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Claim over needless surgery fails

#1 User is offline   hukildaspida 

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Posted 21 March 2013 - 07:47 PM

Are you refering to this article & case keentohelp?

Claim over needless surgery fails
SALLY KIDSON
Last updated 13:00 21/03/2013


http://www.stuff.co....s-surgery-fails


A woman whose jaw bone was partly removed after a "shocking" laboratory error resulting in a wrong diagnosis of cancer has lost a bid for further compensation from ACC.

As a result of the wrong diagnosis the woman had surgery to remove gum and jawbone under four teeth that were removed.

She then required extensive surgical reconstruction of her jaw, including bone and tissue grafting from a left leg bone.

After the surgery she discovered the cancerous tumour was from another patient whose sample was mixed up with hers in a testing laboratory. Her extensive surgery was not necessary.

She has suffered serious and ongoing problems with her jaw following surgery.

The woman's name and identifying details are suppressed. Her case came to light during an appeal of her ACC payment in the Wellington District Court in February.

She was represented by Nelson lawyer Rob Ord, who declined to comment on the case.

The woman was awarded $10,889 from ACC in 2011. This was based on her being assessed for compensation at 24 per cent under whole person impairment (WPI) evaluation.

That figure was upheld in a review on May 16. The decision was then appealed in a hearing in the Wellington District Court on February 21.

Judge David Ongley said the woman was the victim of a "shocking error" and her case was included in a Report of the National Panel to Review Breast Biopsy Errors 2012.

It found that the woman's oral biopsy specimen and an unrelated specimen were placed next to each other during processing at a laboratory.

During the stage of description and specimen transfer the samples were inadvertently transposed.

Judge Ongley said that an appropriate sum of compensation for non-economic loss from the woman's impairment would be "far in excess" of $11,000. However, lump sum awards under the law were limited to awards based on the whole person impairment.

There was no provision to pay any sum in excess of regulations.

Judge Ongley dismissed the appeal. He said he was restricted to deciding the correctness of a decision made by ACC.


- © Fairfax NZ News
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#2 User is offline   unit1of2 

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Posted 28 March 2013 - 10:53 PM

I daresay the woman wouldn't get much out of the money she was awarded... For such an ordeal she has been through and has to live with, it's an appalling $ figure really....
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#3 User is offline   REX 

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Posted 28 March 2013 - 11:52 PM

View Posthukildaspida, on 21 March 2013 - 07:47 PM, said:

Are you refering to this article & case keentohelp?

Claim over needless surgery fails
SALLY KIDSON
Last updated 13:00 21/03/2013


http://www.stuff.co....s-surgery-fails


A woman whose jaw bone was partly removed after a "shocking" laboratory error resulting in a wrong diagnosis of cancer has lost a bid for further compensation from ACC.

As a result of the wrong diagnosis the woman had surgery to remove gum and jawbone under four teeth that were removed.

She then required extensive surgical reconstruction of her jaw, including bone and tissue grafting from a left leg bone.

After the surgery she discovered the cancerous tumour was from another patient whose sample was mixed up with hers in a testing laboratory. Her extensive surgery was not necessary.

She has suffered serious and ongoing problems with her jaw following surgery.

The woman's name and identifying details are suppressed. Her case came to light during an appeal of her ACC payment in the Wellington District Court in February.

She was represented by Nelson lawyer Rob Ord, who declined to comment on the case.

The woman was awarded $10,889 from ACC in 2011. This was based on her being assessed for compensation at 24 per cent under whole person impairment (WPI) evaluation.

That figure was upheld in a review on May 16. The decision was then appealed in a hearing in the Wellington District Court on February 21.

Judge David Ongley said the woman was the victim of a "shocking error" and her case was included in a Report of the National Panel to Review Breast Biopsy Errors 2012.

It found that the woman's oral biopsy specimen and an unrelated specimen were placed next to each other during processing at a laboratory.

During the stage of description and specimen transfer the samples were inadvertently transposed.

Judge Ongley said that an appropriate sum of compensation for non-economic loss from the woman's impairment would be "far in excess" of $11,000. However, lump sum awards under the law were limited to awards based on the whole person impairment.

There was no provision to pay any sum in excess of regulations.


Judge Ongley dismissed the appeal. He said he was restricted to deciding the correctness of a decision made by ACC.


- © Fairfax NZ News


http://www.acc.co.nz...d/SS_WCM_049737

179A EX GRATIA PAYMENTS

179A (1) In any case where a person suffers personal injury by accident, or dies as a result of personal injury so suffered, and—

(a) The accident happens in New Zealand and the person does not have cover under this Act in respect of the injury; or

(b ) Notwithstanding that the person has cover under this Act in respect of the injury, the Commission is satisfied that there are such special circumstances as to make it reasonable and proper that ex gratia provision should be made additional to any compensation or rehabilitation assistance that would otherwise be available,—

the Commission may, subject to the prior approval of the Minister of Finance, pay and provide, on an ex gratia basis, compensation and rehabilitation assistance on such terms and conditions and of such amount and nature as, having regard to all the circumstances of the case, it considers appropriate.


179A(2) Any compensation or any amounts in respect of rehabilitation assistance paid under the provisions of this section shall be charged to the Supplementary Compensation Fund.

179A(3) Notwithstanding anything to the contrary in this Act, no application for review or appeal under the provisions of Part VII of this Act may be made, nor shall any other remedy be available, in respect of any decision of the Commission under or in relation to this section.

History

S 179A inserted by No 113 of 1973, s 57, effective 1 April 1974 (refer SR 1973/290, reg 2).



If the good judge see this as quoted...

Quote

Judge Ongley said that an appropriate sum of compensation for non-economic loss from the woman's impairment would be "far in excess" of $11,000.



Then... this section could apply..

Quote

179A(b ) Notwithstanding that the person has cover under this Act in respect of the injury, the Commission is satisfied that there are such special circumstances as to make it reasonable and proper that ex gratia provision should be made additional to any compensation or rehabilitation assistance that would otherwise be available,—

the Commission may, subject to the prior approval of the Minister of Finance, pay and provide, on an ex gratia basis, compensation and rehabilitation assistance on such terms and conditions and of such amount and nature as, having regard to all the circumstances of the case, it considers appropriate.



If I was the lady,, I would make a request back to the Acc for consideration by the commission, to have this approved by the Finance Minister for an EX GRATIA PAYMENT.

As it does have a clear supporting statement by the good judge who says payment over and above would be appropriate... B)

It really just proves the saying "deny at all cost"..

This appeal would have been fought by a lawer costing approximately $6000..

This money could have gone to the victim instead of the lawyer firm, and it would have made a difference to this lady..

This lady has been through another ordeal just having to get through a review and appeal.
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#4 User is offline   Alan Thomas 

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Posted 29 March 2013 - 12:30 AM

Another reason why the ACC scam is unworkable.
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