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Home / New Zealand

Legal battle could take its toll on family of disabled boy

NZME.
11 Aug, 2015 02:04 AM4 mins to read

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2-year-old toddler William Burton has severe brain damage due to un-diagnosed meningitis. He is the subject of a Health and Disabilities Commission report released this week. Here is an emotional commentary from William's father, describing the awful events that led to his son's condition.

A lengthy legal battle could take an emotional and financial toll on the family of a severely disabled Wellington boy, a legal expert says.

Wellington boy William Burton, 2, was left quadriplegic and severely brain damaged after a hospital twice failed to diagnose E. coli meningitis.

Doctors have now told William's parents Derek and Wendy their son won't be put back on life support if he needs it again.

Speaking to NZME News Service today, Professor Mark Henaghan of the University of Otago said hospitals would normally work closely with families until both parties recognised that life support treatment had become futile.

"I think what is unusual about this case is that the little boy had been on life support and come off it and recovered.

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"Also, the family had a backdrop of obviously some situation where the hospital had misdiagnosed meningitis. Obviously their trust of hospital decisions isn't very strong."

William was brought to the hospital by his parents in October 2013 and was twice sent home within two days, with a junior doctor on the second occasion diagnosing a gastric illness.

Three days after that, on William's third visit to hospital, meningitis was diagnosed and his parents then spent a heart-wrenching month watching their boy's brain wither away.

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A Health and Disability Commissioners report, released yesterday, found the actions of the Capital and Coast District Health Board were to blame for William's disabilities.

However, Wellington Hospital recently told the Burtons that William won't go back on life support - a decision Starship Children's Hospital in Auckland backed up in a second opinion.

Mr Henaghan said while the Burtons had the ability to take legal action, the financial and emotional costs of a legal stoush could take a toll.

"You can always have a decision reviewed, and obviously you can challenge it in court.

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"Generally speaking though, whenever people do go to court to challenge medical decisions ... generally courts tend to favour medical advice on the basis they don't like to order medical people to do things they think wouldn't be in the patient's interest."

Mr Henaghan said it would come down to the family being able to show the decision wasn't in William's best interest.

"But if the medical people could show ... the life support system is going to be painful and futile, and he is not going to recover, they tend to go with the weight of the medical evidence. It's not an easy case to run.

"It's obviously a really last resort you want to go anywhere near."

William's father Derek said he and his wife desperately wanted Wellington Hospital and Starship Hospital to overturn their decisions.

"What we've heard is that it is indeed quite difficult to challenge doctors' decisions, but there is a substantial amount of a grey area here with our case.

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"We would absolutely love to get this decision over-turned."

He said he and his wife worried about William a lot.

"Being William's parents is incredibly stressful ... [the life-support dcecision] just adds another huge layer of worry on top.

"We would absolutely love to take that uncertainty hanging over us and our son away."

He said he did not know how much it would cost to put together a legal case, and he was unsure the family could afford the time and energy it would take.

Lawyer Philip Schmidt said while the Burton family couldn't sue the health board for personal injury, they could make a claim through ACC for a treatment injury.

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The family is already getting ACC support after filing a claim.

Mr Schmidt said it was "the only remedy they've got".

"It doesn't sound like there's anything more than an error, albeit an error with really serious consequence. If it was at the more serious end of the spectrum then the commissioner would recommend some form of prosecution. And if that happened then there are other potential remedies available, but assuming it's more in the nature of a serious but avoidable mistake, with no intentional conduct, then they don't have a right to bring a remedy in any court of law, they're statute barred because the matter is meant to be covered by the ACC system.

"That's the way the system works. You can't sue for personal injury in New Zealand. But the quid pro quo is that you're covered by the compensation system, and in particular for treatment injury."

A Givealittle page set up for William has raised almost $8000 since July 31.

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