terms of the observance of standard of care and skill rather than, inappropriately, in terms of the avoidance of a conflict of interest. It has been observed that what the law exacts in a fiduciary relationship is loyalty, often of an uncompromising kind, but no more than that. The concern of the law in a fiduciary relationship is not negligence or breach of contract. Yet it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest…
[39] The difference between the Australian approach and that of L’Heureux-Dubé and McLachlin JJ and of this Court is more than verbal and a choice must be made between them. In the light of the New Zealand authorities and the powerful judgment of McLachlin J the case for recognition in New Zealand of a doctor’s general fiduciary duty to a patient is in my view overwhelming. It is consistent with the legislative policy developed under the Health and Disability Act (para [65] below) and the modern reality described by Professor Jones (para [67] below). These considerations were not at the forefront of Sidaway and in England the general statement of Lord Diplock may require review in their light and that of Henderson v Merrett Syndicates Limited [1995] 2 AC 145 (acknowledging in the context of the relationship between Lloyd’s names and underwriting agents the potential for co-existing liabilities in contract tort and breach of fiduciary duty). To exclude the doctor-patient from the class of fiduciary relationships would be to allow past classifications to distort what I have called the modern reality.
[40] But the essence of breach of fiduciary duty is the fiduciary’s taking wrongful advantage of the trust reposed by the beneficiary. There is good reason why this Court in cases like L v Robertson and Collie v Nursing Council has found the breach as well as the existence of fiduciary duty on the part of the provider of health services who abuses that position. If however there is no such abuse there is no fiduciary liability. That is so in English law even in the case of such a well recognised fiduciary as a solicitor: Bristol and West Building Society v Mothew [1998] Chancery 1 at pp 16-24. There Millett J, delivering the leading judgment of the Court of Appeal, distinguished sharply between a solicitor’s duty at common law and in equity to exercise reasonable care and skill in advising a client; and the breach of fiduciary duty, as by acceptance of conflict of interests, that will give rise to such equitable remedies as equitable compensation for breach.
[41] Here there has been no suggestion of any such abuse by Dr B of his fiduciary position. It follows that the claim for breach of fiduciary duty must also fail.
Accident Compensation
[42] The defendants plead s 317(1) of the Injury Prevention, Rehabilitation and Compensation Act 2001 which provides
317 Proceedings for personal injury
(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—
(a)personal injury covered by this Act; or
(b)personal injury covered by the former Acts.
[43] That measure did not come into effect until after both the surgery on 2 June 1999 and the failure of the Filshie clip prior to August 2000. At the time of the surgery the relevant provisions of the Accident Rehabilitation and Compensation Insurance Act 1992 were in force. On 1 July 1999 the comparable provisions of the Accident Insurance Act 1998 came into force. By s 360 of the 2001 Act if the claim is for personal injury suffered before 1 April 2002 and is not lodged before 1 April 2002 a claimant has cover under the 2001 Act if she
· would have had cover under the 2001 Act and
· she would have had cover under the Act in force at the time she suffered the injury, which in relation to the events of 2 June 1999 can only be the Accident Rehabilitation and Compensation Act 1992.
If the subsequent failure of the clip, which may have occurred after 1 July 1999, itself constituted injury the Accident Compensation Act 1998 would apply.
The 1992 Act
[44]The Accident Rehabilitation and Compensation Insurance Act 1992 provided
4 Definition of “personal injury”–
(1) For the purposes of this Act, “personal injury” means … physical injuries to, a person…
…
8 Cover for personal injury occurring in New Zealand–
(1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the 1st day of July 1992 in respect of which there is cover under this Act.
(2)Cover under this Act shall extend to personal injury which–
(a)Is caused by an accident to the person concerned; or
…
(c) Is medical misadventure as defined in section 5 of this Act;…
5 Definition of “medical misadventure”–
(1)For the purposes of this Act,–
“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. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results:
“Medical misadventure” means personal injury resulting from medial error or medical mishap:
“Medical mishap” means an adverse consequence of treatment by a registered health professional, properly given, if–
(a) The likelihood of the adverse consequence of the treatment occurring is rare; and
(b)The adverse consequence of the treatment is severe.
(2)For the purposes of the definition of the term “medical mishap”, the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given.
…
(4) For the purposes of the definition of the term “medical mishap”, the adverse consequences of treatment are severe only if they result in death or–
(a)Hospitalisation as an inpatient for more than 14 days; or
(b)Significant disability lasting for more than 28 days in total;
…
(6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person’s parent, legal guardian, or welfare guardian, as the case may be, is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent.
(7)Medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent.
…
(10) Where the Corporation considers that medical misadventure may be attributable to negligence or an inappropriate action on the part of a registered health professional it shall–
(a) Give the registered health professional a reasonable opportunity to comment on the matter; and
(b) If satisfied that there may have been negligence or inappropriate action–
report the circumstances to the appropriate body with a view to the institution of disciplinary proceedings, and to any other body that may be appropriate.
…
14 Application of Act excludes other rights–
(1) No proceedings for damages arising directly or indirectly out of personal injury covered by this Act or personal injury by accident covered by the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is suffered by any personal shall be brought in any Court in New Zealand independently of this Act, whether by that person or any other person, and whether under any rules of law or any enactment.
…
[45]There is therefore cover under s8 for personal injury
· which is caused by accident; or
· which is “medical misadventure”, being either medical error or medical mishap.
The 1998 and 2001 Acts
[46] It is unnecessary to lengthen this judgment by reproducing the provisions of the 1998 and 2001 acts. Counsel agreed with the Court of Appeal in Harrild v Director of Proceedings [2003] 3 NZLR 289 that there has been no material change.
Submissions
[47] Mr Davies submitted that there has been no “personal injury” and so ss 8 and 14 can have no application. Nor was there an “accident” in terms of the first limb of s 8. As to the second limb – medical misadventure - there was no “medical mishap”, since the failure of the process did not result in hospitalisation for more than 14 days or “significant disability lasting for more than 28 days”. The defence did not argue that pregnancy and its consequences had that effect.
[48] He further submitted that there was “medical error” by reason of “failure to obtain informed consent” and “failure to observe a standard of care and skill reasonably to be expected “ of a health professional. But because there was no “personal injury” and thus no cover s 14 could have no application.
[49] Mr Hodson QC and Mr Lewis argued that there was “personal injury” and that the case fell squarely within the sphere of alleged medical error, so that cover exists and the claim is barred.
Discussion as to ACC
[50]In L v M [1979] 2 NZLR 519 Cooke J (dissenting) at p530 considered that
…it does not seem to me that the pregnancy, however unwanted, or the childbirth can naturally be described as personal injuries.
But in ACC v Auckland Hospital Board [1980] 2 NZLR 748 Speight J held that an unwanted pregnancy following a negligently performed unsuccessful sterilisation operation fell within an extended definition of “personal injury by accident”
introduced by the Accident Compensation Act 1974 which included “Medical [or] surgical misadventure.” He considered that failure resulting from a properly performed operation would not have been covered.
[51] In SGB v WDHB HC WN CP4/01, 15 February 2002 Gendall J declined to strike out as barred by the ACC legislation a claim similar to the present one. He recited a series of District Court decisions on Accident Compensation appeals to the effect that pregnancy is not “personal injury” for which cover exists and distinguishing Speight J’s decision as depending on the definition which deemed to be in law “personal injury by accident” what in fact was nothing of the kind. At para [29] Gendall J observed that since Speight J’s decision the cover of the legislation has been restricted to cases of physical injury and the scope of the cover is also restricted because of the definitions of medical misadventure and of “motor vehicle injury”.
[52] The pre-ACC law entitled to damages a plaintiff who could prove personal injury caused by the defendant’s negligence. What was injury depended on the circumstances and particularly the perspective of the plaintiff. Pregnancy may be the desired consequence of a loving relationship; it may be the result of rape. In the former case there is no legal wrong or result which the law will view as warranting compensation. In the latter case there is.
Personal injury by accident
[53] The two grounds of ACC cover – personal injury by accident and personal injury which is medical misadventure – require separate consideration.
Personal injury
[54] As to the former, “injury” includes “interference with [a person’s] bodily integrity”: Green v Mathieson at p 572.
[55] I have concluded that here “personal injury” was established by proof of failure of the clip and its potential consequence of removing Ms A’s protection from pregnancy. Viewed from her standpoint the prospect of pregnancy was not the joy it is for many couples but a considerable burden, which she had taken care to try to avoid. Aside from the unwanted addition to her family it would cause unwanted physical symptoms of pain to her back. For her the failure of the clip was undoubtedly an injury and a grave one. On any common-sense test it did indeed constitute “interference with her bodily integrity”, just as would the failure of a pacemaker in the case of a cardiac patient or of an artificial hip-joint. To argue that because the fitting of a clip is “abnormal” so its failure is “normal” and so cannot constitute injury would disregard the essential principle that the topic of injury is viewed from the patient’s perspective.
[56] It does not of course follow that Ms A was entitled to accident compensation; that was not argued on her behalf. “Injury” is used in the Act as referring to physical harm; not in the lawyer’s sense of legal wrong which was classically discussed by Story J in Webb v Portland Manufacturing Co (1838) 3 Sumner Rep 189,192 (reproduced by Brooke LJ in Watkins v Home Secretary [2004] 4 All ER 1158, 1167-8 para [32]). At common law none of these events would attract damages, unless there was negligence; in England limited damages can be awarded for medical negligence resulting in what is sometimes clinically known as “wrongful birth”: McFarlane v Tayside Health Board [2000] 2 AC 59 (House of Lords) and include compensation for additional expenses of bringing up a child with significant disability: Parkinson v St James NHS Trust [2002] QB 266 (CA). While the state of the pre-ACC law is not of itself a barrier to ACC entitlement it is a factor in the judgment as to the scope of the statutory cover.
By accident
[57] Although from the standpoint of an offender rape is not an accident, in terms of the victim’s entitlement to Accident Compensation it is: G v Auckland Hospital Board [1976] 1 NZLR 638; Green v Mathieson [1989] 3 NZLR 564, 572. (Likewise pregnancy resulting from rape is patently “personal injury”: it is caused to the person
and entails the legal affront that in terms of legal policy should attract compensation.
[58] The test of “accident” includes “an unlooked-for mishap or an untoward event which is not expected or designed… a mishap causing harm to the person”: Green v Mathieson at p 571.
[59] While I am satisfied that there was personal injury, there was in my view no “accident”, so that the first limb of s 8 does not apply. “Accident”, with its simple derivation from the Latin for “happening”, has historically been confined to the result of events external to the person. The bursting of a blood vessel does not constitute a compensable “accident”. The scheme of the ACC legislation does not extend to failure of implants or surgery to achieve their goals. On the contrary with its concepts of “medical misadventure” (whether resulting from medical error or from medical mishap) Parliament has codified and limited the extent to which ACC cover will be provided in relation to such events.
Medical misadventure
[60] There having been no accident, unless there has been medical misadventure there is no cover and thus no compensation for a properly performed operation that fails. (Nor, or course, would there have been any claim available at common law.)
[61] If there is “failure to obtain informed consent” there is cover. But that means the claim that would have lain at common law is barred.
[62] Such conclusion is consistent with the observation of Keith J in Harrild at p 299 para [39] that
…the coverage of the Act has been more precisely defined and in some respects narrowed (for instance with the introduction of the medical misadventure and mishap limits)…
[63] It follows that had negligence been established the claim would have been barred by s 317.
Comment
[64]In a judgment delivered on 27 January 2005 in another medical claim
Gregg v Scott [2005] 2 WLR 268, 280 (HL) Lord Nicholls observed
45… if the common law is to retain its legitimacy it must remain capable of development. It must recognise the great advances made in medical knowledge and skills. It must recognise also the medical uncertainties which still exist. The law must strive to achieve a result which is fair to both parties in present-day conditions. The common law’s ability to develop in this way is its proudest boast. That the present state of the law on this aspect of medical negligence, far from meeting present-day requirements of fairness, generates continuing instinctive judicial unease…
(See likewise Lord Scarman’s remarks in Sidaway at 883-4.)
[65] His dissenting judgment concerned the topic of damages for loss of chance of recovery resulting from misdiagnosis. A similar observation may be made in the present case. Nowadays the litmus test for any law is the dignity of the individual, recognised by art. 1 of the Universal Declaration of Human Rights and underlying the provision of rights to health consumers by the Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumer Rights SR1996/78 and 2004/116. An important recent discussion in the context of medical law is by Munby J in R (Burke) v General Medical Council [2005] 2 WLR 431, 452-458 paras 59-72. The rights provided by the Code include
Right 5 Right to effective communication
(1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided.
…
Right 7 Right to make an informed choice and give informed consent
(1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except when any enactment, or the common law, or any other provision of this code provides otherwise.
…
(6) Where informed consent to a health care procedure is required it must be in writing if-… (b) there is a significant risk of adverse effects on the consumer.
[66]At common law
…once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of action on which to base a claim for failure to go into risks and implication is negligence, not trespass.
Chatterton v Gerson [1981] QB 432 per Bristow J
[67] As Professor Michael Jones points out in Informed Consent and Other Fairy Stories [1999] Medical Law Review 93, 101-110 that is a very low standard. Further, the onus of proof of breach of duty rests squarely on the plaintiff.
It is a trite observation that the doctor-patient relationship involves a major imbalance of power, some of which stems from social norms – patients expect to be at a disadvantage, because of their lack of knowledge, their lack of training and sometimes because we all want to believe desperately that the doctor is all knowing and all powerful and therefore will definitely make the correct diagnosis and provide a complete cure. Although some of this disparity is inherent in most professional-client relationships those relationships are not generally conducted when a client… is at the disadvantage of being naked, apart from a flimsy robe… Part of the imbalance between doctor and patient is due to the patient’s lack of information and, on one view, it is a function of the law to address the imbalance by providing patients with the ‘right’ to be given that information, or perhaps more accurately imposing a duty on doctors to provide it. There are some within the medical profession who appear to resent the notion that informed consent is part and parcel of ‘patient rights’ – the patient with rights is a lawsuit waiting to happen. On the other hand, a patient with no rights is a citizen who is stripped of his or her individuality and autonomy, as well as her clothes, as soon as she walks into the surgery or the hospital.
…
He observed
Unfortunately, simply giving patients more information than a starting point, does not necessarily improve the quality of patient decision making… Patients are… notoriously bad at remembering what they are told about proposed treatment… providing the information on paper does not necessarily improve matters either. In a study where one group of patients were given an oral explanation of anaesthetic risks and another group were given an oral explanation and a pre-printed consent form which set out the risks, it was found that post-operatively the patients who had received the oral explanation only had retained more information about the anaesthetic risks… On the other hand, there are some studies suggesting that written
information can improve patient understanding. Patients tend to remember more about the potential benefits than the potential risks, which is perhaps not surprising since there is also evidence that doctors tend to minimise the risks and present a positive outlook.
Ibid p129
[68] The problem is evident in cases like the present where two potentially inconsistent messages had to be communicated. One was that the procedure should be seen as irreversible so that a change of mind about the decision to have no more children should not be contemplated; the other that the procedure entailed a small risk of future fertility so that it could not be guaranteed to ensure sterility. That was in the context of inequality of knowledge, understanding and objectivity. For the surgeon it is an everyday procedure of which he or she understands the minutiae and which does (and should) not engage emotion. For a patient without antecedent knowledge the concept of irreversible removal of fertility is a watershed of life, almost inevitably entailing emotion, if only a relief that, assuming success, it will remove not only unwanted pregnancy but the need for anxiety about its risk and, in particular, the need for other birth control measures.
[69] The right to information is now settled, at least in cases such as the present where the surgery is non-urgent and wholly elective. But the dignity and autonomy of the individual are meaningless unless there is a remedy for its breach. Fundamental to that is possession of the necessary evidence.
[70]Professor Jones has suggested as good practice
- where appropriate, discuss with patients the possibility of bringing a relative or friend, or making a tape recording of the consultation
(p132)
We have seen in New Zealand and elsewhere a beneficial change in police interviewing practice since the Beattie report recommending video-recording of police interviews.
[71] In another case of close personal relationships where there is obvious conflict between powerful competing interests (there of mutual affection and personal proprietary interests) Parliament has provided by s 21E of the Property
(Relationships) Act 1976 for regulations prescribing model forms to deal with agreements for contracting out of the operation of that Act. And in the relationship of master and servant, where the servant may be exposed to risks which the master can consider at leisure in the quiet of an office, the law developed a non-delegable duty on the part of the master to devise, lay down and maintain a safe system of work: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57.
[72] Here there was no evidence or case made that it is negligent for a doctor to fail to obtain written consent on a form setting out in plain language the nature of the risks. But it would be a simple as well as obvious precaution for the consent form to refer explicitly to the risks.
[73] Even where the legal onus of proof remains on a plaintiff the Court will in some circumstances pass to a defendant with the means of obtaining evidence an evidentiary burden of doing so: Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. Here the decision as to what records should be maintained lay with Dr B; in her vulnerable position Ms A could not have been expected to keep notes, while “patients are notoriously bad at remembering what they are told”.
[74] The developing recognition that the autonomy and dignity of a patient must be recognised, that the patient in a position of vulnerability is at risk of being unable to recall the advice given, and that the doctor as the professional in a position of ascendancy, point to the desirability that the law should in future impose on the doctor an obligation to establish and maintain a written and signed record.
[75] I offer no comment about cases where the risks are obvious, where decision-making occurs in circumstances of urgency, or where explanation would require complex exposition or attract risk of harm to the patient. There are no such features in cases like this. Here the presence of such document would have brought clearly to Ms A’s mind the nature of the risk, she would have been in no doubt as to her position and might have been spared the distress both of the pregnancy and of this litigation. Equally Dr B might have been spared the experience of this claim.
[76] If in the light of the experience in this and other cases doctors do not obtain written evidence that the patient when consenting to the procedure had been specifically informed as to risks, a future Court might be minded to apply to the practitioner who failed to produce such evidence Lord Mansfield’s statement of principle in Blatch v Archer (1774) 1 Cowp 63, 65 (cited by Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd at p 46)
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
Publication
[77] At the commencement of the hearing an interim order was made for the suppression of the parties’ names. A media application was made to discharge that order and I undertook to deal with the point in giving judgment.
[78] The public interest in the open conduct of litigation concerns not only the opportunity to see and hear witnesses and counsel but importantly to view the discharge by judges of their role as representative of the community. That interest was met in this case not only by the presence of the media who nowadays remain in court when the public are excluded for any reason but the public as well. But evidence of contraceptive practices and sterilisation surgery affects deeply personal interests of the patient which I am satisfied outweigh any public interest in knowing her identity. The order prohibiting publication of her name or particulars that would identify her will continue.
[79] The position of Dr B and the health board raises further considerations. The case against them having failed and the name of the unsuccessful plaintiff having been suppressed there is an argument for suppression based on equal treatment in which the position of the winners should be the stronger.
[80] As against that there is no deeply personal element affecting the conduct of Dr B and the health board, each of whom has succeeded. Both were performing professional responsibilities and public facilities were being used. Despite the
interim orders in SGB v WDHC and in this case there is no settled practice of suppressing names in such circumstances in New Zealand, Australia, Canada or England. There is in my view a public interest that the circumstances of this case should be known in some detail so that possible change in procedures may be considered. In these circumstances the order for suppression of the names of the defendants will lapse after 14 days unless that decision is challenged on appeal.
Result
[81] The claim is dismissed. Order for suppression of plaintiff’s name made permanent. Order for suppression of defendants’ names to be discharged after 14 days unless that decision challenged on appeal.
[82]Costs are reserved. Memoranda to be filed within 14 days.
W D Baragwanath J
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