Saturday, February 28, 2009

Finally - The Legal Opinion

ACC sought a legal opinion from Bruce Corkill QC based on Phil Birds report. QC stands for Queen's Counsel - so as far as legal matters are concerned in New Zealand - that's pretty high up. Again I've had to upload them as images. If you need to make your screen bigger so you can read it, you can hold down ctrl and press the + key several times, or you can just double click on a portion of the text which will open them up so you can read it on a bigger but separate screen.

Based on this information - although I think there are a few thigs that aren't correct in these documents, I don't think I have a leg to stand on fighting it, as it boils down to scar tissue pulling the electrodes out.

The Outside Independent Surgeon's Report to ACC...

This is what the Cochlear implant specialist said in his report to ACC. Unfortuantely I wasn't able to cut and paste text but had to upload them as images as it was a scanned document.

ACC Declined Funding for my Cochlear Reimplantation


It happened. ACC denied me funding to fix my defunct, not working Cochlear Implant. It didn't come as a surprise - I had had a really bad feeling about ACC right from the beginning. Probably not helped by the case worker who had been trying to PHONE me despite me putting on my forms that I was unable to hear on the phone!!!

Anyway - their letter verbatim......

We’re sorry, we can’t approve your claim
We’ve been told you were injured on 12/11/2008 while being treated by a health professional. After careful consideration, we’re sorry to say your claim has not been approved.
Why we can’t approve your claim
We’re unable to approve your claim because it does not meet the criteria for a treatment injury.

It goes on to say...

For ACC to approve cover for a treatment injury claim, the following must apply:

*There must have been a personal injury, which occurred when you were seeking or receiving treatment from, or at the direction of, one or more registered health professionals
*The personal injury occurred as part of treatment
*The treatment can be shown to have directly caused the personal injury; and
*The personal injury is not excluded from cover (for example, the injury must not have been mainly due to an existing underlying condition)

The following condition was not identified as being related to treatment in this case:
*Failure of the right Cochlear implant
This is because:
*The treatment you received did not directly cause the condition in question.

A report from the surgeon Mr R Gunn states “At the re-implantation procedure, Robyn was found to have some fibrous scar tissue in the cochlea, and it was only possible to insert 17 of the 22 electrodes. A post-operative x-ray showed that the electrode was well in position”.

In recent months you have had a progressive deterioration in your hearing and non-auditory symptoms which is said to be due to the stimulation of the more proximal electrodes. More and more electrodes have needed to be switched off to eliminate the non-auditory symptoms, so your hearing has deteriorated accordingly.

An x-ray of the implant in late October 2008 confirmed that the implant array has been progressively migrating out of the cochlea. Mr Gunn states “we assume that this is occurring because of scar tissue contraction within the mastoid bone, through which the electrode passes in between the internal receiver/stimulator unit and the intra-cochlear electrode array. This is an unusual complication which has been reported by some cochlear implant clinics elsewhere”.

The claim has been lodged to replace the implant.

Mr Gunn further comments that the migration of the electrode out of the ear “is certainly not simply a function of a disappointing result from the implant replacement operation”.

The underlying hearing loss was present prior to the cochlear implant but you were “hearing very well with her new cochlear implant until the electrode migrated out”.

This is considered to be a rare but already reported complication in some overseas cochlear implant clinics.

External Clinical Advice was obtained by ACC from the ENT surgeon Mr Philip Bird, who specialises in cochlear implant surgery. Mr Bird states that in terms of a physical injury “…the implant itself is not damaged but the electrode has been displaced, possibly by contraction of scar tissue. The extrusion of the electrode meant that the implant is no longer effective. In this respect I think is almost certainly a physical injury given that the device has not been damaged per se. Scar tissue causing migration of the implant necessitating further surgery is not a necessary consequence of surgery. It has certainly been described and is incredibly rare both in the New Zealand experience and the overseas literature”. In fact he notes the incidence is a fraction of 1%.

Legal ECA from Mr Bruce Corkill, QC Barrister. Mr Corkill states:
With regards to a physical injury he states “In the circumstances of this case, the medical evidence is that a physical injury has occurred, namely the scar tissue which is having a critical impact on the implant. However, there is no evidence as to how the scarring was caused – which it would be essential to have if the scarring were to be regarded as a personal injury.”

He goes on to state that with regards to the physical injury being caused by treatment – “The final and critical question is whether that “treatment” is causing the “personal injury”. “Here, it appears that the reverse has occurred. It is the scar tissue which is causing the failure of the implant. On those grounds, then, it is not possible to conclude that there is a treatment injury here, unless it can be shown that the failure of the implant is in some way causing the scarring.”

Claims about scars as personal injuries caused by treatment provided by or the direction of one or more registered health professionals have been the subject of many previous claims over the years. Scars have long been determined to not be personal injuries caused by treatment.

A scar that results from the healed surgical incision is part of the healing process of the body. A scar can grow in claw-like manner into normal skin or other internal body parts such as the ear.

A scar is not a personal injury caused by treatment under the treatment injury provisions. It is the host body’s ordinary mechanism to heal wounds that are the cause of a scar. The incisional wound is a necessary part of the treatment.

The Complex Claims Panel concurred to decline the claim for cover.

*Based on the medical information available, ACC considers that failure of the right Cochlear Implant is not an injury caused by treatment. The desired results have not been achieved in this case. Additionally an injury caused by treatment cannot be found. Accordingly the claim for cover is declined.

So that's it in a nutshell - No reimplantation for me as yet. Funding will have to be found elsewhere to go ahead.

Tuesday, February 24, 2009

Special - Very Special - Save $$$

I was at Woolworths Northcote today doing my bi monthly grocery shop. Stopped in the meat section to get some chicken to stirfry up for dinner tonight.

I was attracted to the bright yellow SPECIAL stickers on the meat packs because I'm always looking out for ways to save money.

But hangon... Something not quite right....

I know people are suffering in the recession, but... 1 cent? Every single pack showed either 1 or 2c savings. That's it.

And there were some that were $4.57 down form $4.58. If you paid cash - then swedish rounding would mean you ended up losing any savings you make and paying more!

Unbelievable. I do question that they are breaking laws here in New Zealand for misleading advertising.

I did point it out to the butchery manager of the store. He didn't have a reasonable explanation. I then spoke to the Manager. They've taken my name and cellphone number and will get back to me. I will be very interested in what they have to say!!

Monday, February 23, 2009

Lipreading Misinterpreted? Or just bad Luck?

I've been advertising for flatmate. You know the story, recession, hard times, need something to help pay the mortgage. I really didn't want another student, as now that my daughter has left home, I'm ready to kick up my heels, and don't want to be tied down cooking meals for people every night of the week.

As I'm totally deaf now, and can no longer use a phone, I got my daughter to help me put up an advertisement on trademe, only giving out my cellphone (text only), and my email address. Despite saying 'Text Only' on the advertisement, my phone is chocker full of voice messages that I cannot listen to! My conclusion is that most people don't read properly.

Getting a flatmate was much harder than I thought it was going to be. First of all I got a smattering of young people looking for party flats. So I changed the advertisement to cut out those. Finally I started getting older people applying, but even that was not panning out. I often wondered if it was my hearing loss that put them off. But I will never know.

Finally I got someone who was interested. He came round to view the house and talked to me for about 15 minutes. About an hour later he texted me to say he would like the downstairs bedroom, and came back for another 15 minutes chat. He said he'd move in, in a couple of weeks, that he had just sold his house. It seemed the perfect flatmate as he works long long hours, and goes away overseas alot. We shook on it, and he left.

Later in the week I started getting emails from him which I thought a bit unusual. Nothing much - but just 'how are you today' emails. But I was polite and just repled things like 'busy' keeping it short and to the point but not unfriendly. A few days later he asked if he could come around on Sunday night. I thought perhaps he wanted to get to know me as a flatmate a bit better, so said he could. But then he started emailing more and more, and asking if my daughter was going to be home or not. I was starting to get a bit suspicious. When I questioned him, he said he was just wanting to get to know me a bit better so I put my suspicious out of my mind.

My daughter moved out of home on the Sunday morning. I started getting texts from this guy asking if my daughter had moved out yet. I replied yes. A few hours later he started asking if he could stay the night that night. I pointed out that my daughter had taken the bed and there was no where for him to sleep, so wait until he actually moved in properly.

His reply? No - I will sleep in your room thanks.

I replied to him that there is no way he'd be allowed to do that ever, that it was a flatmate position and NOTHING ELSE. No relationship, nothing. I was really angry.

He replied that he didn't want to sleep with me, just lie there with me, and didn't want a relationship.

Oh Man - that is soooooooooooo weird and creepy.

I told him tht I was not interested in him as a flatmate and he would not be moving in. I thought that would be the last of it. But oh no!

Several days went past without me hearing from him, then 2 days before he was due to move in, he started emailing me again. Every 5 minutes. He still wanted to move in. I replied No. He tried again. I replied No - what part of no do you not understand? Then he was emailing me every 5 minutes pleading, offering me free trips to Bangkok, to pay off my mortgage. Texting as well.

I realised then that there was no way out of this, as he had become absolutely fixated on me because I reminded me of his last partner. (that's what he said in an earlier email).

As a totally deaf person, living alone, this was making me feel quite vulnerable. So I rang the police via the internet relay. They got me to put all the emails and texts I had received into an email with the guys contact details. They took it very seriously indeed. They have rung him, and told him if he contacts me again, he will be arrested. They found out that his name wasn't the one he gave me. Which makes me wonder if he targets women living alone advertising in trademe.

Or he could simply have fallen in love with me - you know - my charm, inherent good looks, friendly personality, and maybe my big boobs!!! Or may be he got the wrong idea that I was interested in him simply because I had to stare at his lips to enable me to lipread?

Anyway - he hasn't contacted me again, and I have a lovely flatmate moving in on Thursday.

It's certainly been an eye opener!!!

Thursday, February 12, 2009

I'm Still Waiting ......

Waiting for anything is always frustrating, waiting to get some vestige of hearing back because of a slow government department is making me want to scream.

Just to recap - I was originally implanted in March 1993. For 16 years I had near normal hearing with the cochlear implant. In June 2007 my implant failed. In March 2008 I was reimplanted and my old electrode array sent back to Australia for an autopsy. A tear in the silicon was found, which was resulting in fluid ingression and loss of sound. Two months after my reimplantation, the new implant started deteriorating. In October it was found that the electrodes migrated out of the cochlea. I'm now totally utterly deaf. Again.

In New Zealand, we are totally reliant on government funding. No private medical insurance here in New Zealand will cover cochlear implants - we're the only OECD country in the world with private medical companies refusing cover them. Government funding falls into two categories. Either - under the DHB (District Health Board, where all my past funding has come from or if you've lost hearing because of an accident, then ACC (Accident Compensation Coporation) would pay for it.

On looking at my x-ray what looks like has happened is that where the electrode array was anchored, obviously swelled, up, and as the swelling went down, it pulled the array out of the cochlea. This is a rare event, but I'm not the first it has happened to, but I am the first it's happened to in New Zealand.

Because this happened after surgery - then it's termed as a medical injury, and is applicable for funding for it to be fixed under ACC.

My ACC form was duly sent off on the 18th November. On the form I put down that I was deaf and they could contact me via email or text phone. The week before Christmas, I rang them via the internet relay to find out where my case was at. I couldn't get hold of my case manager, so left a message for her to contact me via email. She did later that day and in the email she said she was I glad I contacted her because she had been trying to PHONE me! WTF??? I then realised my case manager knew nothing about deafness.

She told me that my case was still at their resident ENT specialist and they would have an answer for me in early January. I told her then that each passing day could mean scar tissue building in the cochlear, and that would lessen the chance of an successful outcome for me. She told me that I could always go ahead and have everything done, and they would reimburse me later. Oh - really? Sure - and just where do I have the money spare for that I wonder?

On the 6th January I rang via the internet relay to find out where my case was back. She explained that she had JUST got the case back from the resident ENT surgeon, and she has been advised to get an outside independent opinion from a Cochlear Implant surgeon in Christchurch. I bit my tongue, as this is New Zeland we're talking about. We're small. Tiny. All the CI surgeons know each other. However, I don't want my case to go offshore so I didn't say anything.

I rang several times over January each time she had no news as it was still in the hands of the outside independent specialist in Christchurch.

On 6th February emailed her and asked if there was any progress. Oh yes, we have to send it to an outside independent Cochlear Implant surgeon in Christchurch and this was sent off on monday. It will take 3 or 4 weeks, and then it has to go to the legatl team for another 3 or 4 weeks!! WTF? I thought she did that back in January? Checking the emails - yes that is what she had done. I expressed to her that I was really unhappy about this as I don't have time for this. Due process she told me.

I re-iterated that she was playing around with my chances of ever regaining hearing again. Due process she said.

Last week I went to see my MP (Member of Parliament) and told him first of the dire problems of Cochlear Implant funding in New Zealand. I outlined that there are 45 people on the waiting list for surgery right now. That's just in our Northern Cochlear Implant programme. However there are only enough implants for 5 surgeries from July to June 2009/2010 and none after that. That we needed more than a bandaid approach to funding - money being thrown at it in election year, but something more sustainable year in year out. Australia has 5 times our population, yet they fund 6.7x the amount of implants we do. In Australia people get two implants as a matter of course - in New Zealand we can't even get funding for one.

I pointed out that this lack of funding is affecting me. Should ACC turn me down, then I take an implant away from someone else on the waiting list, and for this reason, I have to wait for ACC to say Yay or Nay before a decision is made. Obviously it's in the best interests for everyone concerned to get funding from ACC first so if they do say yes, then our waiting list for implants goes to 44. Not for very long though - as at least 30 people go onto the waiting list per year.

My MP Jonathan Coleman is an ex doctor, so he understood what I was saying. I've met him before when my implant was going well, so the meeting for himm was like chalk and cheese - from near normal hearing to hearing nothing at all. He also understood how tiny the cochlea is and about scar tissue.

He has written a letter to the CEO of ACC asking for my case to be investigated as it's taking too long.

Today I heard that a friend of mine who applied for funding to ACC for his failed implant to be explanted/reimplanted, around the same time/or just after me, has had his funding approved already. Whilst I'm so pleased for him, it makes me all the more frustrated with my case and the length of time it's taking.

I'm still waiting.....