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Accident Compensation Cases

KING-TURNER v ACCIDENT COMPENSATION CORPORATION (ACAA, 03/07/89)

Judgment Text

B H Blackwood Member
This appeal concerns the issue of whether or not Mrs King-Turner suffered from medical misadventure as a result of a facelift and blepharoplasty (plastic surgery of an eyelid) operation which she underwent on 4 August 1986. 
Background 
On 4 August 1986 Mrs King-Turner underwent a facelift and blepharoplasty operation at Southern Cross Hospital, the operation being carried out by Mr Stewart Sinclair, Plastic and Reconstructive Surgeon. Dissatisfied with the after effects, Mrs King-Turner on 3 July 1987 lodged a claim with the Corporation which sought a report from Mr Sinclair. On 22 July 1987 Mr Sinclair reported as follows: 
“Post operatively she had more swelling on the right side than the left. She was discharged from hospital on the second post operative day. 
It became apparent that she had quite a marked haematoma on the right side and this gradually drained over the next two weeks which was an unpleasant experience. She also had rather more swelling of the right lower eyelid than the left. 
At two weeks she did develop some inflammation on the left but this settled with antibiotics. As a result of the haematoma on the right there was longlasting thickening beneath the skin covering the right side of the jaw and neck. She had numbness on both sides of her face and neck which is expected at that stage. 
At the end of the year the tissues on the right side are still a little thicker than the left. She also has unfortunate lumpiness beneath the skin in one area of the right lower eyelid again because of unfavourable scarring following haematoma formation. 
More distressing though is that both sides of the face have remained very tender and become almost hypersensitive so that she finds it very unpleasant to have her face touched. 
None of these problems are ‘expected’ after a facelift operation but the likelihood of their recurrence varies: 
1.
Haematoma after facelift is a recognised complication. If I had my time again I would return this case to the operating theatre to drain the haematoma but at the time I judged it not sufficiently severe to do so. 
2.
Numbness of the facial and neck skin which has been elevated is a routine consequence of a facelift procedure but this normally recovers to a large extent. Failure of recovery of sensation is unexpected. 
3.
Facial pain persisting as scar tissue softens is unexpected. ”
That report was referred to the Corporation's medical officer at Christchurch, Dr D I Chisholm, who commented: 
“But I find it difficult to reconcile a very tender and hypersensitive face on both sides with numbness. It may be that we are dealing here with paraesthesia - a perversion of sensation consequent upon partial restoration of sensory continuity. Nowhere do I see any disability pursuant to section 78 of the Act. As to section 79, I see you already have an appointment made with Mr Blake, also of 5 Naseby Street. I don't think patient dissatisfaction with the result of a cosmetic operation should be allowed to cloud the issue unless it can objectively be justified. I suggest asking Mr Blake about the nature of any permanent impairment of sensation and whether this could be of such rarity as to constitute medical misadventure, and whether, as to cosmesis, he considers similarly about any appearance of the claimant's features on the right. ”
A report was sought from Mr Graeme Blake, Plastic and Reconstructive Surgeon, and on 18 September 1987 he reported as follows: 
“She underwent a facelift and bilateral blepharoplasty by Mr Sinclair at the Southern Cross Trust Hospital on 4.8.86. The operation was complicated by what she calls a large haematoma on the right side of her face. This did not delay her discharge from hospital after two days and no attempt was made to release the haematoma until it started to liquefy and discharge ten days postoperatively. At this stage the haematoma was manually expressed and this was repeated on several occasions. 
She now states that she feels the operation has been unsuccessful and has altered her whole lifestyle and she feels she should be compensated. 
Her main problem is pain on both sides of the face and the area she describes is that which is elevated during the facelift procedure. She can't stand her face being touched by anyone else but she is able to touch it herself such as when she puts on her makeup. In addition to the pain she complains of altered sensation in the involved area and she also feels that her lower eyelids are more puffy now than they were before her operation. 
She states that she is upset and embarrassed by her operation. She says she can't go out without putting on sunglasses as her eyes just burn up and are very sensitive. She also says the eyes water badly and become blurred. 
She works as a caterer for Air New Zealand. She lives alone having been divorced twice and her family is now grown up. She feels that everything in her life is now cut off and she tends to resist male friends who want to get close. 
No pre or post operative photographs were taken. 
ON EXAMINATION 
She has routine facelift scarring which has settled extremely well except for a small area just beneath the right earlobe which is a little thickened. There is a small lumpy area beneath the skin, laterally placed, on the right lower eyelid which causes a small contour deformity. The lower eyelids are still a little baggy and the upper eyelids are excellent. There was no detectable thickening in the soft tissues and I was able to palpate the cheeks without any apparent discomfort. There was diminished sensation to pin prick over the entire facelift area. Her facial appearance was generally very acceptable for her 60 years. 
OPINION 
This lady is obviously dissatisfied with the results of a facelift and blepharoplasty procedure and claims persisting sensory changes which have ruined her life. 
Unfortunately no pre or post operative photographs were taken but the physical appearance is very satisfactory and there is no motor nerve damage. 
Haematoma formation is a recognised complication of a facelift procedure and it was unfortunate that the haematoma was not evacuated sooner under general anaesthetic as manual evacuation can be uncomfortable and distressing. However there are no residual effects of the haematoma and the symptoms she complains of are on both sides of the face and not localised to the right side. 
Temporary altered sensation is a common problem following a facelift procedure but this usually resolves to a very acceptable level within a few months. The incidence of chronic pain following a facelift procedure is very low and if it is present and persists the possibility of psychological causes should be considered. 
It is a well known fact that the selection of candidates for facelifting procedures is very important and often patients' expectations of the operation are far too high. Without knowing Mrs King-Turner prior to this procedure I cannot state categorically that she would fall into this category but it is a distinct possibility. 
The haematoma doesn't appear to be related to her claimed disability and apart from the failure to evacuate this earlier and more efficiently no medical misadventure appears to have taken place. The distressing effect of manually evacuating the haematoma may have aggravated any possible psychological aspects however. 
It is unfortunate that pre-operative photographs were not taken but the patient states she has a relatively good motograph which I did not see. ”
Dr Chisholm commented on the report that it was a very straightforward and honest appraisal of the situation. His reading of the overall situation was that Mrs King-Turner had unduly ambitious expectations in the way of rejuvenation without any disruption and she had been disappointed and felt disillusioned. He could not recommend that as a result she required financial compensation from the Corporation. On the basis of that information the Corporation wrote to Mrs King-Turner on 5 November 1987 declining to accept that she had suffered from medical misadventure. The letter mentioned that there was no evidence of medical error or of some accidental factor occurring during treatment, and that a haematoma and altered sensation were accepted complications of the treatment carried out and therefore the outcome of her operation was not beyond all reasonable expectations and known risks of such treatment. 
From that decision Mrs King-Turner sought review, the review hearing taking place on 17 February 1988. In a thorough and logical decision the review officer upheld the Corporation's decision. The review officer recorded the evidence given before the hearing by the appellant of continuing symptoms of constant extreme pain over most of her face and the other complaints which have already been recorded in the medical reports. The review officer mentioned that she had discussed the possibility of psychological causes with Mrs King-Turner who was adamant that that could not possibly be the case and indicated that she was not willing to be evaluated by a psychologist. The review officer concluded Mrs King-Turner's facial appearance was satisfactory for her age (then 60 years), and that the evidence indicated that Mrs King-Turner had high expectations of the procedure but because the outcome did not meet the expectations, that did not mean that there had been medical misadventure. It appears that the review officer did not doubt the appellant's complaints of pain and hypersensitivity which was an obvious source of distress for her, but she concluded that there was no evidence to support those claims and to link them to the surgery. 
From the review officer's decision Mrs King-Turner has appealed. 
Hearing of Appeal 
At the appeal hearing Mrs Abrams sought leave to produce a further medical report, and as there was no objection from the Corporation, I granted that leave. On 17 June 1988 Mr E Peter Walker, Plastic and Reconstructive Surgeon of Christchurch, reported to Mrs Abrams. It is a lengthy report but it is appropriate that I cite it in full: 
“Mrs King-Turner underwent a facelift by Mr S Sinclair, Plastic and Reconstructive Surgeon on 4.8.1986. She was in hospital for two nights. The day after the operation Mrs King-Turner noted a swelling on the right side of the face. The swelling was of a considerable size and Mr Sinclair discussed the possibility of taking her back to the operating theatre but decided against that. On leaving the hospital the right side of the face continued to leak blood and Mrs King-Turner was worried because there were towels which were being soaked with blood. She got into the bath one week later and there was a great gush of old blood into the bath. She was seen again by Mr Sinclair who rolled out haematoma from the wound. Mrs King-Turner stated that the haematoma looked like ‘broken liver’. The patient returned for the same procedure on three or four occasions. The patient became black and blue and there was considerable swelling. Sutures were removed in the usual time but after the operation the patient experienced numbness in the right side of the neck, behind the ear, the earlobe, in front of the ear and over the right and left sides of the jaw. She was advised that the sensation would get better in three weeks. At three weeks she was advised that it would get better at six weeks, and so on, three, six and then 12 months later. 
It is now 20 months later and the patient is still troubled by numbness in the areas described above. The patient cannot bear anyone touching her on the sides of the neck. She experiences an unpleasant ‘electric-shock like’ sensation. If her neck is accidently bumped it brings tears to her eyes. 
Mrs King-Turner has five points that she would like to mention. 
1.
She has an unpleasant sensation when touched on the side of the neck. 
On examination - she has a Tinel's sign on the right side midway between the emergence of the cervical plexus from the midpoint posterior of the sterno-cleido-mastoid muscle, and the angle of the mandible. On the left side the Tinel's sign is at the midpoint posterior sterno-cleido-mastoid muscle. The fact that she has pain on stimulating at that point suggest that axons within the nerve were damaged at the time of operation, either by stretching, by crushing or partial division. Now, in the distribution of that cervical plexus she suffers from hyperaesthesia and cannot bear anyone touching the side of the neck, behind the ear, the earlobe or in front of the ear, over the mandible region. 
2.
She complains of some lumpiness beneath the right lateral eyelid. This, she states was an area where there was a haematoma which was not drained at the time that the other haematomas were rolled out. She is now left with a bulge right lateral lower eyelid which is firm to palpate and which is reasonably obvious. She is now more aware of bulges of fat beneath the right and left lower eyelids. These bulges are usually corrected after a lower lid blepharoplasty, depending on the technique used. Perhaps as a result of the stretching and swelling of the tissues, Mrs King-Turner believes that these bulges are worse than before the operation. Over the ensuing months after the operation Mrs King-Turner noted that her lower eyelids would fill with tears and the tears would not drain away as they would before the operation. This took months to improve and she states that she still has tears whenever she goes into the bright sunshine or wind. 
3.
Mrs King-Turner suffers from hyperaesthesia whenever she wears ear rings. The pain is severe and she would rather not wear anything that stimulates the pain. 
In passing Mrs King-Turner noted that the right earlobe was lower and larger than the left. 
4.
Before the operation, Mrs King-Turner had had a little skin cancer removed from the right cheek and she had had a thyroid operation. With the haematoma there had been stretching of the skin and she has noted that the scars on the right cheek and thyroid scars have become wider and more noticeable since the operation. 
5.
With the stretching due to haematoma on the right side of the face and neck she has noted that the deep nasolabial fold and the jowls and the redundant skin down the right side of the neck, although they may have been corrected at the time of the operation, have reverted to their appearance that they were prior to the operation. 
Mrs King-Turner works as a catering assistant and a cashier. She finds that she cannot lift heavy objects as tensing of the muscles of the neck stimulates the nerves and causes pain. Similarly, at home, whenever she exerts herself lifting washing or lawnmowing she suffers similar pain. She does not like anything touching her face because of the hyperaesthesia. For example she can wear blouses with an open neck only. If she wore a polo neck jersey, the rubbing would cause an unpleasant sensation. 
The operation of facelift is a delicate operation. The surgeon constantly having to make decisions about the thickness of the flap that is being raised, determining how far to raise the flaps, being aware of the sensory and motor nerves to the face, looking for small bleeders that are cut during the normal course of the operation; determining the correct tensions to put the flaps under placing the sutures so that the flaps can receive sufficient blood supply, yet always doing a sufficient operation to satisfy the patient undergoing the operation. Fine sensory nerves are cut normally during the course of the operation, but these normally rejoin over a period of 3-18 months. The sensation though not perfect is sufficient for protective sensation. That is the patient knows when the skin is being touched and can determine hot and cold sensations and can determine whether objects are sharp or blunt. In Mrs King-Turner's case the cervical plexus nerves on the right and left side were damaged at the places indicated previously, in such a way that there has been return of sensation in the distribution of the cervical plexus, but this sensation is hyperaesthetic. Whilst hyperaesthesia is often a stage through which a person has to go during the healing of a damaged nerve, I would have expected this sensation to have abated now that 22 months has elapsed since the injury. One could be confident that the nerve if it was going to repair would have repaired itself by about 18 months. One can only assume that the tension, crushing or partial cutting of the nerve has resulted in some scarring which will preclude much further improvement in sensation. 
Damage to the cervical plexus is a known complication of this operation, because this nerve is in an exposed position and is in the plane of dissection. As it is a known complication the surgeon looks out for this nerve and makes every effort to avoid damage to the nerve. Some loss of sensation due to stretching of the nerve during operation may reasonably be expected as a side effect of face lift operation. This loss of sensation would normally resolve itself to a great extent. The loss of sensation and unpleasant sensations suffered by Mrs King-Turner would not normally be expected to be permanent. Permanent damage as serious as that suffered by Mrs King-Turner is not an expected hazard of this type of operation. 
The patient also suffered a haematoma, on the right side of the face. The complication of haematoma is a recognised complication following this sort of surgery as there is a large raw area dissected. The operation is usually undertaken with local anaesthetic with some adrenaline in place so that the tiny vessels are constructed down during the operation so that the surgeon can operate without there being too much blood. As the adrenaline wears off however, it is possible for these tiny vessels to open up again and bleed. Because of this possibility, I personally place a redivac drain into the wound to evacuate any haematoma or plasma that may form after the operation. According to the patient she cannot recall any redivac drains being present or removed after her operation. The fact that no redivac drains were placed however is not an indictment because doing the operation without drains is a recognised way to do this operation. The operation is done without drains by some surgeons in the USA, as the operation is done on an outpatient basis. Although haematoma is a recognised complication of this operation it is an untoward effect in that the outcome of the operation was not that which was intended by the surgeon. ”
Mrs Abrams in her submissions stressed that the question of “lumpiness” was not being pursued and that the issue of “haematoma” could be disregarded. In the course of lengthy and well-constructed submissions Mrs Abrams relied particularly upon the report from Mr Walker, submitting that he was quite specific about what he was basing his conclusions upon, and that those questions were based from tests which he had carried out. She submitted that the current symptoms being exerienced by Mrs King-Turner were real and distressing and were an unexpected outcome from her surgical treatment not being within the range of normally expected consequences of such treatment. 
For the Corporation Mr Reid traversed all the medical evidence and posed the question as to whether the report from Mr Walker, which had not been available to the review officer, was sufficiently definitive in terms of causation to sheet the case home for the appellant. He submitted that a reasonable interpretation of the penultimate paragraph of Mr Walker's report was that the symptoms of which Mrs King-Turner complains are not an unexpected outcome of her surgical treatment. 
Decision 
Personal injury by accident, as defined in section 2 of the Accident Compensation Act 1982, includes medical misadventure. The term “medical misadventure” has been the subject of considerable discussion in Appeal Authority decisions and in judgments from the High Court. The three leading High Court decisions are Accident Compensation Commission v Auckland Hospital Board [1980] 2 NZLR 748Has Cases Citing which are not known to be negative[Green] , MacDonald v Accident Compensation Corporation (1985) 5 NZAR 276Has Cases Citing which are not known to be negative[Green]  and Viggars v Accident Compensation Corporation (1986) 6 NZAR 235Has Cases Citing which are not known to be negative[Green] . An analysis of those three judgments reveals, in my opinion, the following propositions: 
1.
Medical negligence or medical error is medical misadventure. 
2.
A totally unforeseen adverse consequence of medical treatment is medical misadventure. 
3.
An adverse consequence of such treatment which is within the normal range of medical or surgical failure attendant upon such treatment is not medical misadventure. 
4.
An adverse consequence of such treatment which is outside the normal range of medical or surgical failure attendant upon such treatment is medical misadventure. 
There is no suggestion in this case that there has been any medical negligence or medical error. The issue is whether the adverse consequences from which Mrs King-Turner suffers are as a result of the surgical treatment which she underwent on 4 August 1986, and if they are, whether those consequences are within or outside the normal range of medical or surgical failure attendant upon such treatment. 
It is clear from the decision of the review officer, although she does not appear to doubt the evidence of Mrs King-Turner as to the symptoms of which she complains, that the review officer was not entirely convinced that those symptoms related to the surgery. After what appears to have been a detailed and careful examination of Mrs King-Turner, Mr Walker seems clearly to find a causal link between the surgery and the symptoms. I am persuaded because of his report, which was not available to the review officer, that the causal link has been established. 
I turn then to the second issue as to whether those problems are within or outside the normal range of medical or surgical failure attendant upon a facelift operation. It is clear from all the medical reports that altered sensitivity to the face following such surgical treatment is to be expected, but that over a period that sensitivity should disappear. Mr Sinclair commented that failure of recovery of sensation is unexpected and that facial pain persisting as scar tissue softens is unexpected. Mr Blake similarly expressed the view that temporary altered sensation is a common problem following a facelift procedure and he suggested that if chronic pain was continuing the possibility of psychological causes should be considered. Mr Walker has recorded probable reasons for the persisting pain and sensitivity in the crushing or partial cutting of the nerve resulting in some scarring which will preclude much further improvement in sensation. He concludes that permanent damage as serious as that suffered by Mrs King-Turner is not an expected hazard of that type of operation. 
Finding as I have that there is a causal link between the surgical treatment and the persisting symptoms, I have no difficult in concluding on all the medical evidence that such an adverse consequence is outside the normal range of medical or surgical failure attendant upon a facelift operation and accordingly that Mrs King-Turner has suffered from medical misadventure. 
I allow the appeal and direct that the file is to be returned to the Corporation to consider Mrs King-Turner's claims on the basis that she now has cover under the Act. I award costs to the appellant of $500. 

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