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Estate of S H v Accident Compensation Corporation [2006] NZACC 166 (6 July 2006)

IN THE DISTRICT COURT
WELLINGTON REGISTRY

Decision No. 166/2006

AI 23/05

UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to section 151 of the Act

BETWEEN ESTATE OF S H

Appellant

AND ACCIDENT COMPENSATION CORPORATION

First Respondent

AND

DOCTORS A, H and E

Second Respondents

BY CONSENT HEARD ON THE PAPERS

DATE OF THIS RULING 6 July 2006

REPRESENTATION

Ms A de Jonge, advocate for appellant
Mr H J Peart, counsel for first respondent
Ms G Phipps, M McLelland and W Manning, respective counsel for second respondents

RULING OF JUDGE P F BARBER
ON APPLICATION TO STRIKE OUT APPEAL

The Pleadings

[1] The first respondent has applied that this Court dismiss the appeal on the grounds that there is no longer any live issue because the first respondent has accepted the appellant’s claim for personal injury cover.

[2] The first named second respondent makes similar application (and seeks costs). He refers to the present appeal pursuant to the 2001 Act being from a Reviewer’s decision of 30 December 2004 dismissing the appellant’s application to review the first respondent’s 19 July 2004 decision declining cover for medical misadventure. He emphasises that on 26 October 2005 the first respondent accepted full cover for the appellant’s claim and pleads the consequence to be that the current appeal is “moot”; is an abuse of process; and that this Court no longer has jurisdiction to hear and determine it.

[3] There is an application from the second named of the second respondents to strike out the appeal (and for costs) on the grounds that this appeal arises from the first respondent’s 30 December 2004 decision declining cover for personal injury by accident arising from the 12 September 2000 suicide of the late SH and her appellant estate now has full cover for the resulting claim of personal injury by accident. The availability of that cover was communicated to the appellant by 26 October 2005 letter from the first respondent. All these applications are supported by the third named second respondent.

[4] The appellant has filed a notice of opposition to the said applications. This is on the grounds that this appeal comprises a medical misadventure declined by the Reviewer which needs to be appealed in terms of natural justice, the public interest and, particularly, under s.27 of the New Zealand Bill of Rights Act 1990. In that notice of appeal, Ms de Jonge refers to the late SH as having suffered a drug induced iatrogenic injury which she did not have prior to medical treatment.

Further Background and Evidence

[5] The application from the first respondent is supported by a 16 February 2006 affidavit of Ms A Coles deposing that she is an ACC Team Manager, at Hamilton, specifically managing accidental death cases inter alia. An aspect of her work is to assist in considering claims for cover and entitlements when a person has taken his or her own life. She refers to the late SH having died in September 2000 but to the deponent commencing to handle the appellant’s claim in October 2005 when it was transferred from the first respondent’s New Plymouth branch to its Hamilton service centre.

[6] Ms Coles and her staff very soon determined that cover should be granted for the late SH’s death by suicide as a “personal injury by accident”. Accordingly, a Claims Manager of the first respondent issued a 26 October 2005 decision accepting full cover in that respect. This meant that the first respondent would pay a funeral grant. It seemed to be relevant that SH had a clearly diagnosed mental condition.

[7] Ms Coles also deposed that in August 2001 the appellant’s original claim for cover for personal injury by accident had been erroneously declined by the first respondent. That caused the appellant to lodge a further (and separate) claim for medical misadventure in November 2002 for cover regarding the late SH’s death but for allegedly different reasons than previously. Ms Coles then deposes:

“8. In normal circumstances when a second claim for cover is lodged for the same incident, it is treated by ACC as a duplicate of the first claim. However, in this case when the medical misadventure claim was lodged, it was incorrectly dealt with separately (and it was accorded a separate claim number), when it should rather have been a reactivation of the previous cover claim, as there was no new or different injury.”

[8] Ms Coles then stated that there can only be one actual claim for cover in the circumstances of this case, and that claim has been accepted, so that the first respondent “is unable to provide anything further beyond what it has agreed to provide in its letter of 26 October 2005”.

[9] Ms Coles noted that the appellant estate wishes to pursue its claim in this Court on the grounds of medical misadventure. However, she understands that the first respondent, having granted cover for SH’s death as a “personal injury by accident”, cannot also grant cover for the death on any other grounds. She then deposes:

“My belief is that any findings in relation to the doctors’ conduct would need to be made by someone other than ACC.”

[10] She then deposes awareness of the appellant having lodged a complaint to the Health and Disability Commissioner in respect of two of the doctors involved in the care of the late SH at material times. She refers to that Commissioner’s 11 November 2003 opinion, from which she annexes extracts, and to that Commissioner having found that the conduct of the two unnamed doctors did not breach the Health and Disability Code.

[11] A 23 February 2006 affidavit has been filed by Mrs CH, the mother of the late Ms SH, in opposition to the application to strike out.

[12] Mrs H deposes that the first respondent is misleading the Court to claim that the appellant’s September 2002 medical misadventure claim is no longer a live issue. She emphasises that the appellant does not seek cover twice. She seems to be deposing that the original claim was closed over four years ago and that only the medical misadventure claim is live. She then deposes:

“6. Ms Coles’ sworn explanation about the administration errors differs greatly from ACC’s written communication to me; and to ACC guidelines to financial support for the bereaved where an accidental death has occurred.”

[13] She refers to a brochure of the first respondent indicating that, although a death may be accidental, it may still have occurred through medical misadventure. She records that she first wrote to the first respondent on 8 May 2001 requesting assistance for funeral expenses but that claim was declined and the appellant did not take it to review. However, various further discussions took place between the respondent’s staff at New Plymouth and Mrs H. On 30 October 2001, Mrs H wrote to the first respondent enclosing a document entitled “Finding Answers and Reaching Understanding of the Anxiety State, Medication and Suicide”. In her accompanying letter, Mrs H advised that “The sections on psychotropic medications, and suicide (that is whether it is committed wilfully) are important considerations for ACC.” A staff member of the first respondent then gave Mrs H a medical misadventure brochure but Mrs H did not have the appellant lodge a medical misadventure claim until September 2002 “when it became apparent that ACC and Government had taken no constructive action to their commitment to reduce the incidence and impact of personal injury, or to warn the public of the risks of psychotropic drugs and their link in causing physical and mental injuries.”

[14] Mrs H understood that medical misadventure claim was treated as a new claim and was not a duplicate of the previous claim. She received a 6 November 2002 letter from the first respondent’s medical misadventure unit advising:

“If the claim is accepted you may apply for help with funeral expenses and other entitlements available for accidental death.”

[15] Mrs H refers to there having been a December 2004 Review Hearing of the first respondent’s decision to decline the medical misadventure claim; although, just prior to the hearing, she seems to have been told on behalf of the first respondent that it had been in error to decline the original claim for funeral expenses.

[16] In any case, on 26 October 2005 the first respondent’s, Claims Manager, at Hamilton, advised that it now accepted full cover under the original claim and, without waiting for any response or acceptance from the appellant, sent Mrs H a cheque for funeral expenses. Mrs H did not accept that settlement. Her concern seems to be her view that medical treatment administered to the late SH was without diagnosis, and without a reasonable standard of care and fully informed consent. She submits that is medical error. She then deposes:

“26. A single dose of prescription drugs can have toxic effects, and as drug administration is continued, the brain damage/mental injury is progressive. The progressive nature, as opposed to a single incident/injury, is evidenced by the increasing number of mental disorders doctors diagnosed in [S] as treatment continued. Several incidents occurred and [S] sustained injuries over the period from 24/5/00 until her death on 12/9/00 ...... These papers refer to injuries incurred by the first three of six suicide attempts, before the 7th attempt was completed and resulted in a fatal injury to [S].”

[17] Mrs H then refers to the first respondent having accepted the original claim “based on the fact that [S] had a clearly diagnosed mental condition” and that “ACC now accepts that SH’s death was the result of mental injury”. She deposes that she has medical evidence to show that S had not suffered a mental condition or a mental injury prior to drug treatment and that S medical records from January 1997 to 31 December 1999 show a history of migraine headaches, and no history of any of the mental conditions “illness” with which she was diagnosed during drug treatment. Mrs H then deposes:

“31. In June/July 2000, [S] and I began working together on an anxiety-reducing programme given to [S] by Dr Maroti, Northland Heath. I have read [S]’s written responses to the study sessions we completed. She recorded anxiety/panic as starting ‘since mid January/end January’, i.e. after Lorazepam was prescribed and a single dose of Aropax ingested. [S] also wrote that she ‘originally [had] panic attacks every day – for a week’. The only time [S] had panic attacks for a week was when she went into Lorazepam withdrawal, and after the dose of Aropax on 27/1/00.”

[18] Mrs H then refers to two particular doctors advising the first respondent that the mental conditions diagnosed by them did not exist before the late SH’s drug treatment; that there is no evidence of mental conditions anywhere in the late SH’s medical records prior to drug treatment; that her mental conditions were not caused by previous accident/injury; that the mental conditions were not caused by nervous shock, or sexual, physical or mental abuse; and that the mental conditions occurred during and were caused by drug treatment. Mrs H then deposes:

“34. I have the medical evidence from medical experts to show that the mental and physical injuries and [S]’s death were caused by the treatment. In accordance with natural justice, ACC law and the New Zealand Bill of Rights, we have the right to present that evidence.”

[19] Finally, Mrs H deposed, inter alia, that the health and Disability Commissioner’s views are irrelevant and wrong.

The Issue

[20] I need to decide whether there is still a live issue in respect of the appellant’s claim for cover; and whether it is an abuse of process to allow the appeal to proceed on the basis of medical error when cover for personal injury has been accepted by the first respondent.

Reasons for Decision

[21] I received very helpful submissions from counsel for the respondents and from the advocate for the appellant. I incorporate salient submissions into my following reasoning.

[22] On 20 August 2001 the first respondent initially declined a claim for cover in relation to SH’s death by suicide as “personal injury caused by accident”. The first respondent then puts it that such claim was relodged and investigated as a separate claim for “personal injury caused by medical misadventure”, namely, alleged medical error. The appellant puts it that a separate claim based on medical misadventure was subsequently lodged.

[23] It does not seem to matter to me whether the latter claim is treated as a reactivation of the first claim or as a separate claim.

[24] Initially, the second application was also declined and the appellant proceeded to take that to review and to appeal to this Court. In the meantime, the first claim was reopened and granted on 26 October 2005 by the first respondent accepting cover for SH’s death under the Accident Insurance Act 1998 as a personal injury by accident. Entitlements by way of a funeral grant have been approved under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

[25] I agree with the respondents’ submissions that the first respondent’s 19 July 2004 decision declining cover for medical misadventure has been overtaken by its 28 October 2005 decision to accept cover for personal injury by accident. Accordingly, there is now no issue in dispute, in terms of the jurisdiction of this Court, regarding cover under the Act. Although it happens that the first respondent investigated the appellant’s claim for cover regarding the late SH’s death on the alternative grounds of personal injury by accident and medical misadventure, the issue of cover still arises out of the same facts for the same claimant. This Court is still faced with the same type of claim for exactly the same injury. Cover cannot be provided twice for the same injury.

[26] Administratively, there seems to have been some confusion in the way the first respondent dealt with this claim. However, I am only concerned with the substance of the appellant’s entitlements i.e. about the fact of cover rather than its form. All confusion on the part of the first respondent has now evaporated and been resolved with a proper outcome for the appellant. Although the appellant would prefer a finding of cover for personal injury as a result of medical error, there is no practical benefit in seeking that because cover has been accepted in full under a different ground. The ground under which a claim is accepted has no bearing on the scope of cover or on available statutory entitlements.

[27] The District Court recently considered this issue in Taylor v ACC (39/2006). There, ACC had accepted cover on the ground of medical mishap. However, the appellant still wished to pursue an allegation of medical error, despite conceding that he could gain nothing further in terms of cover and entitlements. Judge Cadenhead found in those circumstances that there was no live issue and the appeal was “moot”. He confirmed that the New Zealand Courts will not hear appeals where there is no live issue between the parties and the questions desired to be argued are academic. Judge Cadenhead referred to the case of Maddever v Umaware School Board [1993] 2 NZLR 478, where Williams J affirmed that:

“The mootness doctrine is really the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live. (page 502, line 41).

...

A New Zealand example of mootness is Turner v Pickering [1976] 1 NZLR 129 where relief was refused because since the commencement of the proceedings, events had occurred which rendered the outcome of the case irrelevant.” (page 502, line 48)

[28] In accordance with the above principles, there is no live issue before me in the present appeal. The question of alleged medical error is academic in the face of cover having been granted to the appellant under an alternative ground. The appellant cannot obtain any further cover or entitlements. The District Court dos not have a declaratory function in respect of hypothetical questions (Slee v ACC (344/2005), Taylor (supra)).

[29] The appellant puts it that the claim for medical error is a discrete claim for a number of personal injuries sustained by SH’s prior to her death, as well as the ultimate event. However, cover has been provided independently for all those injuries but not for the reason of medical misadventure.

[30] In her affidavit, Mrs H seeks to make much of administrative issues regarding whether the claim for medical error was or was not a “duplicate claim” of the claim for personal injury caused by accident. However, the injury claimed for is SH’s death by suicide. The first respondent is only interested in the cause of that injury insofar as it gives rise to statutory cover and then entitlements. By accepting cover for the claim, the first respondent’s purpose for investigating the cause of the injury has been achieved. That it elected to classify the claim as personal injury by accident, rather than medical misadventure, is not something the appellant can continue to challenge in the circumstances. The first respondent is unable to provide anything further beyond that in its 26 October 2005 letter i.e. full cover. Accordingly, the allegation of medical error is now academic in this jurisdiction.

[31] I agree with the respondents that this appeal is an unnecessary and inappropriate use of this Court’s time and resources. It is the wrong forum for the appellant to pursue medical practitioners. The appellant seeks a declaration of medical error which is not available in the hypothetical.

[32] The purpose of the ACC scheme is to determine whether cover, and hence entitlements, flow from a personal injury. There is no punitive or disciplinary aspect to this role.

[33] Cover in this case falls under the 1998 Act which is itself unique in the ACC context, as there is no “reporting” obligation upon the first respondent in that Act. In Taylor (supra), Judge Cadenhead said in respect of the 1998 Act:

“[38] As can be seen the statutory purposes are the provision of cover and compensation. The accent is to maintain a no fault, comprehensive, insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who suffer personal injury. The purpose of the legislation is not that of a disciplinary nature.”

[34] In Taylor, Judge Cadenhead summarised the purpose of the 1998 Act as follows:

“[53] Closely linked to this finding is that the Accident Insurance Act 1998 is concerned with statutory compensation. This statute does not have a disciplinary function and unlike the 1992 legislation or the 2001 legislation there is no power in the Corporation to report its findings to a relevant professional body. In my view, to use the legislation in this way is ulterior to the purposes of the statute. Even in the earlier and later statutes it was the Corporation that had that power not the appellant.”

[35] The issues relating to alleged medical error and the standard of care by medical practitioners of SH prior to her death seem questions more appropriately to be posed to the Health and Disability Commissioner or the Director-General of the Medical Council. I note that the Health and Disability Commissioner has considered a complaint by the appellant in this case and found there was no breach of the Health and Disability Code by the doctors involved.

[36] Mrs H records in her affidavit that she remains “aggrieved about many aspects of his investigation” and she believes the opinion “is a miscarriage of justice”. However, ACC cannot be regarded as a “backstop” to the Health and Disability Commissioner in this regard.

[37] The issue of medical practitioners’ culpability in any medical misadventure claim is entirely ancillary to the issue of whether cover should be granted. In the same fashion as the appellant in the Taylor case, the present appellant is dissatisfied with the form of the cover; but to pursue this complaint through the ACC forum in these circumstances would be an abuse of process.

[38] The issue on appeal is moot or academic. The first respondent has accepted the appellant’s claim for cover for personal injury, and cannot do so twice. Also, the continuation of this appeal would be an abuse of process. The appellant takes issue with the form rather than the fact of cover. This is ulterior to the purpose of the ACC legislation.

[39] It is inconsistent with the purposes of the 2001 Act to inquire into conduct of individuals when the issue about compensation for personal injury by accident has been resolved.

[40] It would be an abuse of judicial resources and processes to permit the appellant attempt to use this Court as an investigating agency for a medical error where there is no live issue about compensation for personal injury. This Court no longer has any jurisdiction to hear and determine the present appeal because the issue of personal injury by cover has been determined. There is no live issue to be resolved.

[41] The appellant challenges the Reviewer’s decision which declined cover on the ground that medical error had not been established. However, the Reviewer’s decision has been overtaken by the first respondent’s 26 October 2005 decision accepting cover as a personal injury by accident under the 1998 Act. This means that the appellant now has the cover for which she originally applied and qualifies for all of the entitlements which flow from it. Even if successful, this appeal would not disturb that outcome; the appellant would not qualify for additional cover or entitlements.

[42] The appellant does not seek to disturb the decision about cover, but the ground for that decision; specifically, by substituting medical error for personal injury by accident. However, that issue is “academic” or “moot” in the sense that the answer to it cannot affect the rights and obligations of the parties. The doctrine of mootness applies even where there is an actual controversy between the parties at the time the appeal is filed, but where (as here) that controversy is extinguished by a subsequent event. At that point the controversy is no longer live and, as a consequence, the appellant no longer has standing.

[43] This is the type of situation which Viscount Simon LC was referring to in Sun Life Assurance Co of Canada v Jervis [1944] AC 111, 113-114, (cited with approval by Lord Slynn in R v Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42, and by Judge Cadenhead in Taylor v Accident Compensation Corporation (paragraph 26)) when Viscount Simon L G said:

“I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way ... I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.”

[44] In Abdi v Secretary of State for the Home Department [1996] 1 All ER 641, Lord Slynn recognised the possibility that the Court might hear an appeal as to a question of public law involving a public authority, even when there was “no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se”. His Lordship went on to hold that the appeal before the House on that occasion did not meet that criteria saying:

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straight forward and in other cases the problem of when a determination is made may depend on the precise factual context of each case ...”

[45] The issue of medical error raised by this appeal is inherently fact-specific. It would turn upon the statutory definition of “medical error”, i.e. failure to observe a standard of care and skill reasonably to be expected in the circumstances, and no issue of statutory construction (or, for that matter, any other issue of law) is likely to arise. Nor is there any evidence that the outcome of the appeal would set a precedent of significance to other claimants.

[46] Accordingly, I agree with counsel for the respondents that there is no live controversy between the parties, that the appeal is moot, and that there are no considerations of public policy to justify the appeal proceeding.

[47] The general purpose of the Accident Insurance Act 1998 is discernible from its ss.2 and 7, and is summarised in the Title of the Act as:

“An Act to maintain a no fault, comprehensive, insurance-based scheme to rehabilitate and compensate in an equitable financially affordable manner those persons who suffer personal injury and to provide opportunities for the scheme to be managed and delivered in different ways.”

[48] This purpose is achieved by establishing the criteria which claimants must meet in order to qualify for “cover” under the Act, and so to qualify for the entitlements which flow from cover. There are various routes by which cover might be established, including “medical misadventure” (comprising medical error and medical mishap), and more generally “personal injury by accident”. However, the findings of the first respondent, or a Reviewer, of “accident” or “medical misadventure” are not ends in themselves. They are but steps in the process of determining whether or not a claimant has cover.

[49] Unlike s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992, the 1998 Act contained no provisions requiring the first respondent to report a case of medical misadventure to any other body, such as a doctor’s College.

[50] The appellant lodged two claims for cover in respect of the same incident. The first was for “personal injury by accident” and the second for “medical misadventure”. However, there could only be one claim for cover in respect of the one incident. Had the original claim for personal injury by accident been accepted at the outset, the appellant would not have been able to lodge a second claim, albeit on different grounds. That is because cover would have been accepted, and it was the only cover available in respect of the particular incident. It makes no difference that cover for personal injury by accident was originally declined and then accepted after a claim had been lodged for medical misadventure. There is only the one claim for cover relating to the one incident. As the claim has been upheld, there is nothing which the appellant can seek to review or appeal. Accordingly, this Court has no jurisdiction to entertain the appeal.

[51] In very detailed submissions, Ms de Jonge emphasised that the claim is for funeral expenses which have been approved but, as indicated above, she now seeks that claim be heard on the basis of alleged medical misadventure pursuant to an application filed in September 2002 and to be heard under the 2001 Act. She seemed to be submitting that SH should have cover for a personal injury caused by a gradual process of personal injury caused by medical misadventure. She put it that the effects of her daughter’s drug treatment gradually increased in severity the longer the treatment period continued, and that mental and physical injuries leading to her death were caused as drug dosages were altered and as the number of prescribed drugs was increased.

[52] Ms de Jonge then refers to counsel for the first respondent implying that the personal injuries sustained prior to SH’s death were independent of the “ultimate event” as he put it. Ms de Jonge submits that suicide attempts cannot be disassociated from the completed suicide and the prior injuries for which cover was provided were injuries sustained in three of six suicide attempts. Ms de Jonge’s general point seems to be that certain doctors failed to take remedial action to stop suicidal behaviour when it emerged in S as a result of her prescribed medication, and that no informed consent had been obtained from her, and that those doctors did not understand the effects and risks of the medication to the extent that they created medical error (she submits).

[53] Ms de Jonge then refers to the deceased having allowed sexual activity to occur at a time she was affected by prescription drugs and suffering from a drug induced mental condition when she would not have otherwise permitted such activity. Ms de Jonge seemed to be submitting that therefore the deceased must have cover for the mental injury suffered as a consequence, under s.21 of the 2001 Act within the description of an offence listed in its Schedule 3 and dealt with in the Crimes Act 1961, so that a sensitive claim has arisen. She submits that medical research shows that people who are prescribed psychoactive drugs are at an increased risk of sexual abuse and altered sexual behaviour because of the effects of those drugs and their chemical actions on the body, but that the deceased was not informed about those effects or risks. It is put that the deceased suffered mental injuries during the administration of drug treatment from the neuropsychiatric effects of the drugs and drug induced adverse sexual events. I did not understand this aspect to have been raised previously and it has not been dealt with on behalf of the first respondent or any of the second respondents. I doubt whether it is an issue which creates any further benefit to the deceased’s estate in this case but, because it has not been dealt with before me, I reserve leave to apply in that limited respect.

[54] Ms de Jonge then extensively submitted for the appellant that there is now only one live issue before this Court, namely, that of medical misadventure based on medical error, and that I should deal with that issue.

[55] Inter alia, Ms de Jonge has submitted that the focus of the Reviewer’s 30 December 2004 decision was whether the first respondent’s 19 July 2004 decision to decline cover for medical misadventure was correct. She puts it that relates to the medical misadventure claim from the appellant and not to that of personal injury by accident. Ms de Jonge submits that the appellant seeks a rehearing of the issues dealt with at review on the basis that the review application was valid and proceeded with jurisdiction. She submits that particular issues have not been finalised and that the appellant has not received individual justice. She submits that live issues are the drug induced adverse sexual events involving the deceased, and the chemical actions of the drug treatment to the deceased in triggering a craving or increased use of alcohol and/or other substances. She submits that these are issues of general public interest so that this Court should hear them. I have explained why I disagree.

[56] She also submits that the deceased’s reputation and mental well-being were harmed by the effects of her drugs treatment because they altered her behaviour and personality, and that she was also harmed by the opinions of her treating doctors. She wishes to use the appeal process to this Court as an inquiry into a drug treatment and its causative link to the deceased’s personal injuries and death. The appellant relies on medical error not medical mishap or personal injury by accident.

[57] The Reviewer found that the first respondent’s 19 July 2004 decision to decline cover for medical misadventure was correct. She covered the then available evidence comprehensively and part of her reasoning reads:

“The treatment provided to Miss [H] has been reviewed by three suitably qualified medical experts, acting independently. As a reviewer, I must, in accordance with the principles established by the Court, rely on this expert medical opinion, in determining whether there was a failure on the part of any or all of those medical practitioners to observe a standard of care and skill reasonably to be expected in the circumstances. My conclusion is that there is insufficient evidence to support the applicant’s complaint that the medical treatment provided to Miss [H] fell short of the requisite standard of care.

Having concluded that treatment was properly given in the circumstances, I need to address the question of whether that treatment caused personal injury ...”

And later:

“My conclusion is that there is no credible evidence that Miss [H]’s medication caused the severe personality dysfunction from which she suffered increasingly over a period of eight months, and nor is there any credible evidence of a causal link between the medication and her suicide.

I am satisfied, that the medical evidence establishes that medical treatment provided to Miss [H] did not fall short of the standard of care and skill reasonably to be expected in the circumstances. Furthermore, there is no cogent evidence to support the applicant’s claim that Miss [H]’s increasing mental illness and ultimate suicide were causally linked to her medication. This being the case, there is insufficient evidence to establish that the applicant’s claim meets the legislative criteria to be accepted for cover as a medical misadventure, and I confirm Acc’s decision to decline the claim.”

[58] I understand (and sympathise with) the feelings and stance of the deceased’s mother Mrs H. I can accept that the drugs/medication prescribed and used by the deceased may have been mind-bending in her case and may well have created or contributed to her state of mind to commit suicide. However, medical professionals can only do their dedicated best for a patient in terms of available medication, knowledge, and their assessment of that patient. There is no convincing evidence before me as to any medical error in this case. The Reviewer carefully analysed that aspect and concluded that medical misadventure had not been established.

[59] As explained above, there is no longer an issue between the appellant and first respondent about personal injury cover. There is nothing for me to determine within my jurisdiction regarding this case. Accordingly, this appeal is struck out; but leave to apply is reserved for one calendar month in terms of the limited concept referred to in paragraph 53 above, and with regard to costs.

_____________________________

Judge P F Barber

District Court Judge
Wellington

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