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Accident Compensation Cases

Wilson v Accident Compensation Corporation (ACAA, 30/05/07)

Judgment Text

Member P J Cartwright
This appeal concerns a decision of 2 July 1993 to decline cover to the appellant for a claim lodged under the Accident Compensation Act 1982 for medical misadventure (acute angle glaucoma in the left eye). 
On 10 December 1991 the appellant lodged a claim for cover for injury to her eye as a result of medical treatment. The date of the claimed accident was 15 March 1977. 
It is necessary and appropriate to cover some of the early medical evidence which predated lodging of the claim in medical misadventure in 1991. 
In 1977 the appellant was being treated for hypertension by her general practitioner, Dr Ward. Dr Ward prescribed medication which included Tryptanol (amitryptoline). 
Quite separately, the appellant had some problems with her eyes and had seen her opthalmologist, Dr Moore, from time to time, most recently in February 1977. 
On 15 March 1977 the appellant had an acute episode in her left eye and on 17 March was admitted to Masterton Hospital where a diagnosis of glaucoma of the left eye was made. 
The appellant underwent surgery on 23 December 1977, carried out by Dr Moore. The diagnosis was of an acute closed angle glaucoma of the left eye. 
A discharge report from Masterton Hospital completed by the house surgeon, Dr Chandler, records the diagnosis of glaucoma left eye, notes the medication which the appellant had been on, and records inter alia: 
“She had been on Tryptanol which was stopped as it may have been possible precipitating cause of the glaucoma. ”
The subsequent medical records are incomplete because both Dr Moore and Dr Ward have since died. 
In a letter addressed “To Whom It May Concern” dated 11 July 1983, Dr Moore writes: 
Re: Mrs Margaret Wilson DOB 22.2.25 
108 Cole Street Masterton 
This patient in 1977 developed a closed angle glaucoma secondary to iritis. Surgery was performed with a successful result. Tension readings at that time have been normal and she has normal acuity of 6/5 N5 in both eyes. A small bleb is present over the right eye with a wide iridectomy. Bjerrum screen test showed an increase in blind spot in the right eye. Her fields are otherwise normal. 
Her last readings of applanation tonometry were 14 mms of pressure in both eyes. ”
On 18 June 1985 Dr Moore wrote to Dr Warden, opthalmologist, and after referring to the appellant's earlier history and eye treatment, continued: 
“ … She then developed an interesting closed angle glaucoma which at the time was secondary [to] an inflammatory reaction in the posterior chamber. This did not respond to steroid treatment and I did a wide iridocectomy and a Sheers operation. This after treatment responded and she showed on the 4th of May 1977 an[d] acuity when corrected of 6/5 6/6 N5. There was a small bleb developing and tension readings by applanation tonometry was normal. Gonioscopy showed an open angle. 
She was again seen in 1978 when the angle was narrow in the right eye by gonioscopy but insufficient to warrant a peripheral iridectomy with normal tension readings and normal fields. Provocative test also showed that the angle remained open in the right eye so I delayed surgery. She was seen on the 6th of July 1979 when she had an acuity of 6/4 5/5 N5 and I prescribed new readers. She had a good bleb present in the left eye and tensions were 16 and 14 mms of pressure. Bjerrum screen test showed with a 2mm white target showed a slight enlargement of the blind spot. 
She stated she was on Trasicor 80mgs twice a day and Neonaclex daily. She was last seen in 1981 with normal tension readings with similar refraction and similar fields. …  ”
On 20 December 1988 Dr D Worsley (acting as a locum for Dr P J Haddad, Opthalmologist) explained: 
“Mrs Wilson was seen on 19th December 1988. She requested a Humphrey Visual Field Plot and for a review of her Opthalmic problems. 
Mrs Wilson is a 62 year old lady with a long history of angle closure Glaucoma. She apparently had an acute left angle closure 11 years ago and was subsequently treated with several drainage procedures. The right eye has been treated with G Pilocarpine 2% qid, which is also instilled in the left eye for pressure control. Her general health has been good. 
On examination today her visual acuity is 6/6 right, 6/12 +3 left. The intraocular pressures measured 18 mm mercury right, 28 mm mercury left by application. Right gonioscopy shows a very narrow anterior chamber with no view of the drainage angle. I did not see any evidence of any iridotomy. The pupil is miosed and I did not dilate it in view of potential problems, visualised appeared normal. The left eye has a cystic drainage bleb at 12 o'clock. There is a widely dilated pupil with numerous posterior synechiae. The anterior chamber is shallow. The lens is relatively clear other than localised small areas of cataract. Examination of the left disc showed a marked Glaucoma disc cupping an area of thin nerve fibre layer. 
… My advice to Mrs Wilson is of the following; (1) a right eye laser iridotomy should be performed as the risk of angle closure must be reasonable even on chronic miotic therapy. The left eye has very good central visual field remaining and the intraocular pressures at 28 mm mercury be lowered to at least 18 mm mercury or less. I suggested to her the initial management would be medical although the probability of requiring surgery must be high. ”
On 5 February 1992 Dr Warden wrote to the appellant's then GP, Dr Allan concerning the acute glaucoma in 1977. He wrote, inter alia: 
“ … Mrs Wilson as you know had acute glaucoma in 1977 and this was treated surgically. One of the precipitating causes could have been Tryptanol but I suppose it would be necessary to know what dosage she was on as to whether it was this that precipitated the attack. 
Because of the facts that the glaucoma would have presented anyway regardless of the precipitating cause I do not feel that she can make a claim for Medical Misadventure particularly as the glaucoma was treated at the time. In New Ethicals it mentions that one of the precautions to be taken in angle closure although I have personally never seen any case of acute glaucoma when it has been precipitated by Amitryptoline. 
I think that you could say that there is a possibility that the Amitryptoline did precipitate the acute glaucoma attack but this was able to [be] subsequently treated and any further problems that she had would be because of the glaucoma and not because of the Amitryptoline. Because it is also a well recognised complication the ACC may deem to decline any compensation. ”
Following the application for cover, the medical evidence was reviewed by Dr T P Brown, the Corporation's branch medical officer in Wellington. Despite the length of the medical comments made by Dr Brown the Authority considers it is appropriate to record all of them in full here: 
Was there misadventure in or before March 1977 (a) by GP Dr K Ward prescribing Typtanol and (b) Masterton Hospital staff giving medication making her condition very much worse and not explaining her condition before her operation? 
Diagnosis: left eye closed angle glaucoma. 
Medical documentation on claim file shows: 
Mr G Moore 14.2.77 to GP Dr K Ward, eye pressure 16 (normal up to about 15), on medication for hypertension and on Cafergot for migraine, updated her reading glasses for presbyopia at age 51. 
Masterton Hospital operation records and discharge summary confirm admitted on 17.3.77 with acute closed angle glaucoma of left eye ‘secondary to iritis’, intraocular pressure 43, unresponsive to standard medications, operation 23.3.77 standard left iridectomy with drainage bleb at 12 o'clock position. Consent form is signed by M Wilson and that the operation of iridectomy has been explained etc is clear. Valium used as her premedication can cause loss of memory afterwards. 
Mr G Moore, 11.7.83, to whom it may concern, confirms normal corrected visual acuity both eyes, larger ‘blind spot’ on left (from increased pressure on disc of optic nerve fibres) and pressure 14 in both eyes. Confirms diagnosis of left ‘closed angle glaucoma secondary to iritis’
Mr G Moore 18.6.85 to Mr N Warden confirms glaucoma was ‘secondary (to) an inflammation reaction in the posterior chamber’ and by 4.5.77 she had normal tensions, normal vision with glasses and an open angle was present. On 6.7.79 the pressures were 16 and 14, in 1981 pressures normal. He notes that she is ‘extremely introspective’ (the detail in her many letters support this). 
Mr N J Warden 5.2.92 to GP Dr MA B Allan confirms that ‘the glaucoma would have presented anyway regardless of the precipitating cause’ and that after her specialist treatment in March 77 ‘any further problems that she had would be because of the glaucoma’ disease. 
Mr Warden also says that ‘one of the precipitating causes could have been Tryptanol’ and that this is ‘a well recognised complication’
Dr D Worsley 20.12.88, Tauranga locum for Mr P J Haddad, confirms that she continues on pilocarpine eye drops four times daily but pressures were 18 right, 28 left. 
Claimant describes being prescribed medication for hypertension by Dr K Ward from December 1976 including the antidepressant drug Tyrptanol (Amitryptoline) three tablets at night. (Tablets come in three strengths 10mg 25mg, 50mg - unclear what her dosage was). Says she later stopped all medication. Saw eye specialist Mr Moore on 14.2.77. Thereafter restarted all her medications. Took her Trytanol tablets on evening of 15.3.77 and 16.3.77. Severe eye symptoms started on 15.3.77. The hospital discharge summary says that the Tryptanol medication may have been the possible precipitating cause of the glaucoma. However Mr Warden says the glaucoma would have occurred anyway. Her tendency to chronic glaucoma has continued over the years, long after the effects of Tryptanol ceased and long after corrective initial treatment of her glaucoma (acute). ”
Dr Brown concluded: 
“Seems to me that if her acute attack was ‘possibly’ precipitated by Tryptanol medication, after consultation with eye specialist one month earlier, then this was a well recognised complication of proper medical care. 
Seems to me that her tendency to glaucoma and her chronic ongoing glaucoma problems are medically separate from the acute attack and would have presented anyway. There are no ongoing impairments from the acute attack other than the iris bleb. ”
The Corporation's file was then reviewed by Dr Howard, District Medical Advisor, who wrote in a Memorandum of 19 April 1993 that in his opinion medical misadventure had not been established. In his Memorandum he considered the four criteria recognised by Thorpe J in the High Court decision of Bridgeman v ACC (M. 2052/91) before declining a medical misadventure claim. He considered that there was no medical error, no totally unforeseen adverse consequence, and no adverse consequence of a treatment outside the normal range of failure. Dr Howard concluded: 
Glaucoma may be precipitated by Amitryptoline but there is clear medical evidence that Mrs Wilson would have developed the condition irrespective of the effects of medication. ”
Dr P C Wellings, eye specialist, wrote to Dr R G McGrath on 14 September 1994, inter alia: 
“I would describe her … [Mrs Wilson] … as a patient who has a paranoid obsession with her eye condition and who has an inquisitorial attitude to questioning about her condition, but who is not prepared to accept answers. I have spent many hours over the past eighteen months trying to sort out her ocular problems with her. I must say that her ocular problems are not all that complicated but she makes them out to be so. She has attempted in the past to enter into dialogue and debate by correspondence, over and above the normal consultation time and I have put my foot down firmly with regard to this. However, I see that she has now manipulated you into writing on her behalf. She has read considerably on the subject, but despite this, is usually off-beam with regard to her questioning. The questions which she has asked you to ask me reflect this. However, I will do my best to, at least on this one occasion, answer your questions. 
The left eye has been damaged by glaucoma. She has had previous surgery and a drainage bleb which appears to be functioning, at least partially. Because of this, further surgery would be difficult, but not impossible. However, the pros and cons of further surgery have to be weighed up very carefully and it would be preferable if her pressure could be controlled by medical means. 
2, 3, 4, 5.
I have suggested to her that she would benefit from a laser iridotomy to the right eye in an attempt to prevent an acute angle closure episode in this eye, as occurred in the past with the left eye. I cannot see that the laser treatment to the right eye would have any effect on the left eye and it is extremely unlikely that a cataract will result from laser treatment. However, that does not preclude the development of a cataract in this eye as a result of age-related changes nor does it prevent any other eye condition occurring. 
I have explained all this to her on more than one occasion. I daresay that I, or some other opthalmologist, will have to do so again on many occasions. ”
Relief Sought 
The appellant has explained that the initial drug regime was not prescribed for an eye problem. The appellant explained further drug treatment and surgery was not after an eye infection. The appellant stated consent for surgery was not given. The appellant described “A signature demanded in confusing circumstances on a blank form without explanation and later filled in”. The appellant reiterated that bi-lateral glaucoma was not the basis for her claim. Rather the appellant asserts that her claim comes under numbers 1, 2 and 4 of the Bridgeman decision. The appellant concedes that Tryptanol was not the basis for the claim. She accepted that the eye specialist did not diagnose glaucoma nor susceptibility to glaucoma. 
It is unfortunate due to difficult circumstances that the appellant was unable to be present in person when her review hearing was conducted before a review officer, Mr Ken Howell of Lower Hutt, on 15 March 2001. 
The review officer concluded his decision by stating: 
“The onus is on Mrs Wilson to prove, on the balance of probabilities, her claim for medical misadventure. That proof is largely one of medical evidence. None of the correspondence submitted by Mrs Wilson confirms that the glaucoma developed as a result of medical treatment. I find that the onus has not been fulfilled. ”
It is against the review officer's decision that this appeal has been brought. 
As was submitted by Mr Barnett, the first requirement in establishing a claim for cover for medical misadventure is that the treatment was, on the balance of probabilities, a cause of the claimed injury. Without any reservations the Appeal Authority is obliged to conclude that the medical evidence in this case does not establish the necessary causal association. 
Dr Moore said that the closed angle glaucoma was “secondary to iritis”. He was the treating surgeon. Dr Moore does not implicate Tryptanol as a cause. 
Dr Warden says that “one of the precipitating causes could have been Tryptanol” and that “there is a possibility that Amitryptoline [Tryptanol] did precipitate the acute glaucoma attack”
The opinion that Tryptanol “could have been” a cause or that it was a “possibility”, does not satisfy the requirement, as Mr Barnett has submitted, that proof be established on the balance of probabilities. 
The Authority upholds Mr Barnett's submission that there is no evidence that on the balance of probabilities Tryptanol was a precipitating cause, and for this reason alone the claim for cover for medical misadventure is not established. 
Even if it were the case that Tryptanol was the precipitating cause of the acute angle glaucoma, the Authority agrees with Mr Barnett that the evidence does not establish a medical misadventure in terms of the criteria established by the High Court in Bridgeman
In reviewing the medical opinion, Dr Howard applies the four criteria arising from the High Court decision in Bridgeman and concludes that no medical misadventure is established. Medical negligence or error is not established. A totally unforeseen adverse consequence of medical treatment is not established. Neither is an adverse consequence of treatment outside the normal range of medical, surgical failure attendant upon such treatment established. 
Dr Warden concludes that an acute glaucoma attack is a “well recognised complication” of the treatment than Amitryptoline. By the criteria in Bridgeman this then is not medical misadventure, even if a causal association between the treatment and the injury were established. 
The surgery undergone by the appellant was both needed and successful in treating her acute condition. 
The appeal is dismissed. 

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