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In a recent decision the High Court has ordered a rehearing of a District Court decision regarding the circumstances of a child’s birth which resulted in him suffering several disabilities and subsequently making a claim for medical misadventure.

Alessio Di Giandomenico was born in August 1999 in Tauranga Hospital. The midwife recognised that Alessio was in a ‘flat and floppy’ state and was not breathing, so attempted to stimulate him by using a warm towel and placing an oxygen catheter under his nose. Following the arrival of a second midwife, Alessio was transferred to a resuscitation room and a paediatrician was summoned.

Meanwhile, the second midwife attempted to resuscitate Alessio by using an oxygen bag and valve mask. The District Court judge found that there was a delay of about two minutes until Alessio was fitted with the oxygen bag. When the on-call paediatrician arrived he intubated Alessio. The Judge found there a delay of approximately five minutes until intubation. It took 25 minutes of resuscitation until Alessio began to breathe independently. He was then admitted to the Special Care Baby Unit at Starship Children’s Hospital.

Alessio lives with cerebral palsy and spastic quadriplegia, a condition which affects the entire body, and requires significant assistance with day-to-day life.

Claim for ACC cover

Alessio’s parents lodged a claim with the Accident Compensation Corporation (ACC) on his behalf in October 2000 for the physical injuries he suffered at the time of his birth.

As the claim was made in 2000, it was covered by the Accident Insurance Act 1998 (the Act). Broadly speaking, ACC legislation intends to provide compensation and subsidised rehabilitation to those who have suffered an accidental injury.

In order for Alessio to receive compensation under the Act for the injuries at the time of his birth, it needed to be established that his injuries were caused by a ‘medical misadventure’. The concept of medical misadventure included ‘medical error’ and ‘medical mishap’. Medical error under the Act was the failure of a registered health care professional to observe a standard of care and skill reasonably to be expected in the circumstances. Medical mishap occurred where the treatment is given properly, but a severe, rare, and adverse consequence is suffered. Neither of these terms are used under the current legislation.

In June 2001, ACC declined to grant cover to Alessio on the grounds that his injuries were not caused by medical error. ACC did not consider whether a medical mishap had occurred. Alessio’s parents sought a review of ACC’s decision. This review was dismissed in May 2003.

Appeal to the District Court

Alessio’s parents appealed the review decision to the District Court. The District Court held the central issue was whether the acts or omissions of the midwives at the time of Alessio’s birth caused or contributed to a lack of oxygen and blood to the brain which lead to Alessio’s cerebral palsy. The District Court held there was not sufficient evidence to establish Alessio’s injuries were caused by medical error. The Court also noted that although ACC had not considered whether Alessio’s injuries were caused by medical mishap, there was insufficient evidence to establish the requisite level of causation and rarity of outcome.

Appeal to the High Court

The District Court’s decision was appealed to the High Court. The High Court referred to a Court of Appeal decision (Accident Compensation Corporation v Ambros [2008] NZLR 340) which had been released since the District Court decision. In Ambros the Court of Appeal considered causation under the Act and took a less restrictive approach. The Court of Appeal held that the only time a Judge is not able to draw a robust inference in relation to causation is where medical science says there is no possible connection between the events and the claimant’s physical injury. As a consequence, in some cases causation could be inferred where the medical evidence recognised the possibility of a connection between the treatment and the injuries.

Ultimately, the High Court determined that the evidence in Alessio’s case fell well short of establishing any medical error. On the issue of medical mishap, the High Court held the District Court had taken a more restrictive approach to the issue of causation than the Court of Appeal had approved in Ambros. Given there was evidence of a possible connection between Alessio’s treatment and his injuries, the High Court remitted the case back to the District Court.

The District Court will now have to consider whether Alessio’s physical injuries were the consequence of medical misadventure through medical mishap.

This article was authored by Megan Neill, Solicitor in our Wellington office.



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