Teen left wheelchair-bound by Guillain-Barré syndrome denied ACC cover on appeal

A teenager now in a wheelchair after contracting Guillain-Barré syndrome has failed a third bid on appeal to get ACC cover. Photo / 123RF

• A teenager left paralysed by Guillain-Barré syndrome after a bout of food poisoning has been denied ACC cover after a third court appeal.
• The teen was left wheelchair-bound and in need of daily assistance.
• Medical experts agreed early treatment was desirable, but no evidence showed an improved outcome from earlier intervention.

A teenager paralysed by a rare autoimmune condition that struck while he was on holiday has failed to convince a third court he’s entitled to help from ACC.

The unnamed teen and his family’s life changed suddenly in January 2017.

A bout of food poisoning before they arrived in Nelson for a summer holiday led to the 15-year-old developing alarming post-viral symptoms that turned out to be Guillain-Barré syndrome (GBS).

The diagnosis at Nelson Hospital after an emergency admission came eight or nine hours after the teen’s mother phoned a medical helpline, and as it turned out, was given the wrong advice about what to do.

The teen was now in a wheelchair and needed assistance with daily living.

The family, with the help of a physician, argued the outcome might have been better had he got treatment sooner.

The Court of Appeal has now upheld decisions by two lower courts and dismissed the appeal.

The District Court found that based on the medical evidence provided, the delay in hospital admission did not cause a treatment injury.

The High Court said the lower court had applied the correct legal test for cause, which had not been correctly established.

The teen's condition was diagnosed after emergency admission to Nelson Hospital while the family was on holiday in the region. Photo / Tracy Neal

The Appeal Court said there was a consensus among the experts that early recognition of GBS and treatment was desirable and may be important in long-term prognosis.

However, the issue in dispute was the probable effect of a seven to eight-hour delay.

What is Guillain-Barré syndrome?

Guillain-Barré syndrome happens when the immune system attacks and damages peripheral nerves.

The exact cause is unknown but usually followed a respiratory or gastrointestinal bacterial or viral infection.

In this case, the teen became unwell earlier in January 2017 with food poisoning.

An appointment to see his doctor was cancelled when his symptoms improved, and the family left for a planned summer holiday in the Nelson area.

Days after arriving the teen began to experience difficulty walking and developed a sensation of weakness in his arms. He collapsed while out walking and had to be helped to his feet.

Later that evening his mother phoned the medical helpline and told the nurse that her son had been unwell with a “tummy bug”. He was by then eating properly but was “sore and achy, shivery, lacking coordination, walking in a jerky way with legs locking, and had a sensation of muscle twitches”.

The nurse suggested he could still be suffering the effects of the tummy bug and advised the teen’s mother to keep his hydration levels up and to call back if he became breathless, blue around the lips or developed a rash.

The Court of Appeal said it was common ground that this advice was wrong. The symptoms and history described were a “classic presentation of GBS” or another serious neurological condition which warranted further urgent medical investigation.

The correct advice would have been immediate transfer to the hospital.

In the early hours of the following morning, the teen’s condition had deteriorated to the point he was unable to move his legs or open his fingers. His mother phoned the helpline again and a different nurse advised calling an ambulance immediately.

GBS was identified soon after his admission to Nelson Hospital, the Court of Appeal said.

Emergency treatment

There was no cure for GBS, but two types of treatment—plasma exchange and intravenous immunoglobin therapy could reduce symptoms and speed up recovery.

Intravenous treatment was started and the teen was then flown to Christchurch Hospital where he was seen by a neurologist and plasmapheresis treatment began.

Two months later the teen was transferred to the Burwood Spinal Unit in Christchurch. His treating physician Raj Singhal lodged a treatment injury claim with ACC for the delayed diagnosis, the Appeal Court said.

ACC accepted that the seven to eight-hour delay in diagnosing the seriousness of his condition was a failure to provide treatment promptly within the meaning of the Act.

However, it declined the claim on the basis that the delay did not cause the GBS nor did it increase its severity.

ACC’s decision was upheld on review and subsequently on appeal to the District Court.

After the High Court dismissed the appeal, special leave was granted for a further appeal to test a legal argument, but the Appeal Court reached the same conclusion as the lower courts – the High Court made no error in upholding the District Court’s application of the legal test for causation.

The opinion of medical experts was that there was no evidence pointing to an improved outcome had treatment been given earlier.

Singhal responded that an earlier diagnosis would have shortened the degree of disability and the time on the ventilation.

Justices Christine French, Sarah Katz and David Collins said they were aware the decision would be very disappointing for the appellant and his family who had endured so much and had clearly shown exceptional courage and determination.

“However, the threshold for relief at this stage of the litigation is a high one and for the reasons we have given we are not persuaded it has been met.”

NZME has tried reaching the appellant via the lawyer who acted for him.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.