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Accident Compensation Cases

Atkinson v Accident Compensation Corporation (HC, 05/10/00)

Judgment Text

Ellis J
The appeal 
An appeal pursuant to s 97 of the Accident Rehabilitation and Compensation Insurance Act 1992 against a decision made by the District Court. 
Leave was granted on 19 January 2000 and can be on a point of law only. The appellant claims compensation as a result of medical misadventure. The point of law involved is whether there need be a causal link between the medical misadventure and the injury and if so what if any is the burden of proof that rests on the applicant. 
The facts 
After a premature birth Reid underwent an operation at four weeks of age. The essential features were stated by the District Court Judge in this way: 
“Thereafter the events which occurred are encapsulated in the first record of the respondent's Medical Misadventure Advisory Committee as being: 
‘Reid underwent surgery at Wanganui Hospital on 29/4/95 for a suspected hypertrophic pylorostenosis, which was not confirmed by ultrasound or contrast studies pre-operatively. The surgeon felt that an exploratory laparotomy was needed. 
Reid was anaesthetised by Dr Vroon. At the pre-op assessment, Dr Vroon noted that Reid had a mild metabolic alkalosis, but was otherwise well. A nasogastric tube had been passed to aspirate any remaining stomach contents, but no aspirate was obtained. 
In theatre, Reid was induced with Halothane in oxygen. When intubation was attempted, copious amounts of white liquid was regurgitated into the pharynx, which was cleared with suction apparatus. Reid was successfully intubated and manually ventilated. Soon after, the Sp02 was noted to decrease and higher inflation pressures were required to ventilate Reid. On auscultation of the chest, there were scattered ronchi and wheezes. 
It was decided to summon the Wellington Neonatal Retrieval team, as it was not possible to accommodate Reid in the Wanganui Hosp neonatal unit. Reid was kept anaesthetised after the surgery, pending the arrival of the Wellington team. 
Reid is apparently not meeting milestones, and Mr and Mrs Atkinson are alleging error on the part of Dr Vroon, as they feel that the aspiration has led to ischaemic brain damage. ’”
The Judge had before him several opinions as to whether or not the procedures caused the brain damage. The Corporation's Medical Misadventure Committee, which included a specialist anaesthetist, was of the view there was no evidence to establish Reid's current problems were causally related to the anaesthetic. The appellant's paediatrician, Dr Arthur, had provided a written report which included the following paragraphs: 
There is no doubt that Reid suffered an untoward and potentially damaging event during induction of anaesthesia, due largely to inadequate pre-operative aspiration from the stomach of the large amount of barium solution he had been given - as was also evidenced by the post-operative X-rays mentioned earlier. The lowest oxygen saturation recorded was 87%, apparently not of long duration, which does not suggest profound or sustained cerebral hypoxia. I did not find any comment re his blood pressure in the operative notes or Dr Vroon's report of 11/02/97. 
On the evidence available, I do not believe one can confidently attribute all of Reid's problem to the anaesthetic incident. Equally, I do not think one can confidently exclude an adverse effect on his brain due to the hypoxia during anaesthetic induction. The incident occurred when he was only four weeks of age, an insufficient time to establish whether or not his development was normal initially and then became slower after the anaesthesia and surgery. 
Reid does show evidence of developmental delay in my opinion 
A medical error was made, not by the Anaesthetist, but in the in inedequacy (sic) of the pre-operative preparation in failing to aspirate the large quantity of barium solution from his stomach which lead to the inhalation of barium-containing fluid into his lungs during the induction of anaesthasia (sic). 
It cannot be denied that the hypoxia following the aspiration of stomach contents into his lungs may have contributed to his subsequent developmental delay (although it may not be the sole factor), and if this is accepted then it follows that he has suffered medical misadventure, i e personal injury resulting from ‘medical error’. ”
The Committee's findings were: 
“As already noted, Dr Arthur had earlier said in his report that as the lowest oxygen saturation recorded was 87%, apparently not of long duration, there is no suggestion of profound or sustained cerebral hypoxia. The Capital Coast Health Paediatric Development assessment notes at page 6 that the regurgitation and subsequent aspiration of barium at anaesthetic induction, following inadequate aspiration pre-operatively, ‘was not recorded to have been associated with profound or prolonged hypoxia (lowest 02 saturation recorded 85)’. Whilst it concludes that such event cannot be definitely excluded as a contributing factor to Reid's difficulties, it notes that genetic factors in the early intra-uterine environment are recognised to be the most significant in the probable aetiology of developmental abnormalities. ”
Dr Wilson, who was the anaesthetist on the Committee, gave evidence in the District Court and said: 
“Commenting on the hypoxia, I spoke to some of my colleagues who have been specialist paediatric cardiac anaesthetists, and they said in fact the saturation levels recorded here are reasonably normal for (inaudible) heart disease children pre-surgery. The … oxygen carriage in the blood has quite a margin of safety. These saturation's, although aren't normal in an anaesthetic, aren't that uncommon. We've only been measuring saturations for the last 10 years and practice has changed during that time. But … there's no sign … there's a comment there was no bradacardia, that's a slowed heart rate, during the procedure, which is usually a sign that the body has been affected by a low oxygen rate and that is another sign that we use to see if it's been low. And the Ph … if you accept that Ph has been normal, doesn't show an (inaudible) afterwards. They're very indirect and they're talking about the circulation … not the circulation to the brain, but certainly a saturation of 87, 85% is reasonably normal. If you or I were on a plane or standing on the top of Mount Cook, we would probably have a saturation at 90% or below. You know, it's the altitude effect. There was … it … it's not so much the circulation of less than properly saturated blood that can cause damage, it's the loss of circulation that really does cause a rapid damage to the brain, and I think in this case the circulation continued unimpaired during the whole time of the anaesthetic as far as I can tell, and there's no comments to the contrary from anyone. ”
The Judge's Decision 
After extensive treatment of the facts (including the above) and counsel's arguments he reached these conclusions: 
“I have already referred to the decision in Brider from which it is clear that the High Court has accepted that there is no great mystery in interchanging the words ‘caused by’, ‘resulting from’ and ‘consequence of’ for the same meaning within the context of this legislation. They are merely ‘linking’ terms which can be used interchangeably. 
I consider therefore that the issue for the Court to decide is whether or not the fact that it was accepted that there had been ‘sub-optimal care’ and ‘hypoxia during anaesthetist induction’ caused brain damage to this appellant. The only possible support for this proposition is Dr Arthur's suggestion that what occurred during the procedure ‘may have contributed to subsequent developmental delay’. The Paediatric team considered the appellant's problems to be of ‘uncertain aetiology’ and Dr Wilson was not able to state one way or the other whether the procedures had caused minor cerebral damage. Dr Wilson had supported this in her evidence before the Review Officer in which she said that damage can be caused by loss of circulation which causes rapid damage to the brain while the evidence in this case demonstrated that the circulation had continued unimpaired during the whole of the procedure. I am therefore satisfied that there is no causal link between the appellant's problems and the procedure carried out on 29 April 1995. 
While Mr Miller raised the issue of whether, in medical misadventure cases, the standard of proof resulted in a lower threshold than that normally required because of the use of the words ‘resulting from’ and ‘consequence of treatment’ as opposed to the use of the words ‘caused by’ I do not accept that submission. In West v Firestone Tyre and Rubber Company Cooke P noted that in a case of this nature the ordinary civil standard of proof on the balance of probabilities is the required standard. I consider that the Court must be bound by that finding. 
Mr Miller has submitted that it is imposing too high a burden on the appellant in cases of medical misadventure to satisfy the Court on the balance of probabilities that the approach he makes should be sustained. I do not consider that there has been any change in the requirement that an appellant must accept the burden on him to establish the claim which he makes. It is for the appellant to persuade the Court that the evidence available establishes that the facts upon which he relies for a decision in his favour. It is therefore necessary for this appellant to accept that burden and to satisfy the Court that he has suffered a personal injury as a result of medical misadventure. ”
The statutory provisions 
These are sections 5 and 8: 
“5. Definition of ‘medical misadventure’
For the purposes of this Act,- 
‘Medical error’ means 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: 
‘Medical misadventure’ means personal injury resulting from medical error or medical mishap: 
‘Medical mishap’ means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given, if- 
The likelihood of the adverse consequence of the treatment occurring is rare; and 
The adverse consequence of the treatment is severe. 
For the purposes of the definition of the term ‘medical mishap’, the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than I percent of cases where that treatment is given. 
8. Cover for personal injury occurring in New Zealand- 
This Act shall apply in respect of personal injury occurring in New Zealand on or after the 1st day of July 1992 in respect of which there is cover under this Act. 
Cover under this Act shall extend to personal injury which- 
Is caused by an accident to the person concerned; or 
Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or 
Is medical misadventure as defined in section 5 of this Act; or 
Is a consequence of treatment for personal injury covered by this Act. ”
The question is whether it is necessary for an applicant to show a causal connection between the sub-optimal treatment he received and his brain damage and if so what is the standard of proof. The Judge applied the decision of this Court in Brider & anor v ARCIC (unreported, Wellington Registry, AP 120/98, 3 December 1998, Doogue and Durie JJ) and referred to a decision of the High Court of Australia in Chappel v Hart (1998) 72 ALJR 1344. Mr Miller repeated his submission that the nature of the New Zealand legislation was that a relationship between trauma and injury of cause and effect was not essential. 
In my view the legislation proceeds on the basis that there must still be a causal relationship between accident and trauma. What is avoided is an enquiry into the cause or blame for the accident. Notwithstanding this basic proposition neglect still forms a prerequisite for liability for “medical error” as expressly stated in s 5. In the present case the facts establish “sub optimal” treatment, the dispute is whether this medical error caused the alleged damage to Reid. 
The burden of proof 
Mr Miller repeated the submissions he made in the District Court in this regard also. He submitted that requiring an applicant to prove the causal connection on the balance of probabilities was imposing too high a burden. In West v Firestone Tyre and Rubber Company [1992] 2 NZLR 23 the Court of Appeal was considering s 28 of the Accident Compensation Act 1982 involving an allegation that exposure to noxious substance in the workplace caused the plaintiffs cancer. At pp 30 to 32 Cooke P delivering the Court's judgment discussed the question of causation and observed that causation always has to be proved and quoted Clements v R [1953] NZLR 857. At p 32 he said: 
“As already mentioned, in our opinion causation must always be proved under s 28 but in some cases will be proved relatively easily by inference. What has to be proved requires, however, more discussion. ”
The President then discussed some cases relevant to the facts before the Court. In the present case it was suggested that res ipsa loquitur applied. 
The Judge below referred to a case Loveday v Renton [1990] 1 Med LR 117 as authority for the proposition that the presumption did not apply to such a case as this. The only report of the case available to me is its report in the Times of 31 March 1988. While Stuart-Smith LJ is not reported on the point the report says: 
“His Lordship was conscious of the force of the argument on close temporal association, notwithstanding that the reports took no account of background incidence and the force of the question ‘Surely it cannot all be coincidence?’ ”
The problem in that case was not dissimilar to the present and it was held that it had not been proved on the balance of probabilities that the vaccine used had caused the child's brain damage. 
The law as to the presumption is generally stated in Law of Torts in New Zealand (Todd et al, 2nd edition, at 6.4.3): 
“Res Ipsa Loquitur means ‘the event speaks for itself’. The maxim allows the Court to draw an inference of negligence from the mere fact that an event has happened, without the benefit of detailed testimony about exactly how it happened. It does not help resolve disputed questions of causation, where the event which caused the damage cannot be identified or where it cannot be pinned on the Defendant. ”
Mr Corkill submitted that in the medical area the rule has been held not to apply as medical science has not yet reached the stage where the law ought to presume that a patient must come out of an operation as well or better than he went into it. This was based on a quotation from Andrews J in Girard v Royal Columbian Hospital (1976) 66 DLR (3d) 676, 691. He also referred to a case where a baby suffered cerebral palsy following a forceps delivery Whitehouse v Jordan [1980] 1 All ER 650, 661. In my view it is abundantly clear that in this case involving a very young patient whose mental condition prior to the operation is not known, it is not possible to presume causation between the procedures and the baby's subsequent problems. Something more by way of evidence and opinion is necessary. 
An approach that would meet Mr Miller's position is that once it was established that the patient suffered from the condition after the procedure then it would be for the medical team to show the procedure did not cause the condition. That would be a reverse onus. In my view this amounts to the threshold being changed from showing the procedure caused the condition (or resulted in it) to showing only that it was possibly the cause, or it was possibly the result. I am in no doubt that if the legislation had intended such a reverse onus or to lower the threshold of proof it would have said so. 
It follows from the above discussion which essentially follows the tenor of the judgment below, that in my view an applicant must show on the balance of probabilities that the condition was caused by the procedures, and that on the state of the evidence and as a matter of fact he has failed to do so. 
Mr Miller suggested several approaches which would avoid proving causation or at least reducing the proof required to cover the possible connection that is mentioned. For the reasons I have given I consider that a causal connection is required by the use of the words “result” and “consequence” in the section I have quoted. The question of contribution to an outcome where a patient had a pre-existing weakness was not canvassed before me. I have proceeded on the basis that what must be established is a substantial cause but not necessarily the only cause. 
Trespass to the person 
Mr Miller submitted that the child through his guardian should not be taken to have consented to sub-optimal care. On the face of it no one facing an operation or treatment would agree to such. Mr Miller submits on this basis the treatment was a trespass to the person and so actionable. 
While it is true as Mr Corkill submitted that inadequate disclosure might give rise to liability in negligence, it would not vitiate consent. He relied on the following statement from the judgment of Bristow J in Chatterton v Gerson [1981] QB 432, 442. 
“I think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient, and that involved in a breach of duty of the claim is based on negligence …  
In my judgment, once the patient is informed of broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass. Of course if information is withheld in bad faith, the consent will be vitiated by fraud. … But in my judgment it would be very much against the interests of justice if actions which are really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass. ”
Mr Corkill drew attention to the fact that this approach has been approved by the House of Lords in Sidaway v Bethlem Royal Hospital [1985] AC 871, the Canadian Supreme Court in Reibl v Hughes [1982] SCR 880, High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479 and by the United States Court of Appeal, District of Colombia Circuit in Canterbury v Spence (1972) 464 Fd. 772
I respectfully also adopt this approach as did the Judge below and find that on the facts of this case what occurred did not vitiate the parents' consent and that no trespass has been established. 
In my view the Judge below did not make any error of law and the appeal is accordingly dismissed. There will be no award of costs. 

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