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Accident Compensation Cases

Laing v Accident Compensation Corporation (DC, 27/06/06)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the First Respondent's decision of 23 December 2004 declining the appellant's claim for cover for personal injury caused by medical misadventure. 
The allegation of medical misadventure made by the appellant was that of medical error by her then GP, Dr Sheelagh James, it being contended that Dr James prescribed Prozac for the appellant without obtaining informed consent and that the prescription and taking of that drug by the appellant caused the appellant to experience various symptoms which she alleged were symptoms of injury. 
At the time the claim for cover was made in June 1999 the injuries stated to have been suffered by the appellant were uncoordinated breathing, metabolic disorder, chronic fatigue, central sensitisation, blood pressure problems, postural hypotension, lymphoedema and abdominal weakness. 
The Corporation's Medical Misadventure Unit investigated the appellant's claim and obtained reports from Dr James and also Dr John Turbott, Consultant Psychiatrist. It also saw correspondence between Bernd Struder, Clinical Psychologist, and Dr Turbott in September 1995 at the time that Mr Struder had referred the appellant to Dr Turbott for assessment. The Panel of the Corporation's Medical Misadventure Unit also had reference to the report of the Medical Practitioners' Complaints Assessment Committee which had considered a complaint by the appellant against Dr James under the Medical Practitioners' Act 1995. 
The finding of the Medical Misadventure Panel was that there was no evidence which would establish any validity to the claim which the appellant made against Dr James. Furthermore, it noted that notwithstanding that finding, the symptoms of which the appellant complained pre-existed the prescription of Prozac, and in any event the symptoms complained of did not constitute personal injury within the meaning of the Act. 
It was the respondent's decision based on that advice which the appellant took to review and at review the appellant, through her Advocate, made the same assertions as had been made to the Medical Misadventure Unit. 
In his review decision dated 16 May 2005 the Reviewer, Mr MacKinnon, also ruled that the symptoms alleged to be the injury for which cover was sought did not constitute personal injury, that is physical injury, for Accident Compensation purposes. He also found that the prescription of Prozac had not caused those symptoms but that they had pre-existed the prescribing of that medication. The Reviewer therefore confirmed the respondent's decision to decline cover. 
The appellant lodged an appeal to this Court against that Review Decision, and the first submissions lodged in support of that appeal by Mrs de Jonge again sought to assert entitlement to cover for the symptoms previously described arising from the medical error of Dr James as had been alleged initially to the Medical Misadventure Unit. 
Submissions in reply were received by the Court prior to the hearing from both Counsel for the First Respondent and the Second Respondent relating to the allegations which had been made. 
On the day of the hearing, Mrs de Jonge presented amended written submissions to the Court, again alleging a failure on the part of Dr James to obtain informed consent before prescribing Prozac, but now the claimed injury for which cover was sought was stated as being “mild cog-wheel rigidity of her limbs”. Mrs de Jonge introduced a medical report from Dr William E Wallis, Neurologist, dated 15 January 1996 for that purpose. 
Counsel for the Respondents were clearly taken by surprise by this change of position and whilst, in the wider interests of justice, I allowed Dr Wallis' report to be introduced and for Mrs de Jonge to make her submissions in relation to it, I reserved the right of Counsel for the Respondents to take instructions and file further submissions in reply should they elect to do so. 
The Court has now received submissions from Counsel for both respondents and it has also received a report from Dr Stuart Mossman, Neurologist, commenting on the matter of “mild cog-wheel rigidity”
Accordingly, as this appeal is now structured it is the claim of the appellant that Dr James committed medical error in prescribing her with Prozac without her informed consent regarding same, and that the taking of that Prozac caused the appellant to suffer the personal injury said to be “mild cog-wheel rigidity” of her limbs as it has been identified by Dr Wallis. 
As an appeal to this Court is by way of re-hearing, I now proceed to consider the appellant's claim for cover for personal injury by medical misadventure as it is now structured. 
The relevant background facts may be stated as follows: 
The appellant is a physiotherapist by occupation but at the material time she was not practising. 
At the time the alleged medical error occurred the appellant was aged 61 years. 
In November 1992 the appellant suffered a fall whilst playing golf causing an injury to her neck. She received treatment for this injury but did not seek cover under the Accident Compensation Legislation. 
In August 1995 the appellant was on a physiotherapy course, training in the Feldenkreis Method and during which she suffered a collapse as a result of which she was described as having lost energy and motivation and which was identified as a major depressive attack. 
The appellant initially consulted Bernd Struder, Clinical Psychologist, and it was he who referred her to Dr G J Turbott, Consultant Psychiatrist, for psychiatric assessment and advice. 
The appellant's first meeting with Dr Turbott was on 27 September 1995 and he reported to Mr Struder following that appointment and he also reported to the appellant's GP, Dr James. It was Dr Turbott's initial impression that the appellant may be suffering from a chronic depressive state with somatic and anxiety features. He sought to obtain further particulars of her medical history from Dr James before reporting further. 
Dr Turbott next interviewed the appellant on 3 October 1995 and prescribed the antidepressant, Prozac. 
Dr Turbott saw the appellant again on 11 October 1995 and then again on 18 October, 25 October, 14 and 22 November 1995. 
During the course of his treatment of her Dr Turbott had prescribed Prozac and the various repeat prescriptions had been provided by Dr James. 
At the meeting on 22 November 1995, Dr Turbott advised the appellant to taper off her Prozac and to eventually cease. 
On 12 January 1996 the appellant, on her own initiative, consulted Dr William Wallis, Neurologist, and the appellant advised him of the symptoms she was experiencing including dizziness and a strange sensation in her head, episodes of panic and hyperventilation. 
Dr Wallis reported to the appellant and he advised, inter alia — 
“The neurological examination is normal with the exception of a slightly impassive facial expression and mild cog-wheel rigidity of your limbs which is related to treatment with Prozac. This is of no great concern and does not indicate brain disease. ”
In June 1999 the appellant lodged a claim for cover, that claim referring to an accident on 24 August 1995 —“On Feldenkrais Training Course”
The diagnosis was stated as being chronic fatigue, etc. 
It must be assumed that an accompanying statement from the appellant, which the Court has not seen, must have contained certain allegations sufficient for the respondent to treat the matter as a claim for cover for personal injury by Medical Misadventure being Medical Error, as it was the case that the claim was referred to the respondent's Medical Misadventure Unit for investigation. 
It seems that the Medical Misadventure Panel did not consider the claim until early 2004 as it provided its first report on 24 March 2004 recommending that the appellant's claim be declined in the absence of any response from the appellant which might change that position. 
Further submissions were received from both the appellant and Mrs de Jonge, and at a further meeting of the Medical Misadventure Panel on 30 August 2004, it determined that there was no new information before it which would cause it to change its view. The recommendation that the claim be declined was confirmed. 
Consequent upon that recommendation the respondent issued its decision declining the appellant's claim for cover by decision dated 23 December 2004. 
The appellant sought a review of that decision and a Review Hearing took place on 18 April 2005 at which the appellant gave evidence and was represented by Mrs de Jonge. 
In a decision dated 16 May 2005, the Reviewer dismissed the application, determining firstly that there was no medical error on the part of Dr James, and secondly that no physical injury within the meaning of the Act had been identified as having been suffered. 
As earlier noted the appellant is now contending that the injury for which she seeks cover is that of “mild cog-wheel rigidity” of her limbs. That was a diagnosis made by Dr Wallis on 12 January 1996 when he conducted a neurological examination of the appellant. It is interesting to note that the reason Dr Wallis' letter is somewhat of a surprise is the fact that the appellant specifically requested that he not provide any report for Dr James. 
It is also to be noted that Dr Wallis had carried out a neurological assessment of the appellant in March 1993, and although the Court has not been provided with any report that may have been made by him at that time, he does refer to that earlier assessment in his letter of 15 January 1996, in which he noted that the appellant was still displaying many of the symptoms which had troubled her since he had last seen her. Dr Wallis went on to state: 
“When you saw me in 1993, I thought the problem you had was caused by tension and migraine headaches. At the time, there was no evidence of a psychiatric disorder, although possibly you may have been slight [sic] depressed. I recommended treatment with antidepressant drugs, not for depression, but rather for the headaches. At this stage, I believe that the major problem is a psychiatric disorder and not a neurological one. 
As you will recall, you disagreed with my interpretation of your clinical picture and did not agree that a psychiatric disorder was a major problem. Be that as it may, I can add little else to your management and would suggest the following: 
In my view, you should go back under the care of Dr James and Dr Turbott. 
You should stay on the Prozac. 
I have agreed to do a CT brain scan, at the Auckland Hospital, and will also review whatever notes I can find on your case at that institution. 
If the above tests or review of your notes adds anything new or suggests that my interpretation of your medical problem is incorrect, I would be pleased to see you again. I shall certainly let you know the outcome of all of this, and I expect that you will be calling me after you have had the CT brain scan. It could be that you will need to wait for some months before the scan is done at the public hospital. ”
In his examination of the appellant Dr Wallis stated as follows: 
“The neurological examination is normal with the exception of a slight impassive facial expression and mild cog-wheel rigidity of your limbs which is related to treatment with Prozac. This is of no great concern and does not indicate brain disease. ”
Counsel for the First Respondent sought the opinion of Dr Stuart Mossman, Neurologist, on the question of mild cog-wheel rigidity. Dr Mossman advised as follows: 
“Cogwheel rigidty is a sign elicited by a passive movement of a joint, usually the wrist, by the examiner in which there is a resistance to movement associated with intermittent change in tone such that it has the feeling of cogwheeling. This sign can be brought out more easily in the ipsilateral limb when the contralateral limb is moved up and down. Importantly sometimes cogwheel rigidity can be misinterpreted when the patient is tremulous or has an intermittent tremor of the hands. In this instance, when the wrist, moved passively by the examiner, this can masquerade as an intermittent change in tone or cogwheel rigidity (2). However, Dr Wallis doesn't refer to any tremor and this is therefore an unlikely explanation. However, Prozac can cause tremor. 
A slightly impassive facial expression and cogwheel rigidity are signs of extrapyramidal disease or Parkinsonism that may be seen both with drugs and with a number of diseases. This includes mostly commonly idiopathic Parkinson's Disease and a number of other conditions. Allowing for Dr Wallis's observations in 1996, the absence of any progression, if indeed this has been the case, over a period of ten years, would make an underlying medical illness unlikely. This is because the natural history of Parkinsonism is for invariable progression over time. As above, antipsychotic drugs, typically Haloperidol, Largactil or Chlorpromazine but even the new atypical antipsychotics including Olanzapine and Quetiapine, can produce the extrapyramidal signs referred to as above. 
With respect to Fluoxetine or Prozac this serotonin reuptake inhibitor has been reported to reduce Dopamine synthesis in a variety of brain areas and to exacerbate Parkinsonian symptoms (3,4). 
Although Fluoxetine is reported as being a cause of Parkinsonism (3), clinical experience and a review of the literature would suggest this is rare. A review of extrapyramidal side effects in 1996 by a Medline search found 71 cases of serotonin re-uptake inhibitors including Prozac causing extrapyramidal side effects. Of the 71 cases ten (14%) had features of Parkinsonism. Reference is also made to the fact that more than half the reports of these patinets were compounded by the use of other medications. Nevertheless the point is still made that at times Prozac may be an incriminating drug (5). In these series one patient had a pre-existing Parkinsonism attributable to another drug, Haloperidol. This was discontinued but she developed progressive Parkinsonism with the introduction of Fluoxetine, returning back to baseline within two weeks after Fluoxetine was discontinued. ”
Dr Mossman then went on to give his opinion on whether the condition was one of actual physical injury and he stated as follows: 
“This is a moot point. The change of drug induced Parkinsonism is at a biochemical level. The biochemical change has a physical consequence. If the drug is discontinued the condition will not progress. With the drug being discontinued the changes may not always be permanent. It is difficult to say when a patient might have a medical cause of Parkinsonism versus a drug induced cause of Parkinsonism though clinical experience suggests that in some patients the extrapyramidal effects of varying degree may sometimes persist, for a period. More commonly they remit reasonably quickly. 
With respect to the observations of mild cogwheel rigidity being noted by Dr Wallis, whether this has caused the patient actual physical damage, one would have to ask as to whether this has affected her function, e.g., her ability to do fine motor tasks, putting in ear rings, using utensils, etc. If these activities of daily living are unchanged one could argue that, even though she has/had a physical sign, it may not necessarily have caused physical damage, if it hasn't caused harm or loss of function. ”
The appellant's claim for cover was lodged on 29 June 1999, that is some two days before the repeal of the Accident Rehabilitation & Compensation Insurance Act 1992 by the Accident Insurance Act 1998, which came into force on 1 July 1999. 
By the time a decision came to be given on that application, the Accident Insurance Act 1998 itself had been repealed and replaced by the Injury Prevention, Rehabilitation and Compensation Act 2001, and by which its transitional provision of Section 357 states that where a claim for cover is lodged before 1 July 1999, but not determined, then a claimant will have cover only if they would have had cover under the 1992 Act. In other words, the statutory provisions applicable in this case are those of the 1992 Act. 
Section 8 provides for cover for personal injury caused by medical misadventure as defined in Section 5 of the Act. The appellant is alleging medical error on the part of Dr James and medical error is defined in Section 5 as meaning: 
“The failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results. ”
Section 5(6) states: 
“A failure to obtain informed consent to treatment from the person on whom the treatment is performed … is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent. ”
In the present case the appellant is contending that she suffered a personal injury as a consequence of Dr James' negligent failure to obtain her informed consent to the prescription of Prozac. 
For cover to be granted the appellant is required to satisfy several criteria: Firstly, that she has suffered a personal injury, namely a physical injury. Secondly that that personal injury was caused by treatment administered by Dr James, and thirdly, that that treatment was administered without the appellant's informed consent and that Dr James' failure to obtain that informed consent in the particular circumstances was negligent. 
The diagnosis made by Dr Wallis was made in January 1996. The appellant lodged a claim for cover in June 1999. Although her claim as made at that time did not refer to the injury of “cog-wheel rigidity” as being sought to be covered; it must now be taken to have been sought as from that time by reason of the way this review and appeal has progressed. 
From the explanation of “cog-wheel rigidity” given by Dr Mossman, I find it to be the case that on rare occasions it can cause symptoms described as “drug induced Parkinsonism”. This is a biochemical change which has a physical consequence. In the appellant's case if it were drug induced Parkinsonism then, according to Dr Mossman, it would not be permanent if the drug were discontinued. He advised that symptoms remitted reasonably quickly. 
The Court has been given no evidence of what the appellant's neurological condition was in June 1999, save for the neurological symptoms provided at that time in support of the claim for cover as it was originally structured. None of those symptoms of course refer to “cog-wheel rigidity” or “drug induced Parkinsonism”
The evidence is that the appellant ceased the medication of Prozac, but if it had continued, then it was not as a consequence of prescription from Dr James. 
The finding that I have made means that the appellant was seeking cover for an injury which, on present evidence did not exist at the time that cover was sought. Furthermore, there is no evidence that any treatment was sought or given for the condition, and I therefore conclude that there is “no personal injury” for which cover can be granted arising from the application for same lodged on 29 June 1999. 
Having considered the explanation of Dr Mossman, I find that in any event there is no evidence that any actual physical damage was caused, and in terms of his explanation, there is no evidence of harm caused or loss of function. On the evidence submitted I am not able to find, on the balance of probabilities, that the condition as seen by Dr Wallis did amount to a physical injury within the meaning of Section 4 of the Act. 
In the event that it be established that the condition of mild cog-wheel rigidity did constitute a physical injury, I proceed to consider whether the appellant can establish whether that condition was caused by the medical error of Dr James. As earlier noted, the error alleged is that the appellant was prescribed Prozac without being fully informed of the potential side-effects. It must be noted that the allegation is made against Dr James and is only her actions which are under consideration. 
The evidence is that the appellant was referred to Dr Turbott by Mr Struder, the Psychologist, and that Dr James came into the picture as the appellant's GP, when Dr Turbott provided her with a report of his consultation. 
The evidence makes it clear that it was Dr Turbott who prescribed the Prozac and it was he who continued that prescription for a period of some 6-8 weeks and it was then his advice for her to taper her intake gradually down to zero. 
The finding of the Medical Misadventure Unit was that the prescription of Prozac by Dr James was simply at the direction of Dr Turbott. The Medical Misadventure Panel were firmly of the view that it was for Dr Turbott to give the necessary information when obtaining the patient's consent and that the function of Dr James in the circumstances was simply carrying out the directions of the specialist. 
The actions of Dr Turbott are not in consideration but the Court is aware that evidence given to another forum by Dr Turbott clearly identified that he fully explained the nature of the treatment associated with Prozac and the likely side-effects to the appellant. 
Even if it were to be established, which I find it cannot, that Dr James had a duty to obtain informed consent from the appellant, then I find that there is no evidence to suggest that the “rare” side-effect of “cog-wheel rigidity” would be one which would be considered to be a potential side-effect, and a general practitioner failing to advise of a rare and unusual side-effect where that side-effect is unlikely to be known, cannot constitute an act of negligence by the doctor. 
For completeness, I indicate that the evidence, on the balance of probabilities, is that the symptoms of cog-wheel rigidity were more likely than not to have been induced by the Prozac, it being the opinion of both Dr Wallis and Dr Mossman that it is a potential side-effect, albeit, rare. 
Whilst the appellant can establish the necessary causative link between treatment and diagnosed condition, I find that the two major evidentiary requirements, namely physical injury and medical error, cannot be established, and for this reason the appellant's claim for cover must fail. 
This appeal is dismissed. 

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