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14 August 2012
The Supreme Court has held that a woman who became pregnant following a failed sterilisation had suffered a "personal injury" caused by medical misadventure, for which she was entitled to cover under the state compensation scheme. As a result, the woman could not sue the medical professional who was responsible. The decision is a reversal of the Court of Appeal decision in Accident Compensation Corporation v D(1) (for further details please see "Court of Appeal rules pregnancy is not personal injury").
New Zealand has a regime for state compensation for personal injuries suffered as a result of an accident or medical misadventure. The regime bars most forms of personal injury litigation and provides state compensation for those who suffer a "personal injury", irrespective of whether the injury occurs at work, in a traffic accident, at home or elsewhere and irrespective of whether it was the fault of the injured person or another party. A person who suffers a personal injury cannot issue civil proceedings, but instead must file a claim with Accident Compensation Corporation (ACC).
If coverage exists with ACC, no civil proceedings for compensation can be issued. Generally, only claims for exemplary damages can be pursued, as they are not compensatory in nature. However, claims for some forms of medical misadventure may be brought where there are gaps in the extent of the statutory coverage.
In 2004 the respondent, H, had a sterilisation operation. The operation failed, as a clip was incorrectly attached to one of her fallopian tubes. She subsequently became pregnant and gave birth to a child by caesarian section in 2005.
She brought proceedings in the High Court claiming damages from the surgeon and his employer, the District Health Board. She could bring such a claim only if there were no coverage under the accident compensation regime. In an earlier decision, the Court of Appeal had held that there was no coverage in similar circumstances. The High Court in the present case removed the question of whether there was coverage for "personal injury caused by medical misadventure" directly to the Court of Appeal. The Court of Appeal delivered a brief judgment following its earlier decision. The surgeon was granted leave to appeal to the Supreme Court. ACC opposed the appeal and argued that there was no coverage. H agreed to abide by the decision of the court.
The Injury Prevention, Rehabilitation and Compensation Act 2001(2) provides coverage for certain personal injuries. 'Personal injury' is defined in Sections 26(1)(a) to (c) and (e) of the act as:
The definition excludes injuries caused by a gradual process, disease or infection, unless it is the kind of injury described in Sections 20(2)(e) to (h). The act provides coverage only if the personal injury is suffered in New Zealand, is of a kind described in Sections 26(1)(a) to (c) or (e) and is one of the kinds of injury listed in Section 20(2), which includes:
'Accident' is defined in Section 25 as an event or series of events involving the application of force external to the human body. 'Medical misadventure' is defined in Section 26 as a physical injury that is suffered by a person seeking or receiving medical treatment and is caused by medical error (ie, the failure to achieve a standard of care reasonably to be expected) or medical mishap (ie, a rare and severe adverse reaction to treatment that was given properly).
The five Supreme Court justices held unanimously that coverage was available under the accident compensation regime for pregnancy suffered as a result of a failed sterilisation. However, there was some disagreement over the statutory basis for the coverage and three separate judgments were delivered as a result.
The majority held that the expression 'personal injury' in the statute was used in an expansive way. It held that pregnancy was a physical injury and that impregnation resulting from rape would be a personal injury caused by accident, as it has always been accepted that 'accident' includes a deliberate act by the other person which causes the injury to the person that seeks coverage; therefore, the majority held that it must follow that impregnation resulting from medical misadventure in the form of a failed sterilisation is also a personal injury that would be covered. The majority held that coverage was provided under Section 20(2)(b) for personal injury caused by medical misadventure. The fact that pregnancy is a natural process did not prevent it from being a physical injury.
The majority referred to the overall spirit of the legislation as providing universal coverage for accidents and the consequences of medical misadventure. They were reluctant to reach a conclusion that would lead to a gap in the coverage provided under the act which would require people to bring civil suits in order to receive compensation and require practitioners to obtain additional insurance coverage or else decline to perform sterlisations owing to the potential for civil liability. The majority noted that unintended pregnancy resulting from consensual sexual intercourse (not following a failed sterilisation) would not have coverage, as it would not involve any medical misadventure or 'accident'.
Justice Tipping wrote a separate judgment in which he concurred with the majority that there was coverage for personal injury caused by medical misadventure under Section 20(2)(b). He wrote additional commentary on why unwanted pregnancies resulting only from rape and failed medical sterilisation would have coverage, rather than all unwanted pregnancies from failed contraception. He explained that, in order for there to be coverage for an unwanted pregnancy resulting from rape, it must be a personal injury caused by an 'accident', which is defined as the application of force external to the human body. He held that, in this context, the statutory meaning of 'accident' must be adjusted to exclude the application of force involved in consensual sexual intercourse (which may be no different from that applied in a rape).
In a separate judgment, the chief justice agreed with the other judges that H had suffered a personal injury caused by medical misadventure when she became pregnant following a failed sterilisation. She noted that pregnancy could be considered a 'physical injury' as it had a much more profound effect on the human body than the statutory examples of a sprain or strain. The chief justice disagreed with the majority on the basis for coverage under Section 20(2). She held that pregnancy caused by medical misadventure had coverage under Section 20(2)(b) and that the consequent physical impact of pregnancy had coverage under Section 20(2)(g). The chief justice chose not to join in the comments made by the majority or in the Tipping judgment about other instances in which pregnancy would be covered, noting that consent did not appear to be a useful concept.
Although it does seem unusual to describe pregnancy, which is essentially a natural process, as a physical injury, it is necessary in order for pregnancy to be covered by the state compensation scheme in any circumstances (including following rape). ACC raised the argument that, if coverage were permitted in this case, there would be a 'floodgates' issue of claims for coverage for unwanted pregnancies that do not involve medical misadventure or criminal offending. Two of the judgments attempted to address this argument by limiting the application of the definition of 'accident'. However, the justices did not consider the potential for claims based on medical misadventure for unwanted pregnancies suffered as a result of failed contraception prescribed by medical practitioners, as in some circumstances this may fall within the definitions of 'medical error' (eg, if a prescription error is made) or 'medical mishap' (eg, if the patient has a rare and severe adverse reaction). It remains to be seen whether any claims for coverage will be made that involve other types of unwanted pregnancy and, if so, how they would be dealt with, particularly in light of the 2005 amendments to the legislative scheme that were not considered by the Supreme Court in this case. These amendments altered the definition of 'medical misadventure', replacing it with the term 'treatment injury'.
For further information on this topic please contact Chris Browne or Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email (firstname.lastname@example.org or email@example.com).
(2) This act was renamed the Accident Compensation Act 2001 in 2005 and several of the key provisions were amended. This decision concerned the legislative scheme as it stood prior to these amendments.
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