BETWEEN Appellant. ACCIDENT COMPENSATION CORPORATION Respondent. Randerson, Stevens and French JJ

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1 ORDER PROHIBITING PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT, HER CHILD OR ANY OF THE HEALTH PROFESSIONALS INVOLVED IN THE TREATMENT OF THE APPELLANT AND HER CHILD. IN THE COURT OF APPEAL OF NEW ZEALAND CA314/2011 [2013] NZCA 590 BETWEEN AND AND C Appellant ACCIDENT COMPENSATION CORPORATION Respondent MEDICAL PROTECTION SOCIETY LTD Intervener Hearing: 29 October 2013 Court: Counsel: Judgment: Randerson, Stevens and French JJ P G Schmidt for Appellant B A Corkill QC and J G Roberts for Respondent A H Waalkens QC and C L Garvey for Intervener 2 December 2013 at 3.00 pm JUDGMENT OF THE COURT A B The appeal is allowed. The question posed in the case stated, namely: Has the appellant suffered a personal injury under the Accident Compensation Act 2001? is answered provisionally in the affirmative. C V ACCIDENT COMPENSATION CORPORATION CA314/2011 [2013] NZCA 590 [2 December 2013]

2 C D E F The case is referred back to the District Court for the hearing of further evidence in accordance with the principles set out in this judgment. Order prohibiting publication of the names or identifying particulars of the appellant, her child or any of the health professionals involved in the treatment of the appellant and her child. The respondent is to pay the appellant costs for a standard appeal on a Band A basis and usual disbursements. There is no order for costs in favour of the intervener. G This case may be cited as Cumberland v Accident Compensation Corporation. REASONS OF THE COURT (Given by Stevens J) Table of Contents Para No Introduction [1] Background [7] High Court decision [13] Relevant legislation [17] The Allenby judgments [21] Discussion [32] Section 20(1)(b) [34] Section 20(1)(c) [39] Scope of appellant s claim [58] Referral back to the District Court? [61] Result and orders [65] Introduction [1] The issue in this appeal is whether a woman whose child is born with spina bifida, following a failure to detect that condition during an antenatal ultrasound scan, has suffered a personal injury under the Accident Compensation Act 2001 (the Act).

3 [2] The appellant, Ms C, 1 fell pregnant in September In January 2007, she underwent the usual 20 week scan under the direction of a sonographer and a radiologist. The appellant was advised that no anatomical abnormality was detected. The baby was born in May At birth the baby was found to have spina bifida. The appellant says that if this condition had been diagnosed at the scan, as it should have been, she would have sought to terminate the pregnancy. [3] The appellant applied to the Accident Compensation Corporation (the Corporation) for cover under the Act in September An initial decision to decline cover was reversed on review and cover was granted on 26 August The Corporation appealed to the District Court. Judge Beattie decided that the appellant was not entitled to cover under the Act. 2 Leave was granted to the appellant to appeal to the High Court. 3 [4] The High Court appeal addressed the following questions of law: [Is] the appellant entitled to cover for the continuation of her pregnancy past 20 weeks for the remainder of her pregnancy? [Has] the appellant suffered personal injury in the form of a developing lesion within herself which, had it been identified, could have been treated? [5] Faire J concluded that the answer to these questions was no. 4 However, the Judge granted leave to appeal to this Court by way of case stated, posing the following question: 5 Has the [appellant] suffered a personal injury under the Accident Compensation Act 2001? On 27 February 2013 White J made an order suppressing the names of the appellant and her child: C v Accident Compensation Corporation [2013] NZCA 36. There is no dispute that the names of the health professionals involved should also be suppressed. As the Medical Protection Society indemnifies the two health professionals who carried out and read the scan, this Court granted leave to the Medical Protection Society to intervene: C v Accident Compensation Corporation [2013] NZCA 34. Accident Compensation Corporation v [C] DC Auckland 145/2009, 27 August [C] v Accident Compensation Corporation DC Auckland 145/2010, 31 August Leave was also given on a third question, relating to a deemed decision under s 58 of the Act, but that question is of no relevance to this appeal. C v Accident Compensation Corporation HC Auckland CIV , 24 March 2011 [High Court judgment]. C v Accident Compensation Corporation HC Auckland CIV , 3 May 2011 and 23 May Leave to appeal was granted pursuant to s 163 of the Accident Compensation Act 2001.

4 [6] For the reasons given below, we conclude that the question must be provisionally answered in the affirmative. The provisional nature of our judgment arises from the need for further evidence on an aspect of causation. Background [7] The relevant background facts were set out in Judge Beattie s decision and repeated in the High Court judgment. 6 All parties have indicated their acceptance of this factual narrative: In or about September 2006, the [appellant] was diagnosed as being pregnant, that pregnancy being confirmed by tests carried out by her GP on 9 September The [appellant] engaged the services of a midwife to oversee her pregnancy. An ultrasound scan at 12 weeks was indicated as being normal. On 4 January 2007, the [appellant] underwent a 20-week ultrasound scan. That ultrasound scan was carried out under the oversight and direction of [a] Sonographer, and [a] Radiologist. In a written report dated 4 January 2007, [the scan provider] advised as follows: No anatomical abnormality detected. Size is consistent with dates. EDD above is confirmed. She has seen the baby and has a recording of the scan with her. The EDD was stated as being 24 May [The baby] was born on 21 May At birth [the baby] was found to have spina bifida, there being herniation of the spinal cord and membranes. She underwent remedial surgery on 22 May In a letter dated 23 May 2007, [the Chief Radiologist employed by the scan provider] issued a written apology to the [appellant] for their failure to diagnose the spina bifida from that 20-week scan. 6 High Court judgment at [3].

5 Subsequent independent specialist opinion would indicate that the signs were there to be seen in that scan but were simply overlooked. On 14 September 2007, the [appellant] made application to the Corporation for cover for a treatment injury said to be her continued pregnancy and of the fact that the incorrect advice from that 20-week scan deprived her of the opportunity of not continuing with that pregnancy. The Corporation issued its decision declining cover on 21 November 2007, it contending that the [appellant s] claim did not meet the criteria for a treatment injury. On 18 December 2007, the Corporation received an application for review of the decision declining cover, such application being made through the office of Mr Schmidt, Barrister and Solicitor. By decision dated 29 May 2008, the Corporation acknowledged that it had not made a primary decision on cover within the statutory timeframe of two months provided for in Section 57 of the Act, and that therefore it acknowledged that Ms [C] had a deemed decision of cover. By further decision, also dated 29 May 2008, the Corporation advised that it had revised the deemed cover decision issued on that date and that a fresh decision had been made to revise that decision by again declining to grant cover for her claim for a treatment injury. The [appellant] thereupon filed her applications for review in respect of those two decisions. At the review hearing, which took place on two dates, namely 7 July 2008 and concluding on 15 August 2008, the Reviewer had three applications for review to consider. Firstly, the original decision of 21 November 2007 to decline cover, secondly the deeming decision granting cover, and then the decision revising that decision and again declining cover, both dated 29 May In her decision dated 26 August 2008, the Reviewer declined jurisdiction to consider the first two review applications on the grounds that events had overtaken them, but that in respect of the Corporation's decision of 29 May 2008, to again decline cover for a treatment injury, the Reviewer elected to follow the High Court decision of Justice Mallon in the appeal of ACC v D, and held that Ms [C]'s pregnancy was a personal injury under the 2001 Act, and as such Ms [C] was entitled to cover for that continued pregnancy as a personal injury. The Corporation's decision of 29 May 2008 was therefore quashed and substituted by the review decision granting cover to Ms [C] for a treatment injury.

6 [8] In terms of the 20 week ultrasound scan carried out on the appellant, the undisputed background is as follows. Maternity services are generally provided free within New Zealand to all who are eligible for publicly funded healthcare. These services include access to a lead maternity carer and to screening tests if desired. Participation in screening is a matter of choice for the pregnant woman. [9] An obstetric ultrasound scan may be carried out at various times during pregnancy depending on the perceived clinical need, and information sought to be obtained. An anatomy scan in the second trimester is typically performed just prior to 20 weeks gestation. The information obtainable from the ultrasound includes the age of the foetus and confirmation of the estimated delivery date; the position of the placenta; the amount of fluid around the foetus; and observation of the key foetal structures including for the purpose of diagnosing abnormalities. According to counsel, the scan procedure is usually timed at between weeks to preserve the availability of a termination. [10] The medical reasons for a pregnant woman seeking such a scan are explained in a Royal Australian and New Zealand College of Radiologists publication Inside Radiology cited by Mr Waalkens QC for the intervener. 7 This scan is part of the routine care during pregnancy. Of importance is the fact that its purpose is to identify the presence of a major structural abnormality. If abnormalities are detected the relevant medical professionals will talk to the woman s doctor about the possible reasons for the abnormalities. The publication explains that: this will help to guide the discussion between you and your doctor about any further investigation or treatment that might be needed. The publication also warns that it is important that the woman discuss the results with the referring doctor so that their implications can be understood by her. [11] To this narrative we add that a claim was filed with the Corporation on behalf of the baby in respect of the physical injuries said to have arisen from the spina bifida lesion that developed at around five weeks while the baby was in utero. The Corporation granted cover for an intracranial haemorrhage that occurred at the time 7 Monica Pahuja week screening pregnancy ultrasound Inside Radiology <www.insideradiology.com.au>.

7 of birth. That decision was not in issue before us. A further claim for cover in respect of myelomeningocele, hydrocephalus and Chiari 2 malformation (all related to the spina bifida condition) was declined by the Corporation. An application for review was dismissed by a Reviewer. We were told that the baby s claim is currently under appeal to the District Court. [12] The legal context to this appeal is informed by the following chronology of developments: On 22 December 2008 this Court reversed the decision of Mallon J in Accident Compensation Corporation v D 8 and concluded pregnancy was not a personal injury for the purposes of the Act. 9 On 27 August 2009 Judge Beattie issued his judgment in relation to the appellant s claim concluding that, following Accident Compensation Corporation v D, the appellant was not entitled to cover. 10 On 24 March 2011 Faire J delivered his judgment (summarised below). 11 On 9 May 2012 the Supreme Court decision in Allenby v H was delivered. 12 This decision held that pregnancy arising after a failed sterilisation was personal injury under the Act. High Court decision [13] The advent of the decision of the Supreme Court in Allenby has expanded the arguments available to the appellant. The judgments in Allenby were, of course, not available to Faire J. For that reason we need only make brief reference to the High Court judgment Accident Compensation Corporation v D [2007] NZAR 679 (HC). Accident Compensation Corporation v D [2008] NZCA 576. Accident Compensation Corporation v [C], above n 2. High Court judgment, above n 4. Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.

8 [14] The appellant first argued that the relevant personal injury was the continuation of the pregnancy after the date of the misdiagnosis. However Faire J, as he was bound to do, applied this Court s decision in Accident Compensation Corporation v D 13 to the effect that pregnancy was not a personal injury within the meaning of the Act. Thus the first argument could not succeed. [15] The appellant advanced a second argument to the effect that the relevant personal injury was the continued worsening of the lesion on the foetus after the date of the misdiagnosis. Faire J held that there was an arguable foundation for the view that the development of the lesion constituted a relevant personal injury. However the Judge found that this injury could not properly be said to be an injury suffered by the appellant. 14 [16] For these reasons, Faire J answered both questions of law posed in the negative. Relevant legislation [17] We set out the salient provisions of the legislation as it stood at the relevant time. Section 20 of the Act sets out the circumstances in which a person has cover for a personal injury: 20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts) (1) A person has cover for a personal injury if (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) (c) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and the personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to Accident Compensation Corporation v D, above n 9. High Court judgment at [70], applying dicta of some of the Judges of this Court in Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA), notably Elias CJ at [21] and Blanchard and Glazebrook JJ at [70].

9 (a) (b) personal injury caused by an accident to the person: personal injury that is treatment injury suffered by the person: (f) (g) personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person: personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover: [18] Personal injury is defined in s 26. The relevant subsections are: 26 Personal injury (1) Personal injury means (b) physical injuries suffered by a person, including, for example, a strain or a sprain (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). [19] Treatment injury is defined in s 32: 32 Treatment injury (1) Treatment injury means personal injury that is (a) suffered by a person (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; and (b) caused by treatment; and

10 (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including (i) (ii) the person's underlying health condition at the time of the treatment; and the clinical knowledge at the time of the treatment. [20] Treatment is relevantly defined in s 33: 33 Treatment (1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes (a) (b) (c) (d) the giving of treatment: a diagnosis of a person s medical condition: a decision on the treatment to be provided (including a decision not to provide treatment): a failure to provide treatment, or to provide treatment in a timely manner: The Allenby judgments [21] Allenby concerned a woman who became pregnant following a failed sterilisation. The case was decided under the Injury Prevention, Rehabilitation and Compensation Act 2001 as it stood in 2004, prior to a series of amendments in None of those amendments affect the applicability of Allenby to the present appeal, although the relevant terminology changed in 2005 from medical misadventure to treatment injury. [22] The judgment of Blanchard, McGrath and William Young JJ (written by Blanchard J) first considered the history of the accident compensation scheme and the complex drafting of the provisions in the 2001 Act. Blanchard J recorded that 15 The Act is still in force but had its name changed to the Accident Compensation Act 2001 as from 3 March 2010.

11 two conclusions could immediately be drawn. 16 First, the expression personal injury is used in an expansive way. Second, it was unlikely that Parliament, having expanded the scheme in 1974 to give cover for pregnancy resulting from rape, would have sought to remove that cover in 1992 without directly addressing the subject. The judgment discussed whether pregnancy caused by rape could be considered to be a personal injury caused by accident to the person within the meaning of s 20(2)(a). Pregnancy caused by rape could fall within this definition because the conception of a child was a physical consequence of the rape and should not be differentiated, for the purpose of cover under the scheme, from any other consequence. It would be quite extraordinary if there were to be coverage for a rape victim for any physical harm suffered during the assault and for any mental injury resulting, but not for impregnation. 17 [23] Reasoning by analogy, Blanchard J considered that since... an impregnation resulting from rape is, under s 20(2)(a), a personal injury, it must follow that an impregnation resulting from medical misadventure in the form of a failed sterilisation is also a personal injury. 18 That was because a physical consequence (here, the pregnancy) which constitutes a personal injury where accident is involved will equally be a personal injury where there is medical misadventure. Because cover was available under s 20(2)(b) (personal injury caused by medical misadventure suffered by the person), it was not necessary to consider whether there was also cover under s 20(2)(f) (personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person). 19 [24] Blanchard J offered some comment on the distinction between s 20(2)(b) and s 20(2)(f). In the first situation, there must be a medical misadventure, that is, a medical error; and it must give rise to a physical injury. An example is where the claimant patient has had his or her wrong (good) leg amputated. In the second situation, the personal injury must both (a) be caused by medical misadventure and Allenby v H, above n 12, at [68]. At [72] [74]. At [76]. Ibid.

12 (b) take the form of a gradual process, disease or infection. The example provided was gangrene consequent upon the amputation of the wrong leg. 20 [25] Expanding on the status of pregnancy as personal injury, Blanchard J concluded: [80] If the purpose of the medical treatment is to prevent pregnancy from occurring and by reason of medical error that purpose is not achieved, it does not seem to us that, just because the pregnancy then occurs as a biological process, there should be no cover for the consequences. The development of the fetus following impregnation occurs because of the medical error, just as in the case of the undetected tumour. It causes significant physical changes to the woman s anatomy, which of course occur naturally but still cause discomfort and, at least ultimately, pain and suffering. If a disease or infection consequential on medical misadventure can be classified by the statute as a personal injury, it does not involve any greater stretching of language to similarly include a pregnancy which has the same cause. We should add that it can make no difference that the direct cause of the pregnancy is an act of sexual intercourse which occurs separately from the negligently performed operation. The pregnancy is still caused by the surgeon s negligence, and would not have happened without that negligence. (Emphasis added). [26] Tipping J agreed with the analysis of the majority, reiterating that the changes which occur to a woman s body as a result of pregnancy come within the compass of physical injuries in the context of the legislation in issue. That was because pregnancy is apt to cause a substantial degree of physical discomfort and, quite often, substantial pain and suffering. 21 [27] However, Tipping J considered this did not mean all unwanted pregnancies were covered by the Act. Rather, in order to attract cover the pregnancy must be caused either by medical misadventure or by rape. Like Blanchard J, he considered that sexual connection could only be considered to be an accident under the meaning of the Act in circumstances where the woman had not given true consent: [92] For there to be an accident under this definition, there must be an application of external force to the body of the person said to have suffered the accident. In the case of rape, the relevant application of force is by the rapist s penis to the victim s genitalia. That force is applied without the true consent of the victim. In a case where there is consent, but it is vitiated by At [64] [65]. At [88].

13 some factor, and indeed in some other cases, the amount of force involved may well be exactly the same or virtually the same as when the sexual connection is truly consensual. Hence I do not consider it possible to say that in the case of truly consensual sexual connection no external force is involved. That is not an appropriate basis upon which to distinguish cases of rape from those involving ordinary consensual intercourse. The appropriate basis for the distinction between the two lies in the absence or presence of true consent. If there is no true consent the force applied amounts to an accident. If there is true consent the force applied does not amount to an accident. [28] The Chief Justice also held that pregnancy following failed sterilisation treatment constituted a personal injury through medical misadventure. Elaborating on the question of whether pregnancy could constitute a personal injury, she held: 22 Treatment includes lack of treatment, so that physical consequences which could have been prevented may be injury for the purposes of the definition. If a sprain or strain amounts to personal injury, impregnation (with its profound impact on the physiology of the woman) is properly seen as physical injury for the purposes of the definition of personal injury adopted by the legislation. [29] The Chief Justice adopted a nuanced approach to question of how the injuries suffered fell within the categories out in s 20(2) of the Act: [23] There is also, I think cover for personal injuries due to the gradual process of pregnancy through s 20(2)(f). In that provision, the personal injury which is the subject of cover is caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person. Impregnation or conception strikes me as exactly such personal injury. It has immediate physical impact but it also constitutes a process which itself has consequential physical impact properly characterised, for the reasons discussed in [18] [19], as physical injuries for the purposes of the definition of personal injury. [24] While there is some awkwardness in the references both to the personal injury for which cover is provided by s 20(2)(f) and (g) and the causative gradual process... that is personal injury caused by medical misadventure suffered by the person or the causative gradual process... consequential on personal injury for which the person has cover, the meaning is clearly intended to be expansive in relation to the consequences of the original personal injury, whether caused by medical misadventure or in some other way that is covered under the Act. If linked by gradual process or disease or infection to the original personal injury, subsequent personal injury is covered. 22 At [18] (footnotes omitted).

14 In addition, gradual process was not a term confined to the progress of intrinsically harmful conditions. Instead, the phrase should be given a general meaning. 23 [30] The Chief Justice noted that she preferred not to enter into any discussion about other circumstances in which impregnation and the process of pregnancy may be covered under the Act. In particular, she expressed doubt as to whether the concept of consent was helpful in these circumstances. 24 [31] The ratio decidendi drawn from the majority judgments in Allenby can be broadly summarised as follows: Pregnancy following rape Cover is available where there is a personal injury caused by an accident to the person (s 20(2)(a)) Relevant accident = non-consensual sex Relevant personal injury = impregnation/pregnancy Pregnancy following failed sterilisation Cover is available where there is a personal injury that is medical misadventure/treatment injury suffered by the person (s 20(2)(b)) Relevant medical misadventure / treatment injury = failed sterilisation Relevant personal injury = impregnation/pregnancy Discussion [32] In our application of the statutory provisions to this case we intend to follow the methodology set out in the judgment of Blanchard J, a course urged on us by Mr Corkill QC for the Corporation. A claimant for cover must meet all three of the requirements in s 20(1) of the Act: At [27] [28]. At [30].

15 s 20(1)(a): s 20(1)(b): s 20(1)(c): he or she suffered personal injury in New Zealand on or after 1 April the personal injury is any of the kinds of injuries described in s 26(1)(a), (b), (c) or (e). the personal injury is described in any of the paragraphs in s 20(2). [33] As to the first requirement, there is no dispute that, if the appellant suffered personal injury, this occurred in New Zealand on or after 1 April The second and third requirements are both at issue. As to the second, the appellant relies on s 26(1)(b) physical injury suffered by a person. As to the third, the appellant relies on s 20(2)(b) personal injury that is treatment injury suffered by her. Section 20(1)(b) [34] As noted, the appellant relies on personal injury of the kind described in s 26(1)(b), that is physical injuries suffered by a person, including, for example, a strain or a sprain. The appellant has given unchallenged evidence that, had she been given a correct diagnosis following the 20 week scan, she would have chosen to seek an abortion. The question is therefore whether continuation of the pregnancy following the incorrect diagnosis and the consequential inability of the mother to implement her choice to terminate the pregnancy can constitute a physical injury suffered by the mother for the purpose of the definition of personal injury. 25 [35] We are satisfied that the answer is yes. In so concluding we agree with Blanchard J in Allenby that the expression personal injury is used in an expansive way. 26 By analogy with the impregnation of the victim as a physical consequence of rape or of a failed sterilisation treatment, we consider that the continued pregnancy of the appellant following a misdiagnosis in the 20 week scan is capable of being an injury suffered by the appellant for the purposes of the Act. It is true that the appellant fell pregnant by natural process prior to the 20 week scan. But the analytical focus for the purposes of cover must be on the physical consequences to the appellant in the period post the misdiagnosis We will later discuss the implications for the claim of the making of this choice. Allenby v H, above n 12, at [68].

16 [36] What has occurred to the appellant following the errors by the health professionals is ongoing development of the foetus. This causes significant and ongoing physical changes to the anatomy of the appellant which, whilst occurring naturally, cause discomfort and ultimately pain and suffering. Like Blanchard J 27 we see merit in the comparison with the case of an undetected tumour. [37] The same outcome is reached applying the approach of the Chief Justice in Allenby to physical injury. She too accepted that the statutory provisions should be expansively viewed. 28 In terms of the definition in s 26(1)(b), and using a sprain or strain as a comparator, we consider that the profound impact from the pregnancy on the physiology of the appellant post the misdiagnosis falls within the definition of physical injuries. 29 Therefore we cannot accept Mr Corkill s submission that the continuation of an existing pregnancy cannot constitute a personal injury. [38] We do accept that the present case is in a different context to that discussed in Allenby. However, we consider that the reasoning applicable in the situation of impregnation following rape or failed sterilisation has equal application to the physical consequences (namely the ongoing development of the foetus inside the mother) following a misdiagnosis. We see no convincing reason based on the text and purpose of the statute for treating the ongoing physiological changes that occurred to the mother after 20 weeks as being outside the scope of personal injury as defined in s 26 of the Act. The purpose provisions in s 3, referring to minimising the impact of injury and establishing entitlements of treatment, rehabilitation and impairment, support our conclusion. Section 20(1)(c) [39] Section 20(1)(c) provides that the personal injury must be described in any of the paragraphs in subsection (2). We deal first with s 20(2)(b): personal injury that is treatment injury suffered by the person. We have already addressed the question of personal injury under the heading of injury type, so the focus now is on whether the appellant s injuries constitute a treatment injury At [80]. At [18]. Subject of course to the question of causation which we address below.

17 [40] The term treatment injury is defined in s 32(1) quoted in full at [19] above. A treatment injury is a personal injury that is: (a) (b) (c) suffered by a person seeking treatment from one or more registered health professionals; and personal injury caused by treatment; and not a necessary part, or ordinary consequence, of the treatment. [41] There is no doubt that the first and third elements are satisfied on the present facts. We therefore move to consider the second element, in two stages. First, was there treatment for the purposes of s 32(1) of the Act? Second, was the injury caused by that treatment? (a) Treatment [42] Section 33(1) of the Act provides a non-exhaustive definition of treatment for the purposes of determining whether a treatment injury has occurred or when such an injury occurred. The full subsection is quoted at [20] above. The possibilities for present purposes include: a diagnosis of a person s medical condition: s 33(1)(b); a decision on the treatment to be provided (including a decision not to provide treatment): s 33(1)(c); and a failure to provide treatment, or to provide treatment in a timely manner: s 33(1)(d). [43] We are satisfied that the appellant s case falls within each of the subparagraphs in s 33(1)(b), (c) and (d) of the Act. As to (b), this was a diagnosis of the medical condition of a person (in this case the mother). As to (c), since no abnormalities were detected, there was no discussion or follow-up with the mother to provide further treatment in the form of scans or tests. As to (d), treatment was not provided in a timely manner by further scans and tests. Contrary to the approach in

18 the Inside Radiology publication, 30 there was no opportunity for further investigation or treatment that would have ordinarily followed, had the presence of the spina bifida lesion been detected in the scanning process. (b) Caused by treatment [44] This leads to consideration of the final requirement: was the personal injury caused by the treatment? The misdiagnosis here involved the failure to diagnose the spina bifida lesion in the baby. This in turn meant a failure to provide further scans and advice to the mother to obtain further medical advice and treatment, and the mother s pregnancy continued. The appellant contends that the misdiagnosis resulted in a continuation of the pregnancy because the mother had no opportunity to seek a termination as she would have if the correct diagnosis had been made and she had been informed of the child s condition. [45] This raises the question whether the concept of loss of chance may be sufficient to meet the causation requirement in s 32(1)(b). Is the loss of a chance to have a termination sufficient to amount to a treatment injury being suffered by a woman in terms of s 32(1)? Or is it necessary to show on the balance of probabilities that the termination would have taken place? If it is the former, then it is not necessary to show that a termination would, on the balance of probabilities, have actually taken place. [46] We consider that the latter approach should be applied. This Court in Accident Compensation Corporation v Ambros considered the issue of causation. 31 The case concerned a woman who died from a heart attack secondary to a condition known as spontaneous coronary artery dissection shortly after giving birth. Ms Ambros husband subsequently sought cover based on medical error, arguing that her death had been caused by failures to diagnose and treat her condition. [47] The judgment of the Court, given by Glazebrook J, held that the appeal was governed by Atkinson v Accident Rehabilitation Compensation and Insurance Referred to at [10] above. Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.

19 Corporation. 32 In that case, the Court of Appeal found that the claimant was required to prove (on the balance of probabilities) the personal injury resulted from medical error. A lesser test of increased risk or a reverse onus test was found to be inconsistent with the language and policy of the Act. The Court of Appeal in Ambros saw no reason to depart from its previous decision. If anything, the decision of the legislature to amend the causation requirement in relation to medical misadventure from resulting from to caused by (a change which made the position even clearer ) indicated acceptance of the Atkinson position. [48] In Ambros Glazebrook J also noted that dissatisfaction with the traditional test of causation had inspired a number of proposed modifications to the but for stage of the inquiry. 33 One example was the development of the loss of chance principle. The Judge observed that the loss of chance analysis seems to us to be incompatible with the accident compensation regime. 34 Accordingly the Court concluded: 35 In terms of the causation principles set out in Atkinson, any risk must be realised in the occurrence of a personal injury and the personal injury must be proved to have been caused by the risk factor involved. In keeping with this principle, if the omission to treat causes an identifiable added injury, cover would be available for that injury. [49] The Court in Ambros also considered questions relating to evidential onus. Glazebrook J noted that while Atkinson excluded any possibility of a shift in the legal burden, it did not rule out a shift of the tactical burden. 36 This has since been applied in the High Court. 37 In Sam v Accident Compensation Corporation, for example, Mallon J explained that in assessing whether [a claimant has] proved causation on the evidence, the Court can take into account the absence of counter evidence which ought to have been in [the Corporation s] power to produce Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR 374 (CA). At [26]. At [46]. Ibid. At [63]. Accident Compensation Corporation v McEnteer HC Wellington CIV , 1 December 2008; Sam v Accident Compensation Corporation HC Wellington CIV , 4 November 2009; and Accident Compensation Corporation v Stanley [2013] NZHC At [4].

20 [50] If the traditional or standard approach to causation is applied to cases of failure to diagnose resulting in personal injury, the relevant question is: if the diagnosis had been properly made, and proper treatment had followed, was the patient more likely than not to have recovered? If the answer is yes, it can be said that the misdiagnosis caused the resulting injury. [51] As to causation, Mr Corkill submits that on the medical evidence before the Court, it cannot be assumed that it would have been open to the appellant to seek a termination. The relevant scan was provided at the 20 week point. Under s 187A(3) of the Crimes Act 1961, a termination cannot be provided after 20 weeks gestation unless: the person doing the act believes that the miscarriage is necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health. [52] The Corporation contends that, on the basis of the medical evidence before the Court, it cannot be assumed that this high threshold could have been satisfied. Mr Corkill notes that Dr Tony Baird, a consultant obstetrician and gynaecologist, provided a report suggesting that there could have been difficulty creating a legal case for abortion. [53] Mr Corkill also relies on the contents of a report by Dr Thorsten V Stanley, a consultant paediatrician, to the Corporation in December Two particular passages are cited: Should the myelomeningocele [have] been recognised in [the baby] at that relatively early scan (20 weeks) [the baby s] mother s GP indicates that she is uncertain that [the baby s] mother [the appellant] would have elected to terminate the pregnancy. She notes that [the appellant] [had] twice declined screening for Down Syndrome from which I presume she deduces that [the appellant] would probably not have proceeded to terminate the pregnancy even if a diagnosis of myelomeningocele had been made at that stage. Information regarding this from [the appellant] herself is missing from the notes. Furthermore if my advice had been sought in this pregnancy the low level of the lesion and the presence of active leg movements would have led me to counsel the family to continue the pregnancy as in this setting the quality of life for the infant would be expected to be good to excellent.

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