NZ woman with Spina bifida wins compensation for not being aborted
A young woman has won a court battle for compensation after doctors failed to diagnose her with spina bifida in utero.
The 18-year-old, who can be identified only as AZ, took her case to the High Court in Auckland after the Wellington District Court earlier affirmed ACC’s refusal to pay out.
AZ said the doctors’ misreading of a 20-week scan constituted a treatment injury, as her mother would have aborted her if the correct diagnosis had been made.
Instead, her spina bifida – a birth defect where the spine and the membranes around the spinal cord fail to close – and related issues, including scoliosis, bladder problems and a learning disorder, meant she had undergone multiple surgeries and needed ongoing medical treatment.
She would likely never be able to hold down a job or live independently, the court heard.
AZ’s lawyer, Philip Schmidt, said her mother had already received ACC compensation for having to continue a pregnancy she would have terminated if not for the missed diagnosis.
AZ should be eligible for compensation too, he said.
“Just as the continued pregnancy was a personal injury for the mother ... the continued progression of the spina bifida in AZ was a personal injury for AZ.”
Her mother had not been able to make an informed decision about AZ’s best interests, which included “how to avoid the pain and suffering endured by a child born with spina bifida”, he said.
ACC, however, argued spina bifida was a pre-existing, underlying health condition, “for which no cover can be provided”.
Termination of the pregnancy was also not in the best interests of the foetus, the corporation said.
Justice Gerard van Bohemen, in his recently-released decision, agreed with Schmidt that both AZ and her mother were victims of medical error.
The misdiagnosis “caused” the continuation of AZ's mother’s pregnancy and also “caused” AZ to be born with spina bifida, he said.
“The misreading of the scan and the loss of the mother’s opportunity to elect termination amounted to a treatment failure that caused personal injury to the child and the mother and for which both are entitled to cover under the ACC Act.”
Justice van Bohemen ruled AZ should receive ACC compensation, as well as court costs.
He acknowledged the decision would lead to a “disparity in benefits”, as AZ would be eligible for more financial support than a person born with spina bifida who was not misdiagnosed pre-birth.
However, that was the consequence of the difference in cover provided under the ACC Act and that available through the social welfare system – a difference that could only be resolved through legislation, he said.
This article was originally published here