Treatment injury? ACC appeals against compensation award to teen born with spina bifida

AZ was born with spina bifida, and the court heard a 20-week scan failed to give her mother the option of aborting her. Photo / 123RF

ACC is challenging a compensation award for a young woman who successfully argued a missed diagnosis of her spina bifida when she was in utero meant it was a treatment injury.

Now in her late teens and only referred to as AZ, she argued the progression of the birth defect could have been prevented if her mother was informed of the condition at her 20-week scan while pregnant.

It was accepted by the High Court that AZ’s mother would have terminated the pregnancy if she had known of the girl’s condition.

Today, ACC has challenged the previous decision of Justice Gerard van Bohemen, who ruled the mother and daughter were victims of medical error and that the teen should receive ACC compensation, in the Court of the Appeal.

Lawyer David Laurenson KC, for ACC, said the decision was incorrect in applying the Accident Compensation Act.

“What it boils down to is that AZ could never have had a life without spina bifida,” Laurenson submitted.

Laurenson argued the Act could not be applied because the treatment, the 20-week scan, didn’t cause the injury, and the proposed treatment, a termination of AZ in utero, was not a medical treatment of AZ’s condition.

“It doesn’t in any way treat the spina bifida, it doesn’t treat the consequences of the spina bifida, it just ends the life.”

The mother of AZ found out she was pregnant in 2002, and by February 2003 had a 20-week anatomy ultrasound scan.

The scan showed the foetus had a lemon-shaped head, which should have prompted further scans and revealed the condition, the court heard. However, this did not happen and the pregnancy continued to term.

AZ now relies on a wheelchair and has a number of other disabilities and developmental challenges. She will need assistance from family or caregivers for the rest of her life.

Lawyer Philip Schmidt, on behalf of AZ, submitted the scan, described as a “detailed” examination of the foetus and the mother, was in fact treatment and his client’s spina bifida is a treatment injury.

Schmidt argued AZ’s mother was never given a chance to address the issues in utero and believes the Act can be simply interpreted.

“What would have happened if the treatment [the scan] was properly provided, a termination would have taken place and AZ would not have been born with spina bifida, it’s true she would not be born at all,” Schmidt said.

“Termination is an appropriate treatment for a foetus carrying significant abnormality.”

AZ wasn’t seeking compensation for being alive, but instead seeking cover for the condition she lives with as a result of treatment failure, Schmidt said.

The failure didn’t cause spina bifida, Schmidt said, but the scan allowed the development of the condition without treatment - in AZ’s case, her mother having an abortion.

Schmidt said providing cover would be a fair outcome, as AZ would be put in the same category as others who had suffered a treatment injury.

Schmidt submitted today, and in previous hearings relating to his client’s case, that if the mother should be compensated for the scan, so too should AZ.

AZ’s mother has been compensated by ACC for the continuation of the pregnancy.

Lawyer Harry Waalkens KC spoke on behalf of the Medical Protection Society, an intervener at today’s hearing, and said the case was an important one for the medical profession.

Waalkens said scans are seen as a public service in New Zealand’s medical profession and the case may prompt doctors to be wary of litigation in the future.

The decision of the court was reserved and will be released at a later date.