The corporation declined hers and her daughter’s applications, and, earlier this year, she took her fight to the District Court, where a judge found that the medical advice she had been given was incorrect.
According to that ruling, the woman, who has name suppression, gave birth to her daughter several years ago. The baby had Down syndrome, tracheoesophageal fistula, a hearing impairment, multiple respiratory infections and infantile spasms.
In her claim for cover with ACC, the woman said she relied on the results of her screening test and the advice of her midwife in deciding to continue the pregnancy and would have elected to terminate had she known her baby would have Down syndrome.
That advice also meant she didn’t undertake further diagnostic tests.
The corporation investigated and interviewed the medical professionals involved in the woman’s antenatal healthcare, including her obstetrician and gynaecologist, who said there was no history of chromosomal abnormality in the family, and that while a 20-week scan doesn’t test for abnormalities, there are other visual markers which weren’t identified in this case.
A paediatrician also found that she was identified as being low risk of having a baby affected by Down syndrome, with the odds being about 1 in 13,000.
Her midwife reviewed the treatment provided to the woman and considered that, given the results of the test, “there was no alternative treatment path” and, given the woman’s low risk there was “no reason why further diagnostic testing … would have been considered”.
However, a maternal foetal medicine specialist organised a double-blind review of the woman’s scans, and both blind reviewers suggested that there should have been further assessment following the scan.
Overall, the specialist concluded that an earlier diagnosis could have been made from those scans.
The woman told ACC that she accepted the advice given to her by her midwife was correct and that there was an “extremely rare chance” that the combined screening results could have been wrong.
“The midwife reassured me that the odds on my baby being born with Down syndrome were extremely remote. She advised that I should trust in the process and that it was unnecessary to undergo any further testing,” her evidence to the court said.
“I believe it was reasonable of me to rely on the outcome of this testing when making the decision to continue with this pregnancy.
“I specifically underwent the combined screening tests to avoid this outcome, which is why I believe it should be covered as a treatment injury.”
‘… the purpose of the treatment was to avoid the very outcome suffered …’
At the District Court earlier this year, where the woman appealed ACC’s decision to decline cover, Judge Allison Sinclair noted that it was not the woman’s view that the screening test had been carried out incorrectly, but that it returned a false negative reading, and it was on that basis that she decided not to take a diagnostic test.
“In the present case, the Screening Test produced a false negative result. It follows that the medical advice given based on (and incorporating) that false reading was not correct,” Judge Sinclair said.
“Crucially, the advice failed to provide an accurate risk assessment which could be relied upon by [the woman] in making her decision as to whether to proceed with diagnostic testing.”
Judge Sinclair said the woman relied on the risk assessment provided and was a material cause in her decision to continue the pregnancy without undergoing diagnostic testing.
“… the purpose of the treatment was to avoid the very outcome suffered by [the woman] and [her daughter],” Judge Sinclair said.
Judge Sinclair allowed the woman’s claim and said she was entitled to ACC cover.
Now, ACC has successfully been granted leave to appeal that ruling from the District Court and will take the case up again at the High Court early in the new year.
ACC’s lawyer, Sebastian Bisley, made submissions the grounds for appeal was that the screening test was the cause of the decision not to continue with further diagnostic testing.
Bisley said that the cover for a treatment injury required a professional standard to not have been met.
“In order for there to be a failure to provide treatment, we consider there must have been some indication at the time of the failure that the treatment not provided should have been provided,” Bisley said in submissions.
“Unless that approach is taken, it is difficult to see how there could be a relevant failure to provide treatment that caused the personal injury.”
Bisley told NZME that the corporation could not comment on cases that were still before the courts.
Lawyer for the woman and her daughter, Phil Schmidt, told NZME that this wasn’t the first case of its kind in terms of cover for a child with Down syndrome, but it was the first case where cover has been granted where there wasn’t a specific treatment failure but the continuation of the pregnancy was caused by a rare outcome of the treatment which was a false negative result returned by the screening test.
“This is a separate branch of treatment injury where fault is not required,” he said.
Schmidt said the woman relied on a test result when making a decision to continue with the pregnancy.
“The case illustrates that patients and health professionals trust these tests as they are very reliable. Every now and again, however, such tests produce an erroneous result, which means that decisions reliant on the test will be wrong,” he said.
“This can cause injury, as is the case here.”
Jeremy Wilkinson is an Open Justice reporter based in Manawatū, covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.