A recent Supreme Court decision ruled that pregnancy caused by medical misadventure is a ‘personal injury’ that ACC should cover.
Reproduced below the jump is a summary of the case that appeared in our May newsletter.
AS REPORTED in our August 2011 newsletter the Supreme Court agreed to hear an appeal by a doctor who was being sued by a patient who became pregnant after a failed sterilisation operation.
The facts of the case were:
• In January 2004 the mother of two identified only as H underwent a sterilisation operation at Middlemore Hospital carried out by obstetrician and gynaecologist Dr Keith Allenby.
• In December 2004, H found out that she was five months’ pregnant due to the fact that a clip had not been correctly attached to one of her fallopian tubes.
• In March 2005, H gave birth by caesarean section and the baby was given up for adoption.
• In August 2010 the High Court in Auckland referred the case for compensation straight to the Court of Appeal.
• In June 2011, the Court of Appeal confirmed its decision in an earlier 2008 case (ACC v. D) that pregnancy is not a ‘personal injury’ under accident compensation legislation.
On 16 February 2012 the case was argued in the Supreme Court and on 9 May 2012 the unanimous decision was not only that H should be eligible for ACC but also that rape cases should be eligible for ACC. The latter inclusion was as a result of action taken by DSAC (Doctors for Sexual Abuse Care) who were represented by lawyer Felix Geiringer to act as intervener in the case. DSAC was aware of several cases involving non-residents who had become pregnant and ACC had refused to pay for the abortion, citing the ACC v. D decision. (New Zealand residents are covered if they have an abortion in a public hospital.)
H’s case had nothing to do with abortion but because of ACC v. D, the arguments were allowed. ALRANZ congratulates DSAC for raising this issue and is heartened by the successful outcome.
The Supreme Court decision and a media release are at: http://www.courtsofnz.govt.nz/from/decisions/judgments
If the case is no longer on that page (older cases drop off the bottom), you can use the search engine at the top of the page and insert the case number, which is SC 70/2011.
This article originally appeared in ALRANZ’s May 2012 newsletter. You can find an archive of our newsletters at our main website. And of course, to receive your own copy in your inbox every quarter, you can join ALRANZ.