Bay man wins compo eight years after heart surgery harmed his brain

By Martin Johnston

It's been an eight-year battle but Graeme Thompson has finally won the right to ACC compensation after suffering a brain injury following open heart surgery.

Thompson collapsed after getting off his horse when playing polo in 2009. He came to, but a doctor later sent him to the hospital and he was sent to Wellington Hospital. There, he had surgery to replace his heart's output valve, which had previously been diagnosed as abnormal since birth.

While recuperating in hospital he suffered delirium, which left him with cognitive difficulties and suffering crippling fatigue, frustration and anger. He had to take antidepressants, repeatedly lost keys, mobile phones and tools, and had a series of accidents on farm vehicles. The wool classer and buyer struggled with his work and eventually had to give it up and go on an invalid's benefit.

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The 66-year-old and his wife Lorraine van Leeuwen-Thompson have struggled financially since he stopped working and estimate they have lost at least $400,000 in earnings and in having to sell their house and part of their small holding in Maraetotara, south of Hastings, for less than it was valued. Medical reports have cost them more than $20,000.

"We have used all our savings. We have lost all the years we should have been at the height of putting money away for our retirement."

The couple claimed Accident Compensation Corporation cover for treatment injury in 2010 but were turned down twice on the grounds the surgery couldn't be established as the cause of his symptoms. Cover for treatment injury requires that the condition is not mainly the result of an underlying problem. An MRI scan of his brain had found evidence of pre-existing disease.

Since then there have been differing expert views on whether the brain injury was caused by the operation. There were two review cases, an unsuccessful District Court appeal and a further appeal to the High Court, which ordered a new hearing. Thompson won the appeal.

Thompson said it was a big relief to finally have his treatment injury acknowledged by the District Court.

"We just can't believe it," his wife said. "We're still walking around like zombies."

It is not yet clear what they will receive, although their lawyer Andrew Beck said the law provided for income-related compensation from when a claimant stopped work until retirement age, and a lump-sum payment for permanent disability. The District Court had also awarded costs, which would include medical-report costs.

"We hope to get a good pay-out and a new house and hopefully a much better life where we don't have to think we've got $5 left to last 'til next week, which is what happens all the time," she said.

 Lorraine Van Leeuwen-Thompson, with husband Graeme Thompson. Photo / Duncan Brown
Lorraine Van Leeuwen-Thompson, with husband Graeme Thompson. Photo / Duncan Brown

A corporation spokeswoman confirmed ACC would not be appealing the decision.

Asked when ACC would decide on his entitlements, she said: "The process is under way and we're working with the family to identify all Graeme's injury-related needs."

Beck said the High Court ruling would affect future cases, because Justice David Collins had emphasised a judge's role in drawing inferences on the cause of treatment injury when medical views differed and had urged consideration of the patient and his wife's evidence regarding his mental state before the operation.

District Court Judge Denese Henare, faced with the sometimes conflicting opinions of eight experts over the possible causes of Thompson's symptoms, said she agreed with a neurosurgeon's view that firm factual conclusions could not be made.

She cited specialists who said impaired cognitive function could occur with brain lesions that were not necessarily visible on a brain scan.

"No one is entirely sure of the exact cause of Mr Thompson's cognitive problems."

She ruled it was more likely than not that his cognitive impairment was caused by an "embolic phenomenon" from surgery - and that this was not a necessary part or ordinary consequence of treatment.

Stroke and delirium are well known complications of cardiac surgery in which a heart-lung bypass pump is used, such as in this operation. About 2 to 5 per cent of patients have a stroke, mostly from an embolism - part of a clot - in the bloodstream, and in some cases low blood flow to the brain. The clots are mainly from debris dislodged from the aorta, or from an irregular heartbeat.

His wife said her husband's symptoms had improved over the years and with professional help but the couple were determined to fight the case.

"Because I care so much about him, I have been determined to win this because I knew he was injured in that operation."

- NZ Herald

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