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Accident Compensation Cases

Johnston v Accident Compensation Corporation (DC, 24/02/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the appellant can establish that he has suffered personal injury within the meaning of the Act which would enable him to have a claim for cover considered for medical misadventure, being medical error. 
[2]
The appellant lodged a claim for cover in November 1997 relating to the prescription of Benzodiazepines, between February 1978 and September 1990, by various medical practitioners, for a depressive disorder and which he alleged caused his dependence upon those anti-depressants. He alleged those anti-depressants were prescribed for him by those medical practitioners in circumstances which amounted to medical error in that they severally failed to obtain the appellant's informed consent to the continued prescription of same. 
[3]
The appellant's original claim for cover contended that he had suffered “toxic damage by drugs”
[4]
At the time the appellant lodged that claim he provided little information and the claim was initially declined but the appellant was advised that his claim would be reconsidered if he was able to furnish sufficient particulars. 
[5]
In April 2002 the appellant provided the respondent with certain particulars of medical practitioners whom he alleged had treated him at various times and whom he alleged contributed to the personal injury he claimed to have suffered. 
[6]
The appellant's claim was considered by the Respondent's Medical Misadventure Unit, and it provided a report to the Respondent which culminated in the respondent's decision of 17 January 2003 declining the appellant's claim on the basis that the appellant could not establish that he had suffered any personal injury for which cover could be granted. 
[7]
It seems that the respondent's primary decision concentrated principally on the issue of personal injury, although it did note that it was the advice of the Medical Misadventure Unit that there was no evidence of any inappropriate prescribing of Benzodiazepines to the appellant. 
[8]
The appellant sought a review of that decision and a Review Hearing took place on 10 April 2003. It is the case that the Review Hearing concentrated on the question of personal injury and the Reviewer did not go on and consider any question of medical error. In his decision dated 28 April 2003, the Reviewer found that the appellant's claim failed as he could not establish that he had suffered any personal injury, being physical injury, which was required by the Act. 
[9]
Following the lodging of an appeal to this Court against that decision, a Directions Hearing was convened before His Honour Judge Cadenhead, for directions as to what could be the scope and extent of the appeal in this Court. 
[10]
In a Directions Order delivered by His Honour Judge Cadenhead, dated 6 October 2005, His Honour noted, inter alia, as follows: 
“The Reviewer in this case dismissed the application for review on the basis that the appellant had suffered no physical injury. No findings were made on the issues of informed consent or medical error. It is noted that Dr McMillan and Dr Ogg do not wish to be represented. Dr Blaiklock is to be advised of the issue. In the interests of time and expense, I determine that the appeal could proceed on the basis of personal injury only. If that finding was against the respondent then the case would have to be remitted to a review for a further hearing on appeal on the other outstanding issues. ”
[11]
It is pursuant to that direction of His Honour that the appeal came before me on 1 February 2006 for consideration of the issue of whether or not the appellant could establish that he had suffered a personal injury as a result of the prescribing of Benzodiazepines to him over the period in question. 
[12]
The relevant background is that in the 1970's the appellant was principally employed as a musician in a band, and it was whilst he was engaged in this work that he began to experience signs of depression and anxiety and he first consulted a medical practitioner for same in or about 1978 and for which he was prescribed anti-depressants, principally Lorazepam. 
[13]
The appellant appears to have been somewhat transient in the ensuing years and consulted a number of medical practitioners at various times and received prescriptions for anti-depressants, mainly Ativan or Lorazepam, from those doctors. The prescriptions for same becoming more frequent when he began to have matrimonial conflicts in the mid-1980's. 
[14]
The appellant was also referred to Dr G J Ogg, Psychiatrist, whom he first consulted in 1986 during the time that he and his wife were in considerable marital conflict. 
[15]
The appellant appears to have successfully weaned himself off the tranquillisers during the time of a visit to a relative in the United States in 1992 and his assertion is that he has been drug-free since that time. 
[16]
The medical evidence confirms that the appellant did acquire a dependency on Lorazapam and Ativan and statements to that effect have been produced from various medical practitioners, in particular Dr Albert Lee, a General Practitioner, Dr R J MacAuley, a Cardiologist and Consultant Physician, and Dr G G Ogg, Psychiatrist. 
[17]
There is also evidence that he sought medical assistance regarding withdrawal from his dependency, and as I have earlier noted, that process seems to have been completed during the course of his visit to the United States in 1992. 
[18]
The appellant's current GP is Dr Chris Gross of Papatoetoe, and in a brief letter to the Medical Misadventure Unit dated 30 April 2002, Dr Gross stated as follows: 
“Mr Michael Johnston was prescribed Benzodiazepam for about 10 years from the 1980s. He was addicted to them & managed to break his addiction by undergoing treatment in the States. As a result of his time on the benzodiazepam medication he feels that he was changed & has since been suffering with gross mood swings, insomnia, poor memory, burning eyes, adaptation problems, hard to look after himself, now socially impaired etc. ”
[19]
Another medical opinion has been given by another General Practitioner, Dr Nicholas Cooper, who stated, inter alia, as follows: 
“I have seen Mr Johnston since 1997. He has chronic depression anxiety, poor concentration skills and insomnia. 
These problems have led to a profound inability to cope with everyday life. 
He is unemployed, and unemployable. 
He traces the onset of these problems to his prescription of Ativan in the early 1980's. He developed an addiction to this medication. 
It was not until the early 1990's that with professional help he was able to withdraw from Ativan. 
Prior to this if he tried to stop the medicine within hours he developed an acute anxiety state. 
Since stopping he has been left with depression, insomnia, a sense of foreboding, poor concentration skills, and constant anxiety. 
It is my opinion that these ongoing problems have been caused by the Ativan. 
He has suffered medical misadventure/error. ”
[20]
Dr Ogg saw the appellant on a number of occasions from December 1986 onwards and he diagnosed the appellant as suffering from clinical depression and gross anxiety. On the last occasion that Dr Ogg saw the appellant, on 20 December 1993, the appellant advised Dr Ogg that he had weaned himself off Ativan and had had no drugs for two years. Dr Ogg advised: 
“I found no evidence of any mental disorder, in particular no schizophrenia, or any type of paranoid disorder and no clinical evidence of brain damage. ”
[21]
The principal medical evidence upon which the appellant relies is a report from Dr Julia Aranui-Fayed, Consultant Psychiatrist, who provided a report to the appellant's advocate dated 15 August 2005. Dr Aranui-Fayed describes a cluster of symptoms which the appellant told her he was suffering from and which she identified as follows: 
“(i)
Headaches; 
(ii)
Loss of balance; 
(iii)
Feeling of dizziness; 
(iv)
Twitching in limbs and muscles; 
(v)
Poor concentration; 
(vi)
Memory problems; 
(vii)
Difficulty with sleep; 
(viii)
Blurred division; 
(ix)
Tinnitus; 
(x)
Chest pains and indigestion; 
(xi)
Sore knees and shaky hands; 
(xii)
Tight band around chest; 
(xiii)
Heart palpitations; 
(xiv)
Insomnia and nightmares; 
(xv)
Severe mood wings. ”
[22]
Dr Aranui-Fayed stated that the appellant had been left with a chronic and mostly untreated depressive disorder. She also identified that he had chronic post-Benzodiazepine withdrawal syndrome, which she advised was still an incapacitating condition for him. In response to the question, “Has the appellant suffered a personal physical injury?” Dr Aranui-Fayed stated as follows: 
“His life, physical and social and emotional health have been injured by the Induction of and Maintenance of Dependence on Ativan (Lorazepam), which in turn has led to his having a Chronic Post Benzodiazepine Withdrawal Syndrome in addition to an untreated chronic depressive disorder. 
This syndrome is due to brain damage induced by the Ativan, at the cellular level, and in the Benzodiazepine receptors. ”
[23]
Dr Aranui-Fayed went on to state: 
“In my opinion there is a direct causal link between the medical treatment with Ativan, and the physical injury suffered by Michael Johnston. ”
[24]
In her submissions to the Court, Ms De Jonge relied on the medical reports of Dr Gross, Dr Cooper and Dr Aranui-Fayed as supporting her contention that the appellant has suffered a physical injury which can give rise to cover. 
[25]
Ms Epati for the Respondent referred to previous decisions of this Court, in particular Goile, Decision 108/03, where the Court ruled that symptoms following withdrawal are not physical injuries within the meaning of the Act. She further submitted that the evidence of Dr Aranui-Fayed is that of a Consultant Psychiatrist and it is not within her field of expertise to identify whether or not the appellant has suffered physical brain damage. She submitted that her evidence to that effect was simply speculation. Finally, she referred to the evidence of Dr Ogg, who made specific reference to the fact that in 1993, just after the appellant had completed his withdrawal, there was no evidence of a mental disorder or clinical evidence of brain damage. 
Decision 
[26]
This appeal requires consideration as to whether the evidence establishes that the appellant has suffered personal injury within the meaning of the Act. The Act in question is in fact the Accident Rehabilitation and Compensation Insurance Act 1992, which was the Act that was in force when the appellant first lodged his claim for cover. 
[27]
By virtue of Section 357 of the Injury Prevention, Rehabilitation and Compensation Act 2001, a transitional provision, it states that a claimant has cover under that Act only if the claimant would have had cover under the Accident Rehabilitation and Compensation Insurance Act 1992. I make this observation only for the sake of completeness as for all purposes we are here concerned with the definition of ‘personal injury’ under Section 4 of the 1992 Act is the same as that in Section 26 under the 2001 Act. The definition of ‘personal injury’ is that it means: 
“The death of or physical injuries to a person and any mental injuries suffered by that person which is an outcome of those physical injuries. ”
[28]
This Court has stated on a number of occasions that the definition requires evidence of actual physical injury or harm, that is, bodily harm. 
[29]
In the present case the appellant is seeking cover for his medical condition post-withdrawal from Benzodiazepines, that is, the medical condition which he presented to Dr Aranui-Fayed in 2005, when she interviewed and examined him. 
[30]
Firstly, it must be remembered that Dr Aranui-Fayed is a Psychiatrist, not a General Medical Practitioner, although I note that she has a general medical degree. In her report, she has identified that the appellant suffers from a chronic depressive disorder, and she has identified that condition by reference to the criteria for same contained in DSM IV. That condition is not a physical injury and it must be put to one side. The only instance of physical injury which Dr Aranui-Fayed states is brain damage induced by Ativan. 
[31]
No clinical diagnosis has been provided as to how Dr Aranui-Fayed has determined that the appellant is suffering from brain damage as opposed to a chronic depressive disorder, and I find that this particular area of physical medicine is outside her area of expertise. 
[32]
I note that in contrast to her evidence Dr Ogg, back in 1993, advised that the appellant showed no clinical signs of brain damage. Dr Ogg's observation and diagnosis was made closer to the time when the alleged causative events took place and I find that his evidence is to be considered more compelling for that reason. There has been a significant lapse of time since then with the likelihood of intervening factors or events. 
[33]
The appellant suffered from a depressive disorder and continued to suffer from it throughout the late 1970's and through the 1980's. His disorder is documented and it was for this reason that he was prescribed anti-depressants from a number of medical practitioners who all identified the same problem and sought to treat it in similar fashion. 
[34]
The appellant has successfully weaned himself off those anti-depressants, but it is the case that the medical condition which caused him to take them as a treatment clearly still pertains in the light of Dr Aranui-Fayed's assessment of his mental condition, and it may be that with the passage of time the appellant's condition has got worse. Suffice it to say that Dr Aranui-Fayed did not see the appellant until 2005, and save for her having as a starting point that at a particular period of time he was dependent on Benzodiazepines, she can have no first-hand knowledge of the appellant's condition or his symptoms during the period when the alleged medical error took place. 
[35]
I find that it is not open to her to apply ex-post facto reasoning and come to a somewhat glib statement that there is a direct causal link between the medical treatment with Ativan and physical injury, which particular injury could only be the alleged brain injury, which, as I have said, I find has not been established. I therefore reject the evidence of Dr Aranui-Fayed both on the issue of injury and causation. 
[36]
The factual position as I find it is that the appellant did suffer from some form of addiction to Benzodiazepines from which he successfully weaned himself, but which has resulted in a return, possibly even in more strength than before, of the chronic depressive condition which was the reason for his treatment in the first place. That condition is not compensable and I find that there has been no physical injury established which could be the subject of cover under the Act, were indeed the appellant be able to identify that medical error had occurred. 
[37]
For the foregoing reasons therefore this appeal is dismissed. 

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