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Accident Compensation Cases

Brown v Accident Compensation Corporation (DC, 13/02/07)

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 19 July 2005, whereby it declined the appellant's claim for cover for personal injury by medical misadventure being medical mishap. 
[2]
The appellant had sought cover in respect of “floaters” which he had begun to experience in his eyes following bilateral eye surgery on 6 June 2000. 
[3]
It is the respondent's contention that there is no causative nexus between the eye surgery and the subsequent appearance of the “floaters”
[4]
The relevant background facts are not in dispute and may be stated as follows: 
In May 2000 the appellant, then aged 32 years, presented to Dr Antony Morris, Specialist in Cataract and Refractive Surgery, with a view to him undertaking surgery to remedy his myopia (short-sightedness). 
Dr Morris considered the appellant was a suitable candidate for LASIK surgery (Laser-Assisted in Situ Keratomileusis). 
On 6 June 2000 Dr Morris duly carried out bilateral LASIK surgery. 
That surgery was successful and post-operatively the appellant's vision returned to 6/6 in each eye, whereas before surgery it was 6/60 in the right and less than 6/60 in the left. 
Within three months of that surgery the appellant began experiencing “floaters” in his field of vision, that is strange cobweb-like fragments. 
In the months thereafter the appearance of “floaters” increased and have remained in each eye down to the present time. 
The appellant consulted Dr Morris who advised that in his opinion the “floaters” were coincidental to the surgery, not caused by it. He referred the appellant to Professor McGhee, Professor of Ophthalmology at Auckland Medical School. 
The appellant was also seen by Dr Nick Mantell, Vitreo-Retinal Surgeon. 
Following the lodging of the claim for cover the respondent's Medical Misadventure Unit obtained reports from Dr Morris, Professor McGhee and Dr Mantell and then sought the independent opinion of Dr P C Wellings, Eye Specialist of Wellington. 
It was the advice of Dr Wellings that the vitreous “floaters” were a comparatively common occurrence and had not been caused by the LASIK surgery. 
Consequent upon Dr Wellings' advice the respondent issued its decision to decline cover by letter dated 19 July 2005. 
The appellant sought a review of that decision and for the purposes of that review, reports from Mr Allen, Optometrist, and Dr S Chandra, were introduced on the appellant's behalf. 
By decision dated 4 April 2006 the Reviewer determined that the specialist evidence established that the vitreous “floaters” were not caused by the LASIK surgery and the respondent's primary decision to decline cover was confirmed. 
No further specialist evidence has been introduced for the purposes of this appeal. 
[5]
The primary issue in this appeal is whether there is a causative link between the LASIK surgery and the subsequent appearance of the vitreous “floaters”. The Court has had produced to it a number of specialist opinions in that regard and I now detail the relevant passages of those specialist opinions in chronological order. 
1.
Letter from Dr A Morris to appellant dated 30 April 2003. 
This letter summarised the treatment Dr Morris had provided and it noted that in September 2000 the appellant had identified more “floaters” in his left eye. He then went on to state as follows: 
“I warned you about the possibility of retinal detachments that are common to all myopes and described the symptoms of flashing lights and floaters like a cloud of rain appearing in the front of your vision. 
I have attended many overseas conferences and read many papers on LASIK surgery and have not heard of evidence that floaters are more common after LASIK surgery than before. 
There is a theoretical possibility that this could happen because there is a suction ring placed on the globe of the eye that will indent themselves at the time of surgery. However having done over 3,000 LASIK operations I have not had any other patients who have had significant problems with floaters. I have however had many patients in your age group who do have, and are considerably bothered, by a considerable number of floaters. 
I therefore assume that the floaters you have are due to synerysis of the vitreous with aggregation of the collagen fibrills causing significant visual symptoms. 
I have not been able to detect any retinal pathology but I am not a retinal specialist and it may be that an examination by such a person would be of benefit to you in allaying your concerns. ”
2.
Report from Professor Charles McGhee dated 18 August 2003 to appellant's General Practitioner. 
The appellant had been referred to Professor McGhee by Dr Morris and Professor McGhee examined the appellant for the purposes of his report. His report of his examination was as follows: 
“On examination his vision was 6/5 unaided in the right eye and 6/6 unaided in the left, although he noted a doubling of image and poor quality related to this Snellen acuity. Both corneas appeared to be healthy with well-centred LASIK flaps that had healed into excellent position. There was no significant debris or interface healing, and both corneas were clear. Both anterior chambers were deep and quiet and there was no evidence of any lenticular opacity. ”
Professor McGhee then considered the question of the “floaters” and he gave his opinion as follows: 
“Theoretically, the floaters, which Andrew is aware of, could have been related to the LASIK surgery, since a suction ring is applied to the sclera at the time of the surgery and the associated distortion could, potentially, cause a degree of collapse of the vitreous. However, this is very unusual, particularly in young myopes. It is also important to note, that vitreous condensation and collapse is normal in myopic individuals whether they have surgery or not. Indeed I pointed out to Andrew that I had a history of vitreous detachment in my right eye related to trauma when I was younger. Generally, as long as the peripheral retina is healthy, there would be no indication to intervene with vitreous collapse, and indeed, the majority of patients become less aware of these spots and floaters with time. ”
Professor McGhee recommended further investigation to identify the cause of his problems. 
3.
Report from Professor McGhee dated 13 October 2003 to appellant
This was Professor McGhee's report following the carrying out of further tests on the appellant's eyes on 15 September 2003. The clinical examination carried out enabled Professor McGhee to identify that the appellant did have significant syneresis and condensation in his vitreous, contributing to the floaters, more marked on the right than the left. He recommended that the appellant consult with Dr Nick Mantell, a Vitreo-Retinal Surgeon. 
4.
Report from Dr Nick Mantell dated 23 January 2004
The appellant consulted Dr Mantell on 13 January 2004 and he carried out an examination and certain tests. He then reported as follows: 
“Mr Brown has a severe problem. In brighter light conditions when his pupils are small, he finds the floaters in his vision become intolerable and affect his ability to carry out his daily functions. When the lighting conditions are dimmer and the pupils are dilated, although the floaters are not so severe, he experiences glare from the edge of his corneal Lasik site. Although Mr Brown does not have a posterior vitreous detachment in either eye, it appears most likely that his floaters are secondary to the debris that we can see in his vitreous cavity. It would be possible to perform a vitrectomy in both eyes and I think he would have a 90 to 95 per cent chance of being relieved of his symptoms of floaters. However, a vitrectomy is not without its possible complications and I have discussed these with Mr Brown. His visual acuity is presently 6/5 bilaterally. Floaters are a relatively common problem, although not to the severe extent present in Mr Brown's situation. Vitrectomy is associated with a small risk of causing retinal detachment, severe haemorrhaging, intraocular infection and he is almost certain to develop a cataract at an earlier stage than one would otherwise expect. ”
Dr Mantell said that he would review the appellant in four months' time. 
5.
Report from Dr Mantell dated 19 May 2004
Dr Mantell reviewed the appellant on 18 May 2004. He noted that his visual acuity remained very good, but he further noted that on examination of the vitreous the appellant had a significant degree of vitreous opacity. He then went on to state as follows: 
“I have advised him that I feel 95 per cent sure that his symptoms are due to floaters in the vitreous itself. I suspect that vitreous surgery has a very high likelihood of alleviating these symptoms. Nevertheless there are associated risks and other complications that may occur with surgery. I explained to him that a decision to proceed with surgery really is dependent on the severity of his symptoms weighed against the risk of the surgery itself. Give the severity of his symptoms at present, I think that it would not be unreasonable for him to have vitreous surgery. However this is a decision that only he can make for himself. ”
6.
Letter from Dr Morris dated 27 April 2005 to Medical Misadventure Unit. 
This was Dr Morris' report to the Medical Misadventure Unit following the appellant lodging his claim for cover. After reviewing the nature of his treatment of the appellant, Dr Morris stated as follows: 
“In my opinion Mr Brown has undergone routine LASIK surgery. His pre-operative ORBSCAN shows his corneae entirely suitable for LASIK surgery and his postoperative ORBSCAN show very large well centered ablations in both eyes. 
It has not been my experience to have similar problems with other cases following LASIK surgery. Other patients have mentioned noticing floaters and I note one or two who have reported thinking these may have been more chronic after surgery than before it. It is my practise to always inform patients that if floaters are present before surgery, then it will almost certainly present afterwards. 
I note that Mr Brown reports not having any floaters prior to surgery but which were much worse afterwards. 
I am not aware of any evidence that really substantiates a marked difference in the vitreous degeneration following LASIK surgery. 
In summary Mr Brown had normal LASIK operations and there is no obvious abnormality in his eyes apart from increased evidence of syneresis of the vitreous and if this is a LASIK complication, it would be an extremely rare event. (In my experience about 1 in 3,000 patients). ”
7.
Letter from Dr Nick Mantell dated 15 June 2005 to Medical Misadventure Unit. 
Dr Mantell restated the results of his examinations of the appellant and he stated, inter alia, as follows: 
“Dilated examination demonstrated no posterior vitreous detachments in either eye. There were some vitreous opacities present in the vitreous cavity of both eyes. I also noted a small, long standing subretinal lesion associated with the left macula which I felt was of no consequence. I concluded his floaters were secondary to the vitreous opacities I was clinically able to see. 
Vitreous opacities that are due to condensation of the vitreous gel. They occur more commonly and at a younger age in patients who are myopic. In those patients with floaters due to vitreous opacity, the vast majority notice these less over time. There are very few who are significantly bothered beyond approximately 18 months. 
I routinely review patients with this common symptom of floaters in their vision and was somewhat surprised by the degree of Mr Brown's debility. 
We discussed the possibility that his symptoms were associated with LASIK surgery. Given the temporal relationship of the symptoms it is a possibility. However, I routinely see patients of Mr Brown's age who have vitreous floaters and no history of ocular surgery. 
In summary Mr Brown has been troubled by symptoms of floaters which began following LASIK surgery. The symptoms are due to vitreous condensation within the vitreous cavity and I believe the formation of these vitreous changes are related to his myopia rather than LASIK surgery. In my opinion Mr Brown's symptoms are more severe than I would expect given the degree of vitreous opacity which is clinically apparent. In my experience patients who continue to have severe visual symptoms due to floaters clinically have more obvious vitreous opacities than in Mr Brown's case. ”
8.
Report from Dr P C Wellings, Eye Specialist, dated 9 July 2005 to Medical Misadventure Unit
Dr Wellings was provided with the reports from the various specialists and was asked to provide his opinion. Dr Wellings gave his opinion and assessment as follows: 
“Has this patient suffered a ‘physical injury’ as a result of medical treatment by a registered health professional? I believe the answer to this is no. Vitreous floaters are common, especially in the myopic population and there is no good reason to blame the LASIK procedure on their occurrence in this case, especially when there is no evidence that a posterior vitreous detachment occurred. Furthermore, there is no evidence that such an association with such surgery ever occurs and it is difficult to see, on theoretical grounds, how such floaters could ever be produced by such a procedure. 
It is not denied that Mr Brown suffers symptoms from his vitreous floaters, but all the evidence would suggest that these floaters were longstanding and only became a problem for the patient when his vision was rendered otherwise so excellent as a result of the surgery. It is also to be noted that patient's concern for the symptoms would appear to be out of all proportion to the vitreous floaters observed clinically. ”
9.
Report from Mr Rob Allen, Optomotrist, dated 15 November 2005
Mr Allen is an Optometrist in the practice of Barry & Beale, Optometrists, with whom the appellant had been a client since 1992. Mr Allen set out the various attendances which his practice had had on the appellant over the years and which noted that the first occasion that the appellant complained of “floaters” was when he consulted him in October 2000. Mr Allen confirmed that the appellant had made no complaint of experiencing “floaters” prior to October 2000. 
[6]
In submissions made to the Court, the appellant was at pains to emphasise that he had never experienced the sensation of “floaters” prior to undergoing the LASIK surgery, and that this fact identified the necessary causative connection. He referred to the comments made by Dr Morris and Professor McGhee as to the possibility that the “floaters” had been caused by the LASIK surgery. He further noted that Dr Mantell had given a similar opinion. 
[7]
The appellant also made submissions on the issues of personal injury, rarity and severity but I need not detail those submissions as Counsel for the Respondent has conceded that those matters are not in dispute. 
[8]
Mr Tui for the Respondent submitted that the medical evidence wholly supported the respondent's position, namely that a causative link could not be established between the LASIK surgery and the subsequent appearance of the “floaters”. Counsel submitted that whilst the specialists have referred to a connection being a “possibility”, that did not satisfy the standard of proof that was necessary to substantiate a claim for cover. 
Decision 
[9]
By an application made on 2 July 2003, the appellant sought cover for personal injury caused by medical misadventure, being medical mishap. At the time that claim for cover was lodged the statutory provisions applicable were Sections 32 and 34 of the Act, prior to those statutory provisions being repealed and replaced by new provisions as from 1 July 2005. 
[10]
Broadly speaking, to be able to obtain cover for personal injury caused by medical mishaap a claimant must establish four separate factors, namely — 
(i)
the fact of a personal injury, that is a physical injury; 
(ii)
that the personal injury was caused by the treatment of a health professional; 
(iii)
that the adverse consequence of that treatment was rare; 
(iv)
that the adverse consequence of that treatment was severe. 
[11]
Through Counsel, the respondent has accepted that the injury complained of, namely vitreous “floaters”, was a personal injury within the meaning of the Act. Furthermore, I find that the medical evidence identifies that the condition is severe within the meaning of the Act, and finally I accept that in the light of the evidence of Dr Morris, who is clearly experienced in the particular LASIK surgery concerned, the particular injury would be regarded as being rare. 
[12]
However, the rarity aspect cannot be divorced from the causative requirement, and it would only be the case if the evidence establishes the necessary causative relationship that the rarity factor would be established. 
[13]
This appeal turns on whether the evidence establishes, on the balance of probabilities, that the vitreous floaters from which the appellant suffers, was caused by the LASIK surgery carried out on 6 June 2000. 
[14]
The Court has received opinions from four specialists on this particular subject, namely Dr Morris, Professor McGhee, Dr Mantell, and Dr Wellings. 
[15]
For the sake of completeness I can indicate that I accept the evidence of the appellant, confirmed as it is by his long time optometrists and general practitioner, that the appellant had no experience of “floaters” prior to June 2000. From that it can be said that there is some degree of temporal connection between the LASIK surgery and the onset of experiencing floaters. 
[16]
However, a temporal connection alone is not sufficient to discharge the onus of proof. The jurisprudence in this jurisdiction on that point has been consistent to that effect. There needs to be reasoned medical opinion which can explain and establish a causative link. The decision of this Court in Stewart (Decision 109/03) cited by Counsel for the Respondent, is indicative of the way this Court has addressed the evidentiary value of a temporal connection, and it is to say that by itself it is insufficient. 
[17]
The evidence of Dr Morris is that it is a “theoretical possibility”, but that is as far as he is prepared to go, he stating that the floaters are due to synerysis of the vitreous with aggregation of the collagen fibrills, causing significant visual symptoms. His final word is that it would be an extremely rare event if it were to be a LASIK complication. 
[18]
Professor McGhee similarly opined that it was theoretically possible and he similarly considered that if it had been caused by a distortion of the suction ring, that that could cause a degree of collapse of the vitreous. He then went on to state that this would be very unusual and that vitreous condensation and collapse is normal in myopic individuals, whether they have surgery or not. 
[19]
Dr Mantell was more particular when he noted that the appellant did not have vitreous detachment in either eye and that it was most likely that his “floaters” were secondary to the debris which could be seen in his vitreous cavity. 
[20]
In his report of 15 June 2005 to the Medical Misadventure Unit, Dr Mantell again was only prepared to advise that it was a possibility but in his opinion the vitreous changes were related to the appellant's myopia rather than the LASIK surgery. 
[21]
Finally, Dr Wellings advised that the floaters had not been caused by the surgery, especially as in the case of the appellant where there was no evidence that a posterior vitreous detachment had occurred. He advised that there was no evidence that there was such an association with surgery. I took his opinion to be quite clear that no such causative link could be had, even theoretically. 
[22]
The sum of the specialist evidence is that three specialists have advised that it is theoretically possible for floaters to be caused by LASIK surgery, whilst one said that it was not even theoretically possible. Even if the majority opinion of “theoretically possible” is accepted, I find that the degree of certainty which is indicated by “theoretically possible” falls far short of the standard required to establish a right to cover under the Accident Compensation Legislation, that standard being that it is more probable than not, or as it is generally stated, the particular matter has been established “upon the balance of probabilities”
[23]
The position as I find it to be, therefore, is that the causative link between the LASIK surgery and the onset of vitreous “floaters” is at most only theoretically possible but that state of affairs falls well short of establishing a link to the standard necessary. In the present case, there is no medical explanation which can enhance the temporal connection and from which a causative link could be established. A temporal connection, of itself, cannot bridge that gap. 
[24]
Accordingly, therefore, I find both as a matter of fact and law, that the respondent's decision to decline cover to the appellant was the correct decision. This appeal is therefore dismissed. 

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