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Accident Compensation Cases

McCarthy v Accident Compensation Corporation (DC, 16/03/15)

Judgment Text

Judge Nicola Mathers
This is an appeal against a decision by a Reviewer of 21 September 2010 supporting the declinature by ACC of a treatment injury claim of 8 December 2007. 
This matter came before me by way of an appeal from a Review Hearing. I gave my decision on 17 November 2014. However, I realised that I had overlooked the fact that I had given the appellant time to consider clinical notes, and time for her to provide further submissions if she so wished. I recorded this in a Minute of 18 November 2014 in which I recalled my decision. 
In a telephone conference Ms McCarthy indicated that she did wish to file further submissions. I have received those along with further submissions from ACC, and now provide my decision. 
Unfortunately Toni-Ray, the appellant, who was born on 20 August 2003, suffers from some serious congenital abnormalities including a single functioning kidney. She has had various specialist treatments since then as recorded by the Reviewer. 
On 13 April 2004 Toni-Ray was acutely admitted to KIDZ First, and it is accepted by ACC that she was mis-prescribed Gentamicin, in that she was given 145 milligrams rather than the proper dose of 14.6 milligrams. 
Toni-Ray's mother considers that her daughter has or may have suffered further kidney damage as a result of the overdose and says she does not have the resources, as a single mother, to engage an independent expert report. 
However, there is a report from Dr Wong, an acknowledged kidney specialist, on behalf of ACC, confirming that there is no convincing evidence of any kidney damage as a result of the overdose of Gentamicin. 
Ms McCarthy subsequently lodged a late application for review on behalf of her daughter, which was accepted. The Review Hearing was adjourned part heard to accommodate Ms McCarthy's wish to obtain an independent report. After a ten month adjournment and without any further medical evidence from Ms McCarthy, the Reviewer concluded her decision confirming the ACC decision that there was no sufficient evidence to support a treatment injury claim. 
Ms McCarthy has filed further submissions and refers me to ACC Case Study August 2013 — Issue 58 Event: Adverse Drug Reaction, and provides the website for that case study. 
In those submissions Ms McCarthy refers to ACC Case Study August 2013 — Issue 58 Event: Adverse Drug Reaction, and provides the website for that case study. In that case study a patient was administered Gentamicin and following his discharge from hospital he had difficulty with his vision and balance. The study reports the Gentamicin level as being within therapeutic levels, however a claim to ACC was lodged for treatment injury on the basis that his bobbing oscillopsia was a characteristic feature of Gentamicin ototoxicity. ACC accepted cover for vestibulotoxicity. 
Ms McCarthy has also referred to a UK article from a firm of UK solicitors who specialise in medical misadventure. The article notes: 
“ … It must not be given to any patient who is known to have underlying health conditions that contradict the use of Gentamicin, this includes patients with kidney problems. ”
Ms McCarthy also refers to the possibility that her daughter's eyesight may have been affected by the overdose of Gentamicin, and also recent examinations have diagnosed a leaky heart valve and swollen aorta. I note that at three months of age she was diagnosed with a hole in the heart, and she had corrective surgery. 
Ms McLauchlan, for ACC, submits that there is no medical evidence that the administration of the incorrect dose of Gentamicin caused any damage to Toni-Rae McCarthy's kidney, eyes or heart. 
I have considered carefully the reasoning and authorities cited by the Reviewer and considered all the appellant's submissions including her further submissions and have taken those into account, but in my view there is no evidence to support her contention that the administration of the incorrect dose of Gentamicin caused damage to Toni-Rae's kidney. I can see no proper basis for any criticism of Dr Wong's report, or of the reasoning of the Reviewer. 
What does appear to be clear is that the initial claim and the Review Hearing concentrated on damage to Toni-Rae's kidney. It does not appear that the question of whether there has been any investigation of a treatment injury claim for either the right eye or the leaky heart valve and swollen aorta has been lodged/pursued. It may be open to Ms McCarthy to consider any appropriate application in respect of those matters which could be fully investigated depending of course on any time limits or jurisdictional issues that may or not be in issue. 
This appeal must be and is dismissed. 

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