It was accepted by the High Court that her mother would have terminated the pregnancy had she known of the girl’s condition, and a decision released today by the Court of Appeal agreed.
AZ’s mother qualified for cover under the Accident Compensation Act 2001, and in the Court of Appeal’s judgment, it was found so did the young woman despite ACC’s attempts to appeal the decision previously made in the High Court.
The misdiagnosis and failure to terminate was a treatment injury that caused AZ’s personal injury, spina bifida, the court determined.
“The only option to prevent the birth of a child with spina bifida was termination of the pregnancy,” the decision said.
“Therefore, termination of the pregnancy would have been treatment of AZ which operated to prevent the continuation of spina bifida even though the outcome of the termination would have been to prevent AZ’s birth.”
It was said in the judgment that to deny AZ cover under the act risked inviting common law personal injury claims brought by people in similar circumstances faced by AZ.
Termination was a form of treatment because the condition could not be treated in utero at the time of the scan in 2003.
“We therefore conclude that the definition of ‘treatment’, and therefore ‘treatment injury’ under the act, must have a meaning which respects the autonomy of a pregnant woman to determine what happens to her body,” the court said.
“We accept therefore that the misdiagnosis of the scan at 20 weeks was treatment of AZ that potentially could give rise to a treatment injury for the purposes of the Act.”
The scan showed the foetus had a lemon-shaped head, which should have prompted further scans and revealed the condition, but this did not happen and the pregnancy continued to term.
AZ now relies on a wheelchair and has several other disabilities and developmental challenges. She will need assistance from family or caregivers for the rest of her life.
At the appeal in March this year, ACC lawyer David Laurenson KC said the High Court was incorrect in applying the Accident Compensation Act because the treatment — the 20-week scan — did not cause the injury.
Laurenson also said the proposed treatment, a termination of AZ in utero, was not a medical treatment of the condition, “it just ends the life”.
Lawyer Philip Schmidt, on behalf of AZ, said the scan was treatment, and the failure to address the issues in utero because of oversight meant the act could be applied.
He said AZ’s mother would have terminated the pregnancy had she known, and AZ would have never been born. The scan did not cause spina bifida, but instead allowed it to develop without treatment.
Lawyer Harry Waalkens KC spoke on behalf of the Medical Protection Society, an intervener at the appeal hearing, and said the case was an important one for the medical profession.
Waalkens said scans were 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.
It was agreed at the hearing legal costs for AZ would be covered by ACC regardless of the appeal outcome due to the public importance.
Hazel Osborne is an Open Justice reporter for NZME and is based in Te Whanganui-a-Tara, Wellington. She joined the Open Justice team at the beginning of 2022, previously working in Whakatāne as a court and crime reporter in the Eastern Bay of Plenty.
