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Accident Compensation Cases

Goile v Accident Compensation Corporation (DC, 05/08/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 8 October 2002 whereby it declined to grant cover to the appellant for her claimed personal injury by medical misadventure, being medical error. 
[2]
The substance of the appellant's claim is that she has been prescribed a variety of drugs in the benzodiazepine family of drugs since at least 1978. She has become addicted to those drugs and, on now seeking to withdraw from those drugs, she is suffering the effects of withdrawal. The appellant contends that she was prescribed those drugs over those years without the prescribing GP's obtaining her informed consent. 
[3]
The background facts relevant to the determination of this issue may be stated as follows: 
In April 2001 the appellant, then aged 80 years, lodged a claim for cover with the respondent for medical misadventure for long-term prescription of benzodiazepines without informed consent. The claim was said to be for drug-induced injury and withdrawal symptoms. 
In or about 1978 the appellant began being prescribed chlordiazepoxide for chronic insomnia. Her prescribing GP was Dr Dominick. 
Dr Dominick has long ago ceased practice and was not able to be contacted for information. 
In early 1983 the appellant came under the care of Dr John Kennelly. Dr Kennelly endeavoured to reduce the dose of the tranquillising drugs and he treated her until 1985. 
From 1985 to 1995 the appellant was under the care of Dr Michael Bleackley and he endeavoured to wean her off barbiturates and hypno-sedatives. She continued to require drugs for her anxieties and sleep patterns. 
From 1995 to 2003 the appellant has been under the care of Dr J G McKevitt. Under his care the appellant continued to be treated for chronic insomnia, anxiety and depression with temazepam. 
In March 2001, the appellant commenced a withdrawal process from temazepam and was doing this by using a stepped reduction of Diazepam. 
[4]
The appellant asserts that the injuries she has suffered are shown by the following symptoms: 
“Headache, feeling unwell, fatigue, hypoglycaemia, insomnia, high blood pressure, pain in chest, arm and shoulder, palpitations, tingling or numbness of feet and hands, feeling of electricity all over, nausea, muscle degeneration, incontinence, sleep disturbance, increased anxiety, panic attacks, rashes, tinitus, uncharacteristic behaviour, metallic taste in mouth. ”
[5]
The appellant's current GP, Dr McKevitt provided a report to the respondent's Medical Misadventure Unit on 28 June 2001. His report states as follows: 
“Mrs Goile became my patient in July 1995. At the time she came to me she was already being prescribed Normison and her records indicate that she had been on this regularly since late 1994. 
Further review of her notes reveals that prior to 1994 she had been treated for chronic insomnia with a variety of hypnosedative agents since 1974. These include Librium, Halcion and Imovane. 
Since becoming my patient Mrs Goile has continued to take Normison or Temazepam 10-20mg at night as a hypnotic, essentially continually, until March of this year. At this stage she determined that, following information received from Patients Rights Advocacy Waikato Incorporated, that she wished to withdraw from Temazepam, and has been doing this over the last three months using a stepped reduction of Diazepam. 
I can not comment as to what information was given to Mrs Goile when hynosedatives were initially prescribed, but it is likely that she did not receive a full explanation of the potential risks of long term treatment with Benzodiazepines. 
It is recognised that long term Benzodiazepine use can cause a range of adverse affects including alteration in cognition and the development of tolerance and withdrawal symptoms including symptoms of anxiety, insomnia, depression, depersonalization, muscle pain and headaches. 
I would accept that Mrs Goile has suffered some if not all of these symptoms as a result of her long term use of Benzodiazepines and believe that she is currently experiencing withdrawal symptoms whilst on a Diazepam substitution regime. There have been no associated hospital admissions. 
I anticipate that she will eventually withdraw completely from Benzodiazepines but may continue to experience unpleasant withdrawal symptoms possibly over the next few months. 
I do not recall specifically obtaining consent for prescription of this medication, which as I say she was already receiving prior to becoming my patient. 
I note in the records that in November 1997 that Mrs Goile had been taking three capsules at night instead of two. The records note that I advised risks of increasing treatment of this type and we would have discussed the known problems of dependence and the potential for side effects. 
As to my usual practice in terms of obtaining consent for the prescription of Benzodiazepines, my current practice is to only initiate treatment of Benzodiazepines on a short-term basis. Particularly with hynosedatives I would advise patients that there use for longer than a couple of weeks is to be avoided because of the recognised potential for dependence, abuse and the development of tolerance. ”
[6]
That report, along with reports from Dr Bleackley and Dr Kennelly, were referred to Professor Carl Burgess, Professor of Medicine / Clinical Pharmacology. Professor Burgess commented on the symptoms complained of by the appellant by stating: 
“This patient is at present trying to withdraw from her medication. It should be pointed out that florid withdrawal symptoms do not occur whilst the patient is taking the drugs but as soon as the dosing is decreased some symptoms will arise. It is my opinion that although the symptoms may not be seen as a physical disability by the Accident Compensation Corporation they can be severely disabling and should be accepted as such. ”
[7]
In the report to the Medical Misadventure Unit by Dr Bleackley, he stated that he was not aware of any adverse consequences relating to the medication in the form of benzodiazepines taken by the appellant during the time she was under his care. He did state that the appellant required a considerable amount of time and patience and that she had long-term difficulties with anxiety, stress and sleep problems. It was these conditions which was the reason the appellant was prescribed various drugs in the benzodiazepine family of sedatives. 
[8]
Although the appellant documents a lengthy list of symptoms, some of which have arisen since she began withdrawal, the medical evidence relating to her condition has come from the sources to which I have above referred. In addition to those symptoms there is also the fact that the appellant was addicted to benzodiazepines. 
[9]
The appellant's claim for cover is a claim that she has suffered personal injury by Medical Misadventure being medical error. Such a claim requires the appellant to establish that she has suffered a personal injury as a consequence of medical error. The medical error alleged is the failure by her successive treating General Practitioners to obtain her informed consent before they continued to prescribe potentially addictive hypno sedatives in the benzodiazepine family of drugs. 
[10]
Section 39 (2) (b) of the Accident Insurance Act 1998 allows for cover under the Act for personal injury caused by medical misadventure suffered by the insured. Section 29 of the Act requires “personal injury” to be a physical injury suffered by an insured. 
[11]
It is the case therefore that unless a claimant can establish that he / she has suffered a physical injury there can be no prospect of obtaining cover under the Act as the whole nature and purpose of the Act is to provide cover for physical injuries suffered by persons in various circumstances and this has been the regime in place since the commencement of the Accident Rehabilitation & Compensation Insurance Act 1992. The two prior Accident Compensation statutes were much looser in their terminology and physical injury was not necessarily a prerequisite, certainly not for medical misadventure. Thus decisions made under those Acts and referred to by Mrs de Jonge are not helpful. 
[12]
In the case of this appellant there is no evidence that during the course of her being prescribed the various benzodiazepine drugs that she did in fact suffer any physical injury which could be attributed to the prescription of those drugs. The medical evidence is that those drugs were being prescribed to her for a combination of symptoms that she was displaying particularly anxiety, depression and chronic insomnia. I find as a fact that these symptoms were not caused by the drugs but were the reason she sought and was prescribed them in the first place. 
[13]
The evidence of Dr McKevitt, her current GP, is the only medical evidence relating to her condition which could be said to be consequent upon her withdrawal from long-term benzodiazepine use but none of those conditions, which are merely symptoms of withdrawal, can be regarded as physical injuries within the meaning of the Accident Insurance Act. 
[14]
I note that Professor Burgess, whilst most sympathetic to the appellant's situation, nevertheless accepts that the symptoms the appellant displays are not those of any physical injury or disability. 
[15]
The medical evidence which has been presented to this Court is in line with medical evidence which has been received by this Court in other cases where persons who may have had long-term dependency on benzodiazepines were seeking cover. The Court on those occasions has similarly found that a person in such a situation cannot be said to have suffered a personal injury within the meaning of the Act. In that regard I refer to the decision of His Honour Judge Middleton in Wahitapu (53/97) and the decision of myself in Higgins (54/98). It is to be noted that in both of those cases, the appellants' advocate was Mrs deJonge and one would have expected her to have been aware of what the legal requirements were when bringing this present claim. 
[16]
In this case I choose not to enter into a consideration of whether or not there was any failure to obtain informed consent as such an enquiry is not warranted or necessary in view of the fact that this claim cannot succeed on the medical evidence and establish a primary basis for a claim, namely personal injury. 
[17]
For the foregoing reasons therefore the respondent's decision to decline cover was correct and this appeal is dismissed. 

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