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Belling (aka Geraghty) V Acc (145/2004) Medical Misadventure

#1 User is offline   Ivan 

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Posted 27 September 2004 - 10:39 AM

District Court, Wellington (145/2004)
Judge J D Hole

Mr I Sowry, for Appellant
Ms K Smith, for Respondent


Preliminary Issue

  • On 22 November 1996 the appellant lodged a claim with the Corporation whereunder she claimed medical misadventure. She alleged that there had been a missed diagnosis resulting from the misreading of a cervical smear. This incorrectly indicated that she did not have a malignancy in her cervix. About 8 months later, after a correct diagnosis, she had major surgery, namely a hysterectomy. On 2 December 1997 the Corporation declined that claim.

  • On 8 March 2000 the appellant lodged a new claim for personal injury by medical misadventure. This alleged the same incident except that the claim was in respect of the misreading of the cervical smear, and referred to a new condition resulting, namely lymph oedema.

  • On 2 May 2000 the Corporation, acting pursuant to s 65(2)(b)(ii) Accident Insurance Act 1998, advised the appellant that a two months extension was required in order that it could obtain additional information. Thus, at that stage, it seemed that the Corporation was treating the claim document dated 8 March 2000 as a new and independent claim.

  • The Corporation failed to take any of the steps referred to in s 65(3) and no further extensions of time were agreed to pursuant to s 65(4) of the Act.

  • The Corporation claims that the reason it failed to take any further steps pursuant to s 65(3) is that it had concluded that the claim of 8 March 2000 was not a new claim but the reopening of the original claim.

  • By letter dated 31 August 2000 the Corporation declined the appellant’s claim. The reference used in that letter was that given to the 8 March 2000 claim and not that applicable to the original claim. When the two claims were amalgamated, the original reference was that used by the Corporation. The Corporation advises that the new claim number was used in error when the letter of 31 August 2000 was written. This plainly was a clerical error and nothing turns on it.

  • Section 66(1) provides that where the Corporation fails to comply with a time limit under s 64 or s 65, the insured is deemed to have a decision that the Corporation has accepted the claim.

  • In these circumstances, the question arises as to whether the claim dated 8 March 2000 was a new claim, and accordingly subject to the deeming provision contained in s 66, or if it was part and parcel of the original claim of 22 November 1996.

  • Section 73 of the Act is relevant and provides:

    (i)An insurer that considers it made a decision in error may revise the decision at any time, whatever the reason for the error.
    (ii)A revision may (a) amend the original decision; or (b) revoke the original decision and substitute a new decision.
    (iii)Every amendment to a decision, and every substituted decision, is a fresh decision.

  • The evidence establishes that, when the Corporation received the claim of 8 March 2000, it treated it as a new and discrete claim. This may have happened because no answer was given in the claim form to the question “previous claims for this injury?” On the face of the document, then, this was a new claim and it made no reference to the previous one.

  • Upon investigation, however, the Corporation appreciated the relationship of the claim of 8 March 2000 to the original one. As a result, it amalgamated the two files.

  • A comparison of the two claim forms indicates:

    (a)the same alleged injury – faulty reading of smear and resultant faulty diagnosis;
    (b)resulting in major surgery.

  • The significant difference between the two claim forms is that the claim form of 8 March 2000 discloses that subsequently lymph oedema occurred. Apart from that, however, the two claim forms are almost identical.

  • It seems to me that the Corporation was correct in concluding that the two claims were in fact the same. The claim forms were almost identical. The substance of them was also virtually identical. I accept that the claim form of 8 March 2000 placed greater emphasis on the misreading of the cervical smear rather than on the misdiagnosis. However, it is obvious that the misdiagnosis (if there was one) came about through a misreading of the smear (if that occurred).

  • It became apparent at the hearing before me that the real complaint raised by the appellant was neither a misdiagnosis nor a misreading of the cervical smear. Her concern is that the original smear was taken as a result of her general practitioner observing an abnormality. The general practitioner reported the abnormality when submitting the smear to Medlab. In these circumstances, instead of merely reaching a finite conclusion that there was no malignancy, Medlab should have reported back to the general practitioner requiring that a further smear be undertaken. This is especially so because of the relatively young age of the appellant at that time and the fact of the reported abnormality. This allegation, of course, raises somewhat different issues from that disclosed in the claim form of 8 March 2000. However, the Corporation became aware of the real reason for the new claim in the course of its inquiries.

  • I have already indicated that, both in form and in substance, the two claim forms seem almost identical. In practical terms, however, a further injury has been claimed, namely the lymph oedema. Furthermore, the cause of the lymph oedema was clarified as the claim proceeded. It was not the misreading of the cervical smear that was alleged to be the cause of the lymph oedema but rather the failure to take the matter further and make additional inquiries upon the original diagnosis indicating no malignancy.

  • When one looks at the two claim forms and compares them, as I have done, and then considers them in the light of the procedure set out in the legislation, it seems to me that the way the Corporation treated the two claims was correct. Initially it treated the claim of 8 March 2000 as a new and discrete claim, as it was not informed of the previous claim. Upon becoming aware of the previous claim, and considering the two together, it concluded that the second claim was part and parcel of the first. In these circumstances, it is clear that the Corporation treated the second claim as an application to revise its original decision in respect of the first claim. Section 73 of the Act was invoked.

  • I conclude, therefore, that the claim form of 8 March 2000 did not have to be dealt with in accordance of s 65 of the Act, and that s 72 applied. It follows that there was no deemed decision pursuant to s 66 of the Act.


  • The two issues which now arise are:

    (a)Was the failure to take further action medical misadventure?
    (b)If so, did this result in more extensive surgery leading to the lymph oedema?

    Was the failure to take further action medical misadventure?

  • In terms of the Act, medical misadventure is either medical error or medical mishap. Section 36(1) defines medical error as follows:

    “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”.

  • In the context of this case it can include the negligent failure to give treatment. it should be noted, however, that s 36(3) provides:

    “Medical error does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results”.

  • On 27 September 1997, Professor Linda Holloway, Dean and Professor of Pathology at the Wellington School of Medicine, considered that, for the reasons that I have already mentioned, it would have been prudent to have had the slides reviewed by a histopathologist in the practice and also to have made a comment on the abnormality in the report by Medlab to the general practitioner.

  • Mr K R Anderson, a consultant pathologist, noted in his report dated 11 July 1997:

    “The initial smear was examined and reported by fully qualified primary and secondary screeners. The laboratory was Telarc accredited. When the eventual diagnosis of carcinoma was made in 1995, the earlier 1994 smear was re-examined and, in retrospect, it was considered to be positive. The smear was re-examined by the same screeners and also by the cytopathologist, Dr Elizabeth Chapman”.

  • He also stated:

    “It is a commonly held view among pathologist that a laboratory provides an acceptable standard of care and skill if staff were appropriately qualified, normal quality procedures are carried out and the laboratory is credited (i.e. Telarc). In such a laboratory, an isolated failed screening test, when there is a well known error rate for that test, would not constitute medical error as defined in the Act”.

  • In an undated letter to the Corporation, Mr Ian Barlow, Manager, Anatomical Pathology, of Medlab Hamilton commented:

    “In the national cervical screening programme booklet – Guidelines for the management of women with abnormal cervical smears – it is stated: ‘The cervical smear will be part of the investigation of women with signs and/or symptoms of cervical cancer. It is not sufficiently sensitive however, for a negative result to override clinical concerns. Such women should be referred for gynaecological assessment irrespective of the smear result’.

    A letter from Mr Kitchen dated 9th September 1997 indicates that referral would have been appropriate when the polypoid lesion was first seen”.

  • Indeed, Mr David Kitchen, (the obstetrician and gynaecologist who in fact operated on the appellant), stated in his letter dated 9 September 1997:

    “Colposcopy is appropriate for any suspicious lesion of the cervix. However a small nodule in a 22 year old as a presenting symptom of invasive cancer is unusual and the appropriateness of referral for colposcopy would really depend on the suspicion with which the lesion was viewed. Cysts and obstetric trauma can produce unusual appearances to the cervix and a number of referrals are performed for these reasons. However, colposcopy is appropriate for any suspicions lesion on the cervix”.

  • In summary, Professor Holloway thought further investigation would have been prudent. Mr Kitchen was not quite so emphatic and noted that the appropriateness of referral for colposcopy would really depend on the suspicion with which the lesion was viewed. In considering medical error in this case, it ahs been the actions of Medlab which have been placed under scrutiny. In my opinion, there is insufficient evidence which indicates that Medlab failed to carry out the duty of care which it owed to the appellant by making a more sophisticated report to the general practitioner. Indeed, if medical error did exist (and this is not proven) it might be said that the general practitioner failed to undertake further procedures at an appropriate time. This has never been suggested and there does not seem to be any evidence to support such a suggestion.

  • The investigations into the appellant’s case have primarily focused on the possibility of medical error. However, in his report dated 11 July 1997 Mr Anderson raised the possibility that the circumstances of this case might more appropriately come within the definition of medical mishap. He stated:

    “The incidence of a failed screening test, as I pointed out earlier, is about three per ten thousand smears examined. If this were to be regarded as a complication of treatment then it would be sufficiently rare to qualify for medical mishap. I feel the committee should give consideration to categorizing this type of case as medical mishap”.

  • Mr Kitchen, in his report dated 31 August 2001, did give some consideration to the possibility of medical mishap when he stated:

    “I have discussed this with John Whittaker who is a Gynaecological Oncologist in Auckland and his view was that the incidence would be more than 1% but local figures are not available. My conclusion is that an earlier diagnosis would probably have avoided the necessity for radical surgery. The incidence of the complication of lymph oedema is likely to be greater than 1%.

    Medical mishap is defined in s 37 of the Act. The relevant portions of s 37 read:

    (1) (a) The treatment is given to an insured, is given properly, and is given by or at the direction of a registered health professional; and
    (b) The adverse consequence is suffered by the insured; and
    © The adverse consequence is severe (as defined in subsection (2)); and
    (d) The likelihood that treatment of the kind that was given would have the adverse consequence is rare (as defined in subsections (3) and (4)).
    (2)The adverse consequence is severe only if it results in the insured—
    (a) Dying; or
    (b) Being hospitalised as an inpatient for more than 14 days; or
    © Suffering significant disability lasting more than 28 days in total.
    (3)The likelihood that treatment of the kind that was given would have the adverse consequence is rare only if the probability is that the adverse consequence would not occur in more than 1% of cases in which that treatment is given.

  • When one considers that the definition in respect of the circumstances of this case, it is clear that false diagnosis would come within most aspects of the definition. Undoubtedly, the reading of a smear would constitute treatment. If it could be said that the adverse consequences, including lymph the oedema, were caused by the false diagnosis or failure to take action, then plainly they were adverse and sever. Finally, there is a possibility that adverse consequences could be regarded as rare in that “the probability is that the adverse consequence would not occur in more than 1% of cases”.

  • Two problems arise: the first is not established on the evidence: that the probability of adverse consequences would not occur in more than 1% of cases. Again, the impression from the quotation taken from Mr Anderson’s letter was that he thought the appellant would qualify in this regard: Mr Kitchen, plainly, was not sure.

  • The real difficulty with medical mishap as it affects this appellant is to determine whether false diagnosis or, indeed, the failure to take further action, can be said to have resulted in the adverse consequences (being the radical surgery and consequent lymph oedema). I deal with this in the following paragraphs.

    Did the medical misadventure result in more extensive surgery than would otherwise have occurred, thus resulting in lymph oedema?

  • The evidence in this regard is equivocal. Mr Anderson said in his report dated 11 July 1997:

    “Whether personal injury resulted from the failed cervical smear is doubtful. Although the tumour had grown between the smear procedures in 1994 and 1995 it is unlikely that the treatment would have been any different. Although surgery would have been preformed earlier Mrs Geraghty would have been subject to the same type of complication. I do notice that the subsequent hysterectomy specimen showed no evidence of residual tumour”.

  • In his report dated 9 September 1997 Mr Kitchen stated:

    “Although it is difficult to be sure of the rate of tumour progression it is possible that if the correct diagnosis had been made 9 months earlier I October 1994 a more simple procedure than radical hysterectomy would have been appropriate. If the tumour invasion had been no more than 3mm with no vascular involvement a large cone biopsy or simple hysterectomy would have been sufficient for her management.

    If a simple hysterectomy was performed the extra morbidity of radical surgery would have been avoided. This would relate to the need for lymphadenectomy, excision of the parametria and cuff of vagina”.

  • It is to be noted that the most Mr Kitchen was able to say was that there was a possibility that a more simple procedure than radical hysterectomy would have been appropriate.

  • Professor Holloway agreed. In her report dated 22 September 1997, she stated:

    “From the description of the biopsy specimen (which I have not reviewed) the decision to perform a radical hysterectomy was appropriate. There is a possibility that if the lesion had been biopsied earlier, that early lymphatic invasion might not have been present in which case more conservative treatment could have been undertaken”.

  • Again, Professor Holloway raises the possibility of less radical treatment but takes the matter no further.

  • Thus, there is the evidence of Mr Anderson, who says that the same surgical procedures would have been required regardless of when the positive diagnosis had been made. Mr Kitchen and Professor Holloway both acknowledge the possibility of less radical procedures if the earlier diagnosis had been achieved: however, neither of them are prepared to be more positive.

  • None of the specialists has commented on what surgical procedures would have resulted if the medical misadventure had been a failure to inform or take further action (as is now alleged). Both of these would have resulted in more delay than a misdiagnosis. This would have resulted in weakening the causative link.

  • In order for the appellant to succeed with this appeal, it has to be established on the balance of probabilities that the medical misadventure (whether it be false diagnosis or failure to take further actions) caused the radical surgery leading to the lymph oedema. In this regard, the medical evidence is equivocal. In other words, none of the medical experts seem to know with any degree of certainty. That being the case, the only conclusion available to me is that it has not been established on the balance of probabilities that there is a causal nexus between medical misadventure and the persistent problems currently being experienced by the appellant.


  • There is no doubt that the appellant is deserving of great sympathy: she has had a dreadful time as a result of the cancerous smear and resultant surgery. However, for her to succeed, the claim had to come within the straightjacket imposed by the legislation which governs these matters. As her claim does not fall within the statutory criteria, the appeal must be dismissed.


#2 User is offline   Ivan 

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Posted 27 September 2004 - 11:04 AM

This was an appeal in which I represented the claimant earlier this year. I think this judgment is of some relevance in the context of the IPRC (No 3) Amendment now before the Select Committee. Even under the proposed 'treatment injury' legislation, I think this claim would have failed.

The problem is that the Court would not accept thre was sufficent evidence to establish a causal link between the injury (i.e. the lymph oedema) and the alleged medical misadventure. I think this was wrong - the development of the cancer to a larger size that it had been at the time of the misdiagnosis is, in my view, itself a personal injury. Diseases attract cover if they are caused by medical misadventure. My submission to the Court was that the spreading of the cancer to previously healthy cells should, itself, attract cover if medial misadventure could be shown.

However, the Court did not address this submission in its judgment, and focused solely on the extent of the surgery required. Since the issue wasn't addressed in the judgment, I can only speculate that the Court's reasoning must have been that the development of the cancer into previously healthy cells was an aggravation of a previously existing condition, rather than a new personal injury caused by the failure to diagnose and treat.

I did consider an appeal to the High Court on this point, but decided that, even if successful, it would not benefit the claimant because, on the facts, I had been unable to establish that there had been medical misadventure. So the Court judgment stands as a rather unfortunate precedent, in my view.

It would be good is some submitters could raise this case at oral submissions on the Bill. We don't want the situation to continue where claimants in circumstances similar to this appellant are denied cover, even if medical error or mishap no longer need to be proven.


#3 User is offline   flowers 

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Posted 29 October 2006 - 09:43 AM

I think there was was some discussion about the possibility of this judge misleading himself in an earlier case a couple of years ago
and it seems to me be somewhat similar , cannot find the thread but perhaps search might turn it up.

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