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Accident Compensation Cases

Redmond v Accident Compensation Corporation (DC, 27/01/06)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the respondent's decision of 11 February 2003, whereby it declined the appellant's claim for cover for personal injury arising from medical misadventure, being medical error. 
The alleged medical error is that Dr Faulknor, being the appellant's GP at the time, who is alleged to have failed to advise the appellant of the histopathology report on a tumour, being a squamous cell carcinoma (SCC), which Dr Faulknor had excised on 21 May 1999. It is alleged that this failure caused or contributed to the cause of the appearance of a cancerous mass at his left axilla in or about April 2001. 
The background facts relevant to the issue in this appeal may be stated as follows: 
In 1998, whilst living in Australia, the appellant had a lesion removed from his chest with liquid nitrogen by a medical practitioner. 
In May 1999 the appellant, now living in New Zealand, took his young son to see Dr Rex Faulknor at the Ropata Medical Centre in Lower Hutt. 
Whilst at Dr Faulknor's surgery the appellant asked him to examine a lesion which had again appeared on his chest at the site of the earlier lesion. 
Dr Faulknor determined that it was likely to be a squamous cell tumour and thereupon obtained the appellant's consent to excise it. Dr Faulknor excised the tumour under local anaesthetic and the wound was sutured. 
Dr Faulknor referred the specimen from the excised tumour to a laboratory for a histopathology report. 
The histopathology report identified the tumour as a moderately differentiated squamous cell carcinoma. It also stated “excision of the lesion appears complete”
The appellant returned to Dr Faulknor's surgery on 31 May 1999 for removal of the sutures. He did not see Dr Faulknor on this visit, the sutures being removed by his nurse. 
Although it is an issue of controversy, the appellant contends that he was not shown or informed of the histopathology report at that time or at any time subsequent. 
In April 2001 the appellant returned to Australia for work reasons. In July 2001 he developed a lump under his left arm. 
The appellant was referred by his doctor to Western Hospital, Melbourne, where a left axillary mass was excised on 29 August 2001. 
Subsequent to this procedure the appellant was placed on a course of treatment for his cancerous condition. 
In December 2002 further cancer was discovered on the appellant's right side and has required chemotherapy and further excisions. 
In June 2002 the appellant lodged a claim for cover for this cancerous condition, alleging “no follow-up for squamous cell carcinoma removed from chest wall 1998”
The respondent referred the claim to its Medical Misadventure Unit and it sought a report from Dr Faulknor. The respondent then referred the matter for independent opinion to Dr N Holland, a General Practitioner. Dr Holland provided a report on 27 January 2003. 
It was Dr Holland's advice that no action of Dr Faulknor had contributed to the spread of the disease and that the management of the lesion by Dr Faulknor had been quite appropriate. 
Consequent upon Dr Holland's report the respondent issued its decision on 11 February 2003 declining cover. 
As noted, the alleged medical error of Dr Faulknor was the failure to advise the appellant of the result of the histopathology report, and in particular, to advise the appellant that the lesion which was excised was indeed a cancerous tumour. 
The evidence on this point consists of the oral statements of the appellant and his then partner, the doctor's medical notes, and Dr Faulknor's report to the MMU following the lodging of the appellant's claim for cover. 
It was the appellant's evidence, given both at the Review Hearing and by way of an affidavit, that whilst Dr Faulknor advised the appellant that it was a tumour, he did not advise that it was likely to be cancerous and that subsequent to the histopathology report being completed, no advice was given to the appellant, either directly or in writing, that the tumour which was excised was a squamous cell carcinoma. The appellant said that he did not see the doctor when he returned after 10 days to have the stitches removed, nor on a further occasion on 14 June 1999 when the final sutures were removed. 
Dr Faulknor's medical notes state as follows: 
21 May 1999 
sq cell ca chest ant. Treated in Australia with liq n2 has been present last 6/12 removed under la sutured spec to histology ros 10 days then steristrip patient advised re scar. 
31 May 1999 
Sutures removed, and suture line steristripped. Pt could not wait to see Dr, area looks moist, advised to return if does not improve. 
Dx Removal of suture of skin. 
14 June 1999 
final suture removed from wound, healing well. 
Dx Removal of suture of skin. ”
The relevant parts of Dr Faulknor's report to MMU on this aspect are as follows: 
“As can be seen from my medical records, Mr Redmond presented to my surgery on 21 May 1999. He had a lesion on his anterior chest which had been treated with liquid nitrogen in Australia for the previous six months. Based on my examination at the time, I thought this very likely to be a squamous cell tumour. Mr Redmond was informed of this and as further time was available to me at the time of the consultation he agreed to have this lesion removed immediately. 
The excision was done under local anaesthetic, the wound sutured and the specimen sent for histology. I had warned him of the likely scar that would result and instructed the nurse to steristrip the wound further on removal of sutures. 
I informed Mr Redmond at the time that I would contact him if the lesion removed required further excision. This would be based on the histology and may require referral to a plastic surgeon. 
It is my policy to discuss the histology and follow-up management of any lesion at the time of removal of sutures. 
The histology report, please find enclosed, showed a moderately differentiated squamous cell carcinoma, confirming my original diagnosis. No perivascular or neural invasion was seen. Excision of the lesion was complete. 
Mr Redmond returned for removal of his sutures ten days later on 31 May 1999. The histology of the lesion would have been conveyed to Mr Redmond by my nurse. However, as can be seen from the notes, Mr Redmond would not wait to discuss further management with me. 
In summary, this man had a moderately differentiated squamous cell tumour removed from his anterior chest. The histology showed that the lesion was completely removed and that there was no perivascular or neural invasion. He did not wish to wait for my advice regarding future management at the time of the suture removal and subsequently has presented some two years later with what is said to be secondary spread of the tumour to his left axilla. There are also, according to Mr Redmond, lumps in his neck and hand. 
It would be my normal practice to inform Mr Redmond of the possibility of recurrence of tumour at the time of the removal of the sutures and I would have probably checked some six months later to ensure that this had not occurred. I was not able to do this as Mr Redmond did not wait for his postoperative discussion with me. ”
The appellant's then partner, and the mother of his child, also attended the 21 May 1999 and 31 May 1999 appointments, and stated in an affidavit that on the occasion when the lesion was excised, Dr Faulknor made no mention of it being cancerous, he simply stating that the tissue would be checked and that they would be informed if anything was discovered in the results. When they returned for the removal of sutures no mention was made of the report and she stated that they were not asked if they wished to see the doctor. She confirmed that at no time subsequent was any communication had from the Ropata Medical Clinic regarding the report. 
Having considered that evidence against the background of the events, I have come to the view that the appellant was never informed of the histopathology report or of the fact that it was a squamous cell carcinoma that was excised. I accept the evidence of the appellant and his partner that the nurse did not make any mention of the histology report, and it seems to be undisputed that no subsequent written communication was had by Dr Faulknor with the appellant regarding its contents. The medical notes make no reference to the report either being discussed with or provided to the appellant, nor of any advice that may have been given about the need to be vigilant for any further reappearance of similar lesions. 
In those circumstances I find that there was a clear duty on Dr Faulknor to ensure that the appellant was informed of the histopathology report and it seems that this duty would have been heightened by the notation made that the appellant did not wish to wait around for the doctor at the time he came to have the sutures removed. 
Whilst it might be the case of the report falling as it were between two stools, i.e., between doctor and nurse, nevertheless the ultimate duty and obligation is on the doctor to ensure that the contents of the report and any necessary advice that may arise from it, is imparted to the patient and I find that this was not done on this occasion and it is the case that the appellant was kept in the dark about the outcome. 
Although it might be considered somewhat surprising that the appellant did not initiate an enquiry himself, that omission I find does not lessen the nature and scope of the duty of the doctor to ensure that the information is imparted to the patient. 
In those circumstances therefore I find that in terms of Section 33(1) of the Act, there was a failure on the part of Dr Faulknor to observe the standard of care and skill reasonably to be expected of him. 
Having found that an incident of medical error did occur, it is now necessary to determine whether that error, being a medical misadventure, has caused personal injury for which cover can be had in terms of Section 32(1) of the Act. 
When the appellant presented to Dr Michael Chao, Oncologist, in Melbourne in August 2001, Dr Chao noted that the appellant presented with metastatic axillary squamous cell carcinoma “presumably from a skin primary excised from his manubrium in 1998.” Dr Chao advised that the left axillary mass was excised revealing three positive nodes out of 14 removed. He further noted that there was no other evidence of clinical metastatic disease and this was confirmed by a CT scan. 
The fact of the metastatic nature of the squamous cell carcinomas is confirmed by the report of Dr Holland when he noted: 
“Nodal involvement, even after a gap of two years, is an unfortunate but recognised feature of squamous cell carcinoma. There is no action of the doctor that has contributed to this. It is simply the nature of the disease to behave in this way. ”
For the sake of completeness, I note that the meaning of “metastatic” or its noun “metastasis” is, “the transfer of disease from one organ or part to another not directly connected with it. It may be due either to the transfer of pathogenic microbe organisms or to transfer of cells, as in malignant tumours. The capacity to metastasize is a characteristic of all malignant tumours”— source Dorland's Medical Dictionary 27th Edition. 
Against that factual background Mr Darke submitted that the appellant's circumstances were similar to those which were found by the High Court to be the position in the case of Ambros (Auckland High Court CIV 2004 — 404 - 3261) where at paragraphs 100-101 the Court stated: 
“In our view, for the purposes of the Accident Compensation Legislation, the failure of Dr Hart to act in the manner described is to be regarded as causative of Mrs Ambros' death. His failure to act removed the opportunity for Mrs Ambros to be monitored more carefully. Had she been monitored more carefully there was a possibility that death could have been averted. There is no evidence to suggest that death was inevitable. Nor is there any evidence to suggest the intervention of a supervening cause of death. 
Applying the principles of causation set out earlier in this Judgment we conclude that for the purposes of the Accident Compensation Legislation Dr Hart's failures caused death. ”
Ms Gibson for Dr Faulknor submitted that there was no causative link between any act or omission (which she denied existed) on the part of Dr Faulknor and the subsequent spread of cancerous lesions some two years after Dr Faulknor's treatment. Counsel submitted that the lesions had not spread as a consequence of any omission on the doctor's part. 
Ms Fotiades for the respondent submitted that for cover to be granted it would require that the subsequent axilla carcinoma would have to be shown to have been caused by the medical error of Dr Faulknor, but that the medical evidence clearly established that this was not the case. She noted that, as was stated by Dr Holland, and as is referred to in the medical literature which was presented in this appeal, the metastatic nature of SCCs is such that it occurs without any intervention or omission. She further submitted that Dr Faulknor's treatment of the lesion was entirely appropriate and achieved the desired result. 
The medical evidence, I find, makes it clear that the metastatic nature of SCC and the fact that this first raised itself as the primary source back in 1998, indicates that metastasis could have occurred at any time well prior to any involvement by Dr Faulknor. Furthermore, the clear medical evidence is that the SCC did not reappear at the site that Dr Faulknor had excised it from so there can be no question that his treatment was not effective to deal with the SCC on the site that he identified. 
The evidence from Mr Redmond himself is that it was not until April 2001, some two years later, that he began to experience the lump under his left arm. The evidence is that he consulted a medical practitioner in Melbourne at the time and was then referred on to the appropriate specialists for treatment. 
From that series of events, I find that the appellant acted properly and appropriately on identifying the lump and that any failure on the part of Dr Faulkner to give counsel back in 1999, did not cause any delay in the appellant seeking treatment, and there is no evidence that the SCC, as subsequently identified, would have been treated any differently had the appellant been in possession of knowledge that the earlier lesion on his chest was an SCC. 
I find that the principle enunciated in Ambros, which I note is under appeal to the Court of Appeal at the present time, is not relevant to this case, and can be distinguished on the facts. In the Ambros case the patient had a diagnosed heart condition which it was contended ought to have been monitored more carefully, and if it had been death may have been prevented. In the present case, the appellant had a cancerous condition which was excised and, to all intents and purposes, was resolved. That condition did not subsequently return but a new and distinct cancerous condition occurred some two years later in a different location, and quite separate and distinct from the SCC which Dr Faulknor had treated. 
Furthermore, it is not the treatment of Dr Faulknor which is said to be in issue, but rather his omission to advise of the nature of the lesion excised: that failure did not cause the subsequent lesion to occur, that occurred quite independently from causes totally outside the control of any medical practitioner. 
Accordingly, I find that there is no causal nexus between the medical error perpetrated by Dr Faulknor and the subsequent metastatic SCC arising on the appellant's left axilla. 
The Act provides for cover for personal injury caused by medical error, the only personal injury can be that of the SCC under the appellant's left arm and that injury was not caused by any medical error. This is not a case where life has been lost or shortened by any error and it is the case that no cover can be had in the particular circumstances of this appellant's case. 
For the foregoing reasons this appeal is dismissed. 

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