The applicant became tetraplegic after developing the rare illness.
The applicant became tetraplegic after developing the rare illness.
A Christchurch teenager who became a tetraplegic due to a rare disorder - which may have been exacerbated by a misdiagnosis - has been granted leave to appeal a court decision that ACC doesn’t have to fund his treatment.
The then-15-year-old was in the Nelson area on a family holiday in 2017 when he fell ill with Guillain-Barré syndrome, a disorder of the nervous system where the body’s immune system attacks its own tissues.
Most cases require hospital treatment but make a full recovery. Some are a medical emergency and can be fatal.
The teen had been mildly unwell for several days, until he started to experience difficulty walking and had arm weakness, even collapsing and needing help to get back up while walking the dog, court documents said.
His mother called an after-hours medical centre and, after a lengthy discussion with a nurse, was given incorrect medical advice, meaning no immediate steps were taken for him to have a further medical assessment.
“[He] continues to suffer from tetraplegia and requires assistance in all areas of his life,” the documents said.
He applied to ACC to received funding for his treatment, arguing the initial misdiagnosis amounted to a treatment injury as the delay may have contributed to the severity of his symptoms. ACC declined the application on the basis the treatment delay did not cause the illness or increase its severity.
He then appealed to the District Court, then the Wellington High Court, which dismissed his appeal and declined leave to appeal to the Court of Appeal.
But the applicant then asked the Court of Appeal for special leave to appeal - something which can be granted if the court is satisfied there is a question of law capable of serious argument in a case that involves some leave of interest, and that is of sufficient importance to outweigh the cost and delay of a further appeal.
He argued in treatment injury cases a generous approach needed to be given to determining causation when the opportunity to determine the medical outcome was lost by the actions of the treating medical professionals.
He also said the evidence given by specialists supporting his claim should be given more weight due to the lack of research on delayed medical treatment.
Evidence before the court on appeal includes information from infectious disease specialist Dr Brian Dwyer, who said the applicant had a “more acute” kind of GBS with rapid symptom onset, of such severity that the patient could be well in the morning but dead by the evening.
“The applicant’s GBS may have been fatal if he had not managed to text his mother at 3am to seek help,” The Court of Appeal ruling said.
“Earlier treatment ‘may have had an influence on duration of disability or resumption of mobility or degree of independence’. However, it was ‘not possible to confidently state’ that it was ‘more likely’ because ‘[t]he data is just not there’.”
Another doctor said there was no evidence earlier treatment would have impacted the severity of the symptoms, while a third doctor said “every hour, every day is important” for a “better neurological outcome”.
The Court of Appeal said there was a question of law as to whether the previous courts had misinterpreted the legal test for causation on the evidence they had.
“We consider it is in the interests of justice to grant leave, despite the desirability of finality, because of the importance of the issue for the applicant,” the ruling said.
The question for the appeal will be whether the High Court misdirected itself on how to apply relevant case law, by “misapplying the relevant factors or overlooking relevant factors in assessing whether the claimant had proved on the balance of probabilities that the delay in treatment caused the claimant personal injury additional to the injuries he would otherwise have suffered because of his GBS”.
The full appeal will be heard at a later date.
What are the symptoms of Guillain-Barré syndrome?
• Numbness or tingling in your hands and feet and sometimes around the mouth and lips
• Weakness of the muscle in your legs, arms and the sides of your face
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
