Mastectomy error could mean ACC payouts

Peter Sara.
Peter Sara.
A successful claim for ACC payments for mental injury could result from a case in which an Otago woman had a mastectomy by mistake earlier this year, Dunedin ACC lawyer Peter Sara says.

The woman would be eligible for lump sum compensation for that injury, he said in an interview.

But, depending on the circumstances of the case, she could also have a further claim for weekly compensation payments resulting from mental injury.

That partly depended whether mental injury, such as depression or post-traumatic stress disorder, had resulted from the mastectomy, and whether the woman, if she had been working, was subsequently unable to work, Mr Sara said in an interview.

Southern Community Laboratories (SCL) in Dunedin has apologised to the woman who had the mastectomy procedure earlier this year after her breast biopsy specimen was accidentally swapped with another.

The switch also resulted in a false clearance for the other Otago woman, who needed surgery for breast cancer.

Mr Sara said that, depending on the circumstances of the case, the other woman could also have claims involving possible mental injury.

A change to the ACC's governing legislation in 2005 had replaced previous controversial "medical misadventure" provisions with an improved "treatment injury" section.

The previous provisions had often required error by a medical professional to be established, or an organisational error.

This sometimes had the effect of pitting the injured claimant against the surgeon, in a way that could damage relationships and was out of keeping with the supposed "no fault" nature of the ACC scheme.

Where the medical procedure had been carried out correctly, but an adverse result had occurred, claimants had been required to show that the injury did not result from more than about 1% of such medical procedures, a guideline heavily criticised as unfair, he said.

Under the revised legislation, it was easier to establish a treatment injury, and some sources of earlier controversy had been removed.

Some of the circumstances involving the woman who had received a false cancer clearance were less clear, but if aspects of her situation were not covered by ACC, she could have the right to sue medical authorities, he said.


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