Harold Shipman Malpractice Legacy perpetuated by New Zealand courts failing to uphold human and...

7/29/2019 Harold Shipman Malpractice Legacy perpetuated by New Zealand courts failing to uphold human and individual Rights

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In the High Court of New Zealand Number CIV 2011-404-006634

Auckland Registry

UNDER THE High Court Rules Part 5, Rule 30.3

New Zealand Bill of Rights Act 1990

sections 8, 9, 19, 27

Crimes Act 1961

sections 150A, 151, 155, 156, 157, 160, 165

Crimes Act 1961

Sections 71, 107, 116, 405, 408

Health and Disability Commissioner Act 1994

Sections 5, 6, 34 , 39, 74

Health and Disability Commissioner (Code of Health

and Disability Services Consumers Rights)

Regulations 1996

Medicines Act 1981

Sections 3, 3A, 37

Misuse of Drugs Regulations 1977

Schedule 1 andregulations 44, 45, 52

/

SYNOPSIS

(PLAINTIFFS)

Dated Monday, 12th day of March 2012

for Interlocutory Hearing Monday19 March 2012

This document is filed by the plaintiffs in person. The address for service of the plaintiffs is38 Damien Place, Bromley, Christchurch 8062, facsimile (03) 942-6557, email

[email protected]


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Protection of Personal and Property Rights Act 1988

section 18(1)(c)

Health Practitioners Competence Assurance Act 2003

section 3

Human Rights Act 1993

sections 3, 21 (1)(h)(i), 65

Births, Deaths, Marriages and Relationships

Registration Act 1995 sections 3, 84(2), 85(A)

Coroners Act 2006

sections 3, 12, 13(1)(c)(iii)(v), 17, 57

IN THE MATTERS OF Culpable homicide

sections 160, 408 Crimes Act 1961Causing death that might have been prevented sections

165, 408 Crimes Act 1961

Major departures from the standard of care required of

persons under legal duties:

sections 150A, 151, 155, 156, 157, 408 Crimes Act1961; Health and Disability Commissioner (Code ofHealth and Disability services Consumers Rights)Regulations 1996; sections 8, 9, 19 Bill of Rights Act1990; sections 6, 39, 40, 105A, 105B Medicines Act1981; sections 3, 21(1)(h)(i), 65 Human Rights Act1993; section 18(1)(c) Protection of Personal andProperty Rights Act 1988; section 3 HealthPractitioners Competence Assurance Act 2003

Contravention of statute

section 107, 408 Crimes Act 1961

Accessories after the factsections 71, 408 Crimes Act 1961

Conspiring to defeat justicesections 116, 408 Crimes Act 1961;section 27 Bill of Rights Act 1990

Breach of coronial, health and disability commissioner

and police officer legal duties:

sections 3, 12, 13(1)(c)(iii)(v), 17, 57 Coroners Act2006; sections 5, 6, 34, 39, 74 Health and DisabilityCommissioner Act 1994; Health and DisabilityCommissioner (Code of Health and Disability ServicesConsumers Rights) Regulations 1996

Erroneous death certification

sections 3, 84(2), 85(A) Births, Deaths, Marriages and

Relationships Registration Act 1995


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BETWEEN

first plaintiff PAULINE JANICE HARRISON of 38 DamienPlace, Bromley, Christchurch, sister and inquestrepresentative forMALCOLM ARMSTRONG

HARRISON (Victim)

second plaintiff ANGELA JANICE HARRISON of 38 DamienPlace, Bromley, Christchurch, niece and inquestrepresentative forMALCOLM ARMSTRONG

HARRISON (Victim)

AND

first defendant AUCKLAND DISTRICT HEALTH BOARD for

AUCKLAND CITY HOSPITAL, Grafton,Auckland

second defendant ANNE OCALLAGHANC/o Auckland City Hospital, Grafton,Auckland, doctor

third defendant KATHERINE JANE RIX-TROTT

C/o Auckland City Hospital, Grafton, Auckland,junior doctor

fourth defendant AROHA WAAKA

C/o Auckland City Hospital, Grafton, Auckland,nurse

fifth defendant HEALTH AND DISABILITY COMMISSIONER

Level 10, Tower Centre, 45 Queen Street, Auckland

sixth defendant CORONIAL SERVICES UNIT,

Level 7, 3 Kingston Street, Auckland


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SYNOPSIS

Plaintiffs

AETIOLOGY

[1] Every action has a reaction in physics.

[2] This High Court Proceeding is the outcome of deadly drug cocktails andother major safety breaches causing morbidity and death and refusal to carry out

legal duty, responsibility and obligation to the law, to the victim and to the public.

[3] When the Acts were breached by the defendants refusing Mr. Harrisonreasonable care in breach of best practice standards and global warnings which

caused dangerous morbidity and iatrogenic death then this is seen in law (under the

provisions of the Acts) to have breached that legal duty. Once it gets to that point

then the foundation is laid for charges to follow. This has resulted in the legal

basis for the claim and the court proceedings against the defendants.

CIVIL LIABILITY - LEGAL BASIS FOR CLAIM

Matters of Fact

Duty of Care

[4] The first, second, third and fourth defendants had a legal and ethical duty ofcare under the Acts to Mr. Malcolm Armstrong Harrison as health providers and

are required to comply with best practice standards and heed universal safety

warnings which they defied.

[5] Mr. Harrisons case has elements of the Michael Jackson case, described bythe prosecutor, Deputy District Attorney David Walgren:

Murrays actions represented a criminal breach of the Hippocratic

oatha doctors pledge to do no harm.1

1Rhys Blakely reported in The Press Christchurch, World News Section B3, 9 November 2011


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[6] The first, fifth and sixth defendants have a legal duty, responsibility andobligation under the Acts as government officers to protect, preserve and enforce

the victims rights which they defied.

Breach of DutyFirst Defendant

[7] Mr. Harrison, a patient, died under the first defendants roof through acontinual chain of malpractice. The defendant has a fiduciary duty to uphold and

did nothing.

[8] District Health Boards are required to review adverse events and report themto the Health Quality & Safety Commission New Zealand and the first defendant

did not.

[9] The defendant was required to diligently safeguard Mr. Harrison and otherpatients and did not.

Breach of Duty - First, Second and Third Defendants

[10] It is a doctors responsibility to know that a potent drug cocktail ofMethadone on Amiodarone, Haloperidol, high dose Co-Trimoxazole,

Benzodiazepines Lorazepam and Midazolam, Fentanyl and Morphine is a deadly

formula, or they are not skilled and should therefore not be working as a doctor.2

(Appendix B)

[11] START LOW, GO SLOW in prescribing potent drugs is the goldenrule and all doctors know it. The defendants prescribed contraindicated potent

drugs irresponsibly and indiscriminately.

2See letter from Professor Iain Martin, Dean, Faculty of Medical and Health Sciences, and

Warwick Bagg, Associate Professor of Medicine, Associate Dean (Medical Programme) The

University of Auckland, Medical Programme Directorate, dated 11 July 2011


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Methadone Overdose

[12] The Controlled Drug Register on the Ward shows that an additional 10 mg ofMethadone was dispensed to Mr. Harrison on 2 November 2007 on the day

Mr. Harrison died. This potent dose was not written on Mr. Harrisons Drug Chart.

The Watch Report confirms it was administered to Mr. Harrison at 0800 hrs. A

total of 35 mg of Methadone to the opioid nave patient. In addition Mr. Harrison

still had the previous days Methadone potent dose live in his system, taking him

up to 50 mg. In addition Mr. Harrison also had a combination of interacting

Methadone potentiating drugs in his system, taking the total Methadone serum

concentration well in excess of the amount to cause death to an opioid nave

person.

[13] The last dose of Methadone (concomitantly administered with Haloperidol)was administered at or about 1420 hrs. Mr. Harrison died at or about 1930 hrs

which was within the six hour time frame declared by Medsafe New Zealand

(New Zealand Medicines and Medical Devices Safety Authority) which states for

non-tolerant adults, doses of 50 mg or less have been known to be fatal, including

doses taken orally. Potentially lethal overdoses of methadone can occur within 30

minutes to six hours after ingestion by non-tolerant or partially tolerant

individuals.3

[14] The second and third defendants breached good prescribing practice whichrequires to never prescribe indiscriminately, excessively or recklessly.4

[15] Against Best Practice and Safety Warnings, the second defendant increasedMr. Harrisons dose of Methadone from 2.5 mg on 1 November 2007 to 20 mg of

Methadone on 2 November 2007, flagrantly against all drug safety warnings.

She also dangerously increased Haloperidol, knowing that in combination these

potent drugs both increase the QTc interval and increase sedation, absolutely

contraindicated for the patient, as is Beta blocker Midazolam and Lorazapam with

Methadone. In addition there was no monitoring.

3

Medsafe New Zealand Medicines and Medical Devices Safety Authority, Information forHealth Professionals Data Sheet,

www.medsafe.govt.nz/Profs/datasheet/b/Biodoneoralsoln.htm, page 7 on Overdosage4

Medical Council of New Zealand Good prescribing practice
http://www.medsafe.govt.nz/Profs/datasheet/b/Biodoneoralsoln.htmhttp://www.medsafe.govt.nz/Profs/datasheet/b/Biodoneoralsoln.htmhttp://www.medsafe.govt.nz/Profs/datasheet/b/Biodoneoralsoln.htm


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[16] The World Health Organisation recommends 2.5 mg once daily inMr. Harrisons age group. For frail elderly people an even smaller starting dose

can be used, e.g. 1 mg once daily, and warns that dose changes should not occur

faster than once weekly in this group.5

[17] On November 27, 2006, the FDA issued a public health advisory formethadone, entitled Methadone Use for Pain Control May Result in Death and

Life-Threatening Changes in Breathing and Heart Beat. Also an Alert on

Haloperidol in 2007.6

[18] Waitemata District Health Boardwarns:There are a number of medications that, when taken with methadone, can

cause a variety of unexpected, unwanted or potentially dangerous outcomes.

For example, using methadone with any other drug that depresses the central

nervous system i.e. those which cause sedation such as alcohol, benzos,

other opioids, GHB, and medications with sedative side effects like some

antidepressants, antipsychotics and antihistamines can potentially be very

dangerous, and sometimes fatal.7

[19] Lethal doses of methadone can be around 25 mg for intolerant adults.8

[20] Benzodiazepines are Controlled drugs9 which when administered incombination with Methadone are renowned for causing lethal effects.

[21] The net effect of the deadly cocktail ofdrugs administered to Mr. Harrisonssystem is the sum of the substances individual harmful effects causing supra-

additive (synergistic/potentiating) effect which is greater than additive. This is

explained in the statement of claim.

5Best Practice Journal Issue 18, page 28

6http://www/fda.gov/medwatch/safety/2006/safety06.htm#Methadone. And FDA Alert

[9/2007] Haloperidol7

Waitemata District Health Board Information Sheet 18. Methadone8http://wiki.answers.com/Q/Lethal_dose_of_methadone

9Medsafe New Zealand Medicines and Medical Devices Safety Authority, Regulatory Issues,

Benzodiazepines to be Controlled Drugs
http://www/fda.gov/medwatch/safety/2006/safety06.htm#Methadonehttp://www/fda.gov/medwatch/safety/2006/safety06.htm#Methadonehttp://www/fda.gov/medwatch/safety/2006/safety06.htm#Methadonehttp://www/fda.gov/medwatch/safety/2006/safety06.htm#Methadone


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[22] In cases of methadone-associated death, alcohol, benzodiazepines, and/orother opioids are frequently implicated.10

[23] The third defendant inappropriately prescribed Mr. Harrison Amiodaronewithout a permanent defibrillator in situ. Amiodarone was administered

concomitantly with Metoprolol which competes against the Amiodarone.

In addition, as can be seen in the Drug-Drug Interaction Checker List

(Appendix A) multiple other interactive potent cardiotoxic drugs were

administered to Mr. Harrison from 30 October 2007 to 2 November 2007 in deadly

drug combinations which cause potentiating effects, dangerous QTc interval

prolongation and over-sedative effects causing respiratory depression,

cardiotoxicity. Not surprisingly Mr. Harrison died in the presence ofapproximately 40 serious and significant drug interactions 11 harmful to the

human system which the first, second and third defendants were responsible for.

This evidence was concealed from an inquest.

[24] Amiodarone has an extremely long drug elimination half-life average of 58days (ranging from 25-100 days)12meaning it takes in the order of 58 days before

the drug reduces to half of its potency and 36 days for its active metabolite

desethylamiodarone. Amiodarone is extensively metabolized in the liver by

cytochrome P450 3A4 and affects the metabolism of numerous other drugs with

resultant potentiating cardiotoxic effects. Amiodarone was commenced at 1400 hrs

on 30 October 2007 at 400 mg, followed by a dose of 800 mg on 31 October 2007.

Amiodarone potentiates Methadone, adding to the Methadone serum concentration

in Mr. Harrisons system on the day he died.

[25] Under these defendants from 30 October 2007 to 2 November 2007 a regimeof potent drugs was prescribed for Mr. Harrison which has approximately

40 serious and significant cardiotoxic drug-drug interactions requiring close

monitoring.

10Zador and Sunjic 2000

11 Medscape drug interaction checker, MIMs New Ethicals, FDA Drug Alert

12 Remington: The Science and Practice of Pharmacy 21st edition


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[26] Cardiac monitoring was turned off. Necessaries of life were refused.Intensivist specialist expertise was refused.

[27] The defendants have no defence.

Breach of Duty - Fourth Defendant

[28] Mr. Harrison should never have been administered Metoprolol beta blocker, ablood pressure lowering drug when he had low blood pressure and was noticeably

dehydrated.

[29] This defendant knows that controlled release drugs should not be crushed andwhy they should not be crushed or she has no business to be administering drugs

putting patients at risk.

[30] At or around 0900 hrs on 29 October 2007 the fourth defendant crushed47.5 mg of Metoprolol succinate which released a 24 hour dose of the drug in a

surge which she administered to Mr. Harrison against pharmaceutical warning.

[31] Mr. Harrison was beta blocker nave.[32] Nine hours previously at or around 2400 hrs on 28 October 2007Mr. Harrison had been administered another 47.5 mg dose of Metoprolol succinate

also on low blood pressure and this dose was also still working in his system when

the defendant overdosed him at 0900 hrs the next morning.

[33] Metoprolol was started at 23.75 mg at 1115 hrs on 25/10/2007, stopped on26/10/2007, then started again (at double dose 47.5 mg) at 2400 hrs on 28/10/2007,

then overdosed nine hours later at 0900 hrs on 29.10.2007, which was an erratic

undisciplined regime of drug prescribing against the manufacturers and FDA

instructions.

[34] Too much crushed Metoprolol succinate at or about 0900 hrs on 29 October2007 was given too soon after a preceding dose of Metoprolol which caused

chemically induced cardiac arrest with Asystole (no pulse, no heartbeat, no


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respiration) at or about 1215 hrs on 29 October 2007, followed by CPR and

DC Shock. ECG rhythm strip held in evidence.

[35] No permanent defibrillator device was used which is a straight forwardprocedure.

[36] No Echocardiogram was performed which is important best practice afterinduced cardiac arrest.

[37] Documentation is poor and events leading up to chemically induced cardiacarrest were never investigated which were required to be investigated and the

fourth defendant never owned up.

[38] The defendant deprived the flow of Oxygen by causing Asystole fromMetoprolol overdose that she administered. The brain depends on the constant

uninterrupted delivery of Oxygen and Glucose.

[39] The defendant never filed an Incident Report when she had overdosedMr. Harrison. She induced cardiac arrest then kept it secret when the underlying

cause is required to be investigated.

[40] It is a disgrace to the Auckland Nursing Organisation to apply for strike outwhen the Nursing Organisation knows full well that the fourth defendant broke the

rules by wrongful drug administration inducing cardiac arrest. The Food and Drug

Administration and other authorities have issued explicit warnings, and Mrs Shirley

Curtis13 died from the same dangerous practice overdosing Metoprolol beta blocker

into her system.

Breach of Duty - Fifth Defendant

[41] The fifth defendant has a conflict of interest with the sixth defendant(previously employed its coroner McDowell as its Director of Proceedings). That

coroner has a conflict of interest with the first defendant (previously employed by

Meredith Connell Lawyers who have the first defendant as its major client),

13North Shore Hospital victim of Metoprolol poisoning


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resulting in a domino effect against the complaint stonewalling the right to justice

which is totally against theNew Zealand Bill of Rights Act 1990.

[42] The fifth defendant has shown unjust disparity and selectiveness which isdiscrimination against Mr. Harrisons rights and the rules and principles of natural

justice. Some complainants receive a full investigation while other deserving

complainants do not. This inconsistency and disparity is not fair on the individual

and is not good enough where human life is concerned.

[43] For example the case of Mrs Anderson was investigated in depth by the fifthdefendant, yet the door is literally slammed shut on Mr. Harrison and other justified

complainants. More than lip service is necessary for the Code to be complied withby the Health and Disability Commissioner. New Zealand has an increasing cohort

of dissatisfied people and this was not the intention of the Cartwright Report.

Progress Report Safety of Patients in New Zealand Hospitals by

Dr. Mary Seddon, MBChB, MPH, FAFPHM, FRACP those

that superficially used the language of safe and quality care but

their action plans did not give confidence .14

[44] The Health and Disability Commissioner discriminated against the legalrights of Mr. Harrison, against the purpose of the Health and Disability

Commissioner Act 1994 and against the Code of Health and Disability Services

Consumers Rights15 recommended by Judge Cartwright in her Report16 which is

enforceable in law to promote and protect the rights of health consumers and

disability services consumers.

[45] Right 10 (5) of the Code of Health and Disability Services ConsumersRights states that every provider must comply with all the other relevant rights in

this Code when dealing with complaints.17

14 Progress Report Safety of Patients in New Zealand Hospitals by Dr. Mary Seddon, MBChB,

MPH, FAFPHM, FRACP 6 October 2007. (the month and year that Mr. Harrison was an

inpatient at Auckland City Hospital)

15 Health and Disability Commissioner (Code of Health and Disability Services Consumers

Rights) Regulations 199616 The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical

Cancer at National Womens Hospital and into Other Related Matters published in 1988 17

Code of Health and Disability Services Consumers Rights


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CODE OF HEALTH AND DISABILITY SERVICES CONSUMER RIGHTS

[46] The Code must be enforced. Anything less is an effrontery to the CartwrightReport and to the Rights born out of suffering. The Cartwright Inquiry involved

Auckland Health Board, the first defendant in this case.

We must not forget that there were women who paid the ultimateprice forthese Rights. To them, and to the women who survived but had to enduremuch suffering as a result of Greens study, New Zealand owes a never-ending debt of gratitude.18

Breach of DutySixth Defendant

[47] The Coroners Act 2006 identifies deaths that must be reported to a coronerand the process for reporting and investigating those deaths. Section

13(1)(c)(iii)(v) of the Act stipulates there is a legal requirement to report to the

Police every death that appears to have been the result of medical, surgical, dental,

or similar treatment received by that person; or that appears to have been the result

of the administration to that person of an anaesthetic or a medicine (as defined in

section 3 of the Medicines Act 1981). Substantive evidence of medical malpractice

involving the first, second, third and fourth defendants was concealed at an inquest

which was defective.

[48] The sixth defendant hindered a full investigation into the circumstances ofMr. Harrisons death and concealed substantive evidence and by so doing breached

its legal duty under the Coroners Act.

[49] The sixth defendant refused forensic investigation, blocked a properinvestigation and refused Mr. Harrisons Inquest Representatives proper

opportunity to study the medical record, while distributing it to others.

[50] The sixth defendant has been proven wrong by Dr Denis Wood, ForensicBiomechanic Engineer.

18 Darise Ogden A never-ending story that must not be forgotten, NZLawyer online feature, 19

February 2010, Issue 130


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[51] If the sixth defendant had done its duty at Mr. Harrisons inquest it couldhave potentially safeguarded other victims like Ms Shirley Curtis from dying from

Metoprolol overdose cardiotoxic poisoning because a warning should have been

circulated. This shows how whitewash cover ups have a rebound effect on

innocent victims, which intensifies the importance of this proceeding to safeguard

the safety of other potential victims from the defendants dangerous practices.

[52] The sixth defendant contracted a pathologist to perform coronial postmortems who was also employed by the first defendant. Dr. Lloyd Denmark (the

pathologist) had a background of incorrect post mortem reporting which enabled a

killer to take another life in the United Kingdom and a background of disciplinary

action resulting in him being fired in Canada. He ignored evidence of brutalbashing on Mrs. Linda Grimm the victim and wrote off her death to natural causes.

So too this pathologist knew that Toxicology should have been performed on

Mr. Harrison for a forensic post mortem and he deliberately never did it. The post

mortem did not comply with forensic post mortem standards and was not a forensic

post mortem at all. The post mortem report is defective and death certification is

erroneous in fact against the legislation requirements.

[53] No photographic documentation was made of Mr. Harrisons traumaticinjuries.

[54] The coroner refused to inquire into trace evidence on Mr. Harrisons clothingand footwear that he wore at the time of sustaining traumatic injuries.

[55] Mr. Harrisons wallet, bag and credit card and some other belongings weremissing from him when the ambulance arrived.

[56] There was no neuropathologist or cardiopathologist involvement in a cursorypost mortem by Dr. Lloyd Denmark, a pathologist involved in incorrect post

mortem reporting previously, writing off wrongful death to natural causes.

[57] The contents of the Law Commission Issues Paper 23 is relevant. 19

19Final Words, Death and Cremation Certification in New Zealand, Issues Paper 23, May 2011


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Causation

[58] The application of res ipsa loquitur is relevant, but in addition substantiveevidence is in the medical record and elsewhere.

[59] On the preponderance of evidence there were multiple safety breachessuffered by Mr. Harrison in Auckland City Hospital during his admission which

would not have occurred had the defendants complied with best practice standards

and global safety warnings.

[60] The defendants refused Mr. Harrison specialist Intensivist expertise when heneeded it. Senior medical staff abandoned Mr. Harrison to junior doctors who

presumed beyond their scope of expertise. Mr. Harrison was over-sedated on

contraindicated potent cocktails of drugs and was treated like a guinea pig with no

specialist management.

[61] The Food and Drug Administration (FDA) is heeded by New Zealand.The FDA makes clear warnings with other authorities which the defendants

ignored.

[62] Misuse of drugs and not analysing and treating the root cause is not bestpractice. This dangerous practice is known to cause cardiac arrhythmias and other

adverse effects. Also, inadequate oxygen therapy causing hypoxia which is known

to adversely affect the brain and heart20, and unhygienic non-aseptic

contraindicated invasive practices which caused nosocomial pathogenic bacterial

infection and sepsis which thrives on dehydration. Also iatrogenic dehydration

caused by regular administration of laxatives coupled with under-hydration and

inadequate nourishment. Inadequate nourishment caused malnutrition. These and

other breaches of the required standard of care formed a chain of malpractice, and

details are particularised in the statement of claim.

[63] None of these safety breaches should have happened and none would havehappened had there had been a proper standard of care and treatment exercised

which was Mr. Harrisons legal right.

20Hypoxia and Hypotension are disastrous in traumatic brain injury patients and must be

prevented, as should secondary injury


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[64] No reasonable fair minded person would wish to receive the samemaltreatment. When challenged, none of the defendants or their counsel have

shown the courage of conviction to volunteer to demonstrate taking the same

deadly drug cocktail which was administered to Mr. Harrison before he died.

Nor would they come forward to be infected with nosocomial pathogenic

Gram positive bacteria through staff unhygienic practices not washing hands as

Mr. Harrison was. Every defendant and their counsel would expect to have

nourishment and fluids to maintain organ functions.

[65] Hypoxia, Dehydration, Malnutrition, Sepsis, manifest as serious effects,including cardiac arrhythmias. Instead of treating these nosocomial conditions

properly the defendants kept indiscriminately throwing more potent drugs intoMr. Harrisons system with side effects that worsened his condition and are also

known to cause arrythmias.

[66] Malpractice is not only against the law, it is a breach of patients trust.

[67] The expectation of the Emergency Consultant Specialist21 at admission on16 October 2007 was that Mr. Harrison would go on to survive to discharge. The

date for discharge was documented for 1 November 2007. Mr. Harrison died after

a deadly drug cocktail on 2 November 2007.

[68] This was aggravated by refusing important monitoring devices and refusingIntensivist specialist expertise when the signs and symptoms indicated.

[69] The substantive evidence in the medical record showing poisonous drugcocktails, overdose, times, dosage, signs and symptoms, and lack of discipline,technique and decision making, and other safety breaches cannot be ignored.

Mr. Harrison was administered a deadly cocktail of drugs and died in agony and

the defendants have no defence.

[70] The Courts have a responsibility to New Zealanders to enforce the provisionsin the Acts when governmental officers refuse to carry out their legal duty.

21Dr Robin Mitchell, Emergency Specialist Consultant, Auckland City Hospital


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CIVIL RIGHTS

[71] The purpose of theBill of Rights Actis to affirm, protect, and promote humanrights and fundamental freedoms in New Zealand and to affirm New Zealands

commitment to the International Covenant on Civil and Political Rights

and the

Act protects and preserves the right to justice. 22

[72] Lord Denning:What then does it all come to. If one Attorney General after another doesthis if each in his turn declines to take action against those who break

the lawthen the law becomes a dead letter. That cannot be.23

HIGH COURT RULES

[73] HCR15.1.7(a) Dismissal or strike out: principles and approach general:Caution in disposing of such cases on a summary basis is necessary both to preventinjustice to claimants and to avoid skewing the law with confident propositions oflegal principle or assumptions about policy considerations, undisciplined by facts.It is inappropriate to strike out a claim summarily unless the court can be certainthat it cannot succeed. The case must be so certainly or clearly bad that it should

be precluded from going forward: Couch v Attorney-General [2008] NZSC 45;[2008] 3 NZLR 725 (Elias CJ and Anderson J at paras [32] and [33]).

[74] HCR15.1.7(c) Cause of action: The power to strike out is to be exercisedsparingly and only in exceptional cases. The court must be able to say withconfidence that on the facts alleged by the plaintiff he has no case; the court must

be satisfied that it has all the requisite material to reach a definite and certainconclusion. If the court is left in doubt whether a claim might lie, or if disputedquestions of fact arise, the case must go to trial. [with emphasis] 24

[75] TheRules Committee addresses concern about interlocutory steps being usedto wear down the other side before trial.25

[76] To date counsels shopping list comprises: lawyers bullying the litigants-in-person fundamental right to justice

22 Refer to long title of the New Zealand Bill of Rights Act 1990

23 Alfred Denning, The Discipline of Law, ISBN13: 978-0-406-17605-9 ISBN10: 0-406-17605-1, at

page 14024

Sims Court Practice (NZ)/High Court Rules/HIGH COURT RULES/Part 15 Disposal other than bytrial/Subpart 1 Dismissal or stay without trial

25 The Rules Committee Circular No. 26 of 2010, item 4 page 7, minutes of meeting held on 31

May 2010


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balking at making a statement of defence within the prescribed time setin the High Court Rules when counsel has already shown it fully

understands the statement of claim

balking at Discovery unjustly not wanting the plaintiffs to file interlocutory steps yet filing

interlocutory steps themselves (do as I say but not as I do).26 wanting secrecy with interim name suppression, against open justice

and transparency and denying other patients the right to make informed

decisions

application to strike out a prima facie proceeding with substantiveevidence

unjustly wanting indemnity costs or increased costs when thedefendants know they have breached their legal duty and kept quietwhich has given rise to the proceedings.

[77] The defendants are taking advantage of self-represented litigants and this isagainst the Rules. Lord Woolfsaid:

Only too often the litigant in person is regarded as a problem for judgesand for the court system rather than the person for whom the system ofcivil justice exists.27

[78] It is fundamental to justice that matters of substantive fact and matters ofsubstantive law require a full trial for justice and justice has to be seen to be done,

especially involving matters of importance concerning harm to human life and

public interest involving safety issues.

RULE OF BIAS

[79] In domino effect the first, fifth and sixth defendants banded together with acoroner named Morag McDowell who is employed by the sixth defendant.

[80] The conflict of interest here is that Ms McDowell is the commondenominator which through her networking has had the effect of blocking

Mr. Harrisons right to justice because others have refused to use applied logic and

think for themselves. A domino effect of stonewalling has resulted and this is

illustrated in the correspondence.

26First Case Management Conference Minute of Associate Judge Abbott, 26 January 2012 at

paragraph [5]

27 Access to Justice, Interim Report p119


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[81] Mr. Harrison died iatrogenically in an Auckland District Health Boardhospital and his death was referred to the Coroner. Auckland District Health Board

was and is a major client of Meredith Connell Lawyers. The coroner sitting on the

coronial bench was previously employed by Meredith Connell, and she refused to

allow Mr. Harrisons Inquest Representatives a proper opportunity to research the

medical record.

[82] The first, second, third and fourth defendants were required to report theirbreaches of patient safety28 and kept silent, including the first defendants in-house

lawyer Mr Peter Le Cren, at an inquest which was predetermined to outcome.

[83] The fifth and sixth defendants acted against the rule of bias.[84] When the first, fifth and sixth defendants stonewalled the serious complaintand acted with disparity and bias they breached their legal duty and became

accountable under the law.29

During the Inquiry, Rodney Harrison, says Matheson, toiled for seven monthsand beyond, much of that time endeavouring to batter down the wall of silence

and denial (A Never-ending Story, p 53).

FUNCTION OF THE COURTS

[85] Upholding the rights of the individual and ensuring that government agenciesstay within the law is the function of the Courts.

30

[86] It falls on everyone, including the defendants, and including the Courts, forsocial responsibility to prevent continued non-compliance.

28major breaches to patient safety were omitted from the Serious and Sentinel Events

Report29

Sections 8, 9, 19, 27 New Zealand Bill of Rights Act 1990; Sections 5, 6, 34, 39, 74 Health

and Disability Commissioner Act 1994; Health and Disability Commissioner (Code of

Health and Disability Services Consumers Rights) Regulations 1996; sections 3, 84(2),

85(A) Births, Deaths, Marriages and Relationships Registration Act 1995; regulations 44,45, 52, Schedule 1 Misuse of Drugs Regulations 1977; sections 71, 107, 116, 405, 408

Crimes Act 196130

The Role of the Courts www.courtsofnz.govt.nz/about/system/role/overview


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[87] Prima facie evidence shows that the defendants have a legal duty, that theybreached their legal duty and that they caused morbidity and mortal harm, which

are not grounds for strike out which would be unjust.

[88] The negative effect of strike out involving a prima facie case would send anerroneous message and make a dangerous precedent for future defendants in

medical malpractice cases to misuse by indicating that the Courts allow offenders

to fiddle and skew the law to defeat accountability under the law and empower

malpractice offenders to avoid the law with impunity for which they are liable

under the Acts, which would further oppress victims rights, which is not

fundamental justice.

[89] The defendants should have reported their breaches to safety and kept silent.Dishonesty by silence is an aggravating factor.

[90] Everyone knows that the Courts must uphold the sanctity of life and giveconsideration to the safety of others.

[91] In addition, a strike out of this case of importance couldnt help but beconstrued as advocating an undesirable governmental culture of secrecy,

protectionism, systemic indifference, complacency and disparity, which is in total

conflict with the Dr Harold Shipman Reviews which castigate such practices and

which have established that people in New Zealand are at risk from defective

attitudes and processes. Strike out is inappropriate for a case of this importance

before the Court, and would be profoundly against the Purpose of the law and the

Principles of Natural Justice.

[92] These are issues of probity as well as facts and law. Litigants in personshould not be impeded from genuine pursuit of justice which is brought before the

Court for good cause after other avenues have been exhausted where officers have

refused to comply with their legal duty. Matters of importance cannot be recklessly

brushed off as frivolous or abuse of process, which are words used unwisely

too often in legal parlance by some legal practitioners to ruthlessly cut down

another party (tactic). These words, like anything else, have to be used

appropriately and not for the defendants own convenience. The defendants


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erroneous application of these words does not apply to this particular case on the

preponderance of evidence.

[93] There is nothing frivolous whatsoever about the grave matters of fact inMr. Harrisons medical record which record him screaming in pain while thedefendants refused him specialist intensivist expertise, and indiscriminately dosed

him up with deadly drug cocktails instead of giving him therapeutic treatment

which he needed. It is a cold hearted person indeed lacking in humanity who

would find the words to call this human suffering frivolous. Counsel need to be

ashamed of themselves.

[94] The Courts cannot forsake the Purpose of the law which protects andpreserves the right of the victim to justice.31

[95] Oppression is felt by a significant New Zealand public and this is relayed byHelen Cull QC32 in her Review of processes concerning adverse medical events:

Failure to report practitioners believed to be practising below an

acceptable standard: As identified under the previous section in thisreport, patients have expressed their concerns as to the way in whichtheir complaints are treated, often feeling patronised, disbelieved or

belittled. With Health professionals rarely working in isolation,

professional bodies consulted during the course of this Review havehighlighted the problem that colleagues often know of incompetent or

bad practice, but do not report it. The courage which patients

describe as being needed to take on the medical profession as they

see it, has clearly led to the perception that the consumer has not beenbelieved or belittled when complaints against senior practitioners aremade. The reaction to the complainants against Dr Fahey, is anexample of this.

RULE OF LAW

[96] The law is explicit. Under the rule of law, Government and citizens (andother individuals) are bound by the law and all are accountable under the law

without favouritism and irrespective of rank or title. An aspect of the rule of law is

access to courts that are independent and impartial.

31 Section 27 New Zealand Bill of Rights Act 1990

32 Review of Processes Concerning Adverse Medical Events by Helen Cull QC, March 2001, at

page 75


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[97] In a lecture given at Cambridge University on 16 November 2006,Lord Bingham of Cornhill, formerly senior Law Lord, spoke about the rule of law.

Lord Bingham emphasised that the core of the principle of the rule of law is that

all persons and authorities within the state, whether public or private, should be

bound by and entitled to the benefit of laws publicly and prospectively promulgated

and publicly administered in the courts.33 His lordship analysed the rule of law in

eight sub-rules, a style reminiscent of Dicey and Morris Conflict of Laws.

sub-rule 1 The law must be accessible and so far as possible intelligible, clear and

predictable;

sub-rule 2 Questions of legal right and liability should ordinarily be resolved by

application of the law and not the exercise of discretion;

sub-rule 3 The laws of the land should apply equally to all, save to the extent that

objective differences justify differentiation;

sub-rule 4 The law must afford adequate protection of fundamental human

rights;

sub-rule 5 Means must be provided for resolving, without prohibitive cost or

inordinate delay, bona fide civil disputes which the parties themselves are

unable to solve;

sub-rule 6 Is that ministers and public officers at all levels must exercise the powers

conferred on them reasonably, in good faith, for the purpose for which

the powers were conferred and without exceeding the limits of such

powers;

sub-rule 7 Adjudicative procedures provided by the state should be fair;

sub-rule 8 The existing principle of the rule of law requires compliance by the state

with its obligations in international law, the law which, whether deriving

from treaty or international custom and practice, governs the conduct of

nations.

33

Lord Bingham, The Rule of Law, (2007) 66 CLJ, 67-69 and cited by Attorney-General onbeehive.govt.nz official website of the New Zealand Government in his article entitled

Access to Justice, Legal Representation and the Rule of Law Speech to Legal Research

Foundation dated 23 October, 2009


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ACCOUNTABILITY

COLES MEDICAL PRACTICE IN NEW ZEALAND

STANDARDS AND GUIDELINES

PUBLISHED BY THE NEW ZEALAND MEDICAL COUNCIL

How medical practice standards are set by legislation:

Section 155 of the Crimes Act imposes a legal dutyon those who

undertake to administer surgical or medical treatment TO HAVE

AND TO USE reasonable knowledge, skill and care in doing those

acts., and Causing death by or as a resul t of medical or

surgical treatment may result in a conviction for murder

(if deli berate) or manslaughter.34

(with emphasis)

[98] The Acts bind the Crown.

THE DEFENDANTS

[99] The defendants have demonstrated indifference to the legal rights ofMr. Harrison and to the legal right to safety of others which is compromised by the

defendants breaching their legal duty.

[100] The defendants have attempted to skew the focus of the case toprejudice a fair trial and belittle the importance of the proceedings by resorting to

bullying, misleading, misinformed and irrelevant information which is immaterial

to this case. For example:

We also understand you made a complaint to the Cancer Societyalleging its inadequate management of Malcolm Harrisons cancer.

This complaint was not accepted. N. Fisher - counsel for thesecond and third defendants

Fact: The plaintiffs have nevercomplained to the Cancer Society and want to

know how counsel has arrived at this fiction which is unjust and targeted at

discrediting the plaintiffs. The Lawyers and Conveyancers Act (Lawyers: Conduct

and Client Care) Rules 2008 requires:

34 Coles Medical Practice in New Zealand Standards and Guidelines, published by the New

Zealand Medical Council, at section 4, page 36


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[101]A lawyer has an absolute duty of honesty to the court and must not mislead ordeceive the court.

A lawyer must not act in a way that undermines the processes of the

court or the dignity of the judiciary.

A lawyer must treat others involved in court processes with respect. 35

[102] The defendants are not concerned about the quest for truth or naturaljustice, nor the wider issues at stake of risk to public safety, but seek to avoid

accountability for themselves and are materialistically putting their own interests

ahead of the rights of Mr. Harrison and public safety.

[103] As proven, some of the nicest people and pillars of society are thebiggest offenders. It is wrong and nave to assume that because the defendants are

qualified that they did not breach their legal duty. The focus of this case is not

about opinions. It is about evidence and Acts breached.

Department of Political Science and Criminal Justice, Edinboro

University of Pennsylvaniaby A. James Fisher: [re. Donald Harvey]

While suspicions were aroused, it was hard to imagine that thisfriendly, helpful little man who was so charming and popular withmembers of his victims families, could be a stone-cold serial killer. Serial poisoning is a crime that can be detected through forensic

science. The technology is there, but until these cases are moreaggressively pursued within the health-care community, and by the

police, patients will be murdered and their deaths will be registered asnatural.

THE VICTIM

[104] The victim at the focus of this court proceeding is Mr. MalcolmArmstrong Harrison whose legal rights have been breached by the defendants who

have conspired together in a domino effect prior to and during the proceedings to

defeat the course of justice against section 27(1-3) of the New Zealand Bill of

Rights Act 1990.

35Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008


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THE PLAINTIFFS

[105] The case in the North Shore District Court36 which was heard beforethe Head Judge Buckton is not a matter for Mr Waalkens sarcastic scepticism.

Mr Waalkens is required to conduct himself towards the plaintiffs in accordancewith the Lawyers Regulations. It is a matter of fact that this case was won on its

own merit by Mr. Harrisons mother and the second plaintiff, with research

assistance by the first plaintiff in this proceeding. Various authorities who belittled

the plaintiffs like counsel are doing in this case were proven wrong.

[106] From the early 1990s to 1999 the plaintiffs engaged in a longstandingbattle with Transit New Zealand, with carefully researched facts. Because Transit

NZ Management were not being fair this climaxed with screening on Fair Go and

received widespread public support, so much so that Fair Go repeated the screening

in their Christmas highlights which received further support. This battle resulted in

a retraction from Transit NZ in 1999.

[107] In 1999 the second plaintiff took legal action against Mr Graeme RossHarrison (uncle) for his assault against a woman causing injury with photographic

evidence (kept). This resulted in a guilty plea and Police Diversion with Orders not

to re-offend, apologise to the second plaintiff, and pay a sum of $300.00 to the

Liam Williams-Holloway fund. Mr. Graeme Ross Harrison retaliated with an

unsubstantiated charge against the second defendant out of malice and without

evidence, which Judge S McAuslan at the North Shore District Court dismissed,

citing Mr Graeme Ross Harrisons appalling behaviour towards his motherwhich

the second plaintiff had taken him to task about.

[108] Theplaintiffs are not cranks or busybodies as caustically referredto by Mr Waalkens. This is arrogant disrespectful language coming from a lawyer

towards self-represented litigants. The plaintiffs will not dignify Mr Waalkens

name-calling. This proceeding is too serious forMr. Waalkens insults.

[109] The plaintiffs are principled quiet-living and law abiding citizens whohave selflessly put the rights of Mr. Harrison before their own interests and this has

been with significant self-sacrifice, and seek nothing for themselves. All of the

36Harrison v Ken Stout Motors Limited NP1159/95 Judgment by Judge B E Buckton


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second plaintiffs annual leave for several years has been totally devoted to

researching this case, including travelling overseas to consult with experts.

[110] Counsel needs to remember that the plaintiffs are not on trial in thisproceeding.

[111] A lawyer must, when acting in a professional capacity, conductdealings with others, including self-represented persons, with integrity, respect, and

courtesy.37

[112] The plaintiffs live by their conscience and not by counsels opinion andthis Right is enshrined in sections 13 and 14 of the New Zealand Bill of Rights Act

1990.38

[113] The plaintiffs have done nothing to be ashamed of and should not beoppressed by counsel for bringing this case before the Court which concerns

significant matters.

[114] A particular phenomenon always occurs if certain conditions bepresent.39 Actions cause reactions. The defendants need to look hard at

themselves.

President John F. Kennedy took time from his other responsibilities tocompose an answer to criticism directed against him.40 He did notsubmit in silence and nor do the plaintiffs towards wrongdoing. The

principle conveyed in President Kennedys words is clear.

I think your attention might well be directed to the burglar

rather than to those who caught the burglar. President JohnF. Kennedy (emphasis added)

[115] Silence is not an option where Acts are breached.

37Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

38Section 13 Everyone has the right to freedom of thought, conscience, religion, and

belief, including the right to adopt and to hold opinions without interference. Section

14 Everyone has the right to freedom of expression, including the freedom to seek,

receive, and impart information and opinions of any kind in any form.39Wikipedia on Physical Law (law of physics)

40Page 89 Macmillan, Kennedy and the Cuban Missile Crisis, Political, Military and

Intelligence Aspects by L. V. Scott


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PUBLIC INTEREST

[116] Unsafe clinical practices in Auckland City Hospital and inadequateauditing justify public interest. Contrary to what Mr. Waalkens says,

Public hospital patients and private hospital patients have equivalent right to safety.

Counsel is wrong to imply that public hospital patients have a lesser right.

COLES MEDICAL PRACTICE IN NEW ZEALAND

PUBLISHED BY THE MEDICAL COUNCIL OF NEW

ZEALAND

Preface

In the wake of the Shipman enquiry in Britain, questions have been

raised about the perceived inadequacies of self regulation. LordHaskins (GMC News February 2005) wrote that for doctors, state andself regulation must run side by side. He listed tests of good

professionally led regulation; they are: publ ic in terest must alwaystake precedence over vested interest; competence is maintained;ethical standards are upheld; the regulatory process is carried out bycompetent people; the processes must be transparent and fair (nocover ups and no scapegoating); the processes should seek to be

effective, flexible and responsive.

In New Zealand, society permits self regulation by doctors butdemands accountability in return, an accountabili ty that doctors

acknowledge by good medical practice in terms of demonstrable

performance, and main tain ing good health and proper conduct.41

(with emphasis)

[117] In addition, the Ministry of Health National Health Boardin its emailto the plaintiffs dated 12 September 2011 corroborated risk factors referred to in

the Law Commissions Issues Paper and admitted that there is no credible auditing

of hospital acquired deaths. In particular bullet No. 5 of that email states:

Nosocomial conditions are not reported in the Mortality Database,therefore each post-mortem report would need to be scrutinised by aclinical coder to ascertain if a nosocomial condition was documentedon it, and bullet No. 1 states It is not mandatory for hospitals to

provide post-mortem reports to the Ministry.42

41

Preface, Coles Medical Practice in New Zealand, published by the Medical Council of NewZealand

42 Email from Ministry of Health, National Health Board, Manager Classification &

Terminology, 12 September 2011


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[118] Without proper controls and auditing there is no knowing how manypatients have potentially been adversely affected by these defendants dangerous

practices, particularly when the first defendants LabPlus pathologists frequently

neglect to perform Toxicology testing for coronial post mortems on patients who

die in Auckland City Hospital. In Mr. Harrisons case, the defendants malpractice

was only found out by the plaintiffs careful scrutiny of the medical record.

Dr . Harold Shipman

[119] The substantive matters of fact in this case have profoundcharacteristics of the Dr. Harold Shipman case where opioids were indiscriminately

used to induce death in his victims.

[120] The methods used by Dr Harold Shipman are not remote toNew Zealand. The concern is real and acknowledged by the Law Commission and

must be treated seriously.

[121] The New Zealand Law Commission has produced a 73 page IssuesPaper entitled Final Words: Death and Cremation Certification in

New Zealand.4344(Appendix D) Much focus has been given to Dr Harold Shipman

in this document as it relates to the New Zealand context.

Harold Shipman was a respected and trusted English doctor who, in

January 2000, received a life sentence after being found guilty of 15counts of murder. He went undetected for more than two decades. Thefirst person known to have died under Shipmans care was a woman

with terminal cancer who was killed by a lethal dose of opiates.Injecting lethal doses of opiates remained Shipmans modus operandithroughout his 24 year career In her first report, published in July

2002, Dame Janet suggested the esteem in which Shipman was held inthe community, and in particular by his elderly patients, provided partof the explanation as to why these murders went undetected for so long:

It is deeply disturbing that Shipmans killing of his patients did not

arouse suspicion for so many years. The systems which should havesafeguarded his patients against his misconduct, or at least detectedmisconduct when it occurred, failed to operate satisfactorily. The

43 Law Commission, Issues Paper 23, May 2011

44 also see Dame Janet Smith, The Shipman Inquiry. First Report Death Disguised (2002)

at 14.2 [The Shipman Inquiry].


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esteem in which Shipman was held ensured that very few relatives feltany real sense of disquiet about the circumstances of the victims

deaths. Those who did harbour private suspicions felt unable to reporttheir concerns.

45

[122] Pausing on the sobering contents of this document, it is described howShipman was also held in esteem which ensured that most of his victims families

misguidedly trusted him whilst others felt unable to report their concerns. Of

particular concern is that the systems which should have safeguarded patients

against his misconduct failed to operate satisfactorily. This holds a pertinent

message for the first defendant, fifth defendant and sixth defendant.

The Issues paper continues:

Most of the deceased were cremated, a process which at that timerequired three different medical signatures: the first, that of the attendingdoctor who completed the MCCD; the second, that of a (nominally)independent medical practitioner confirming the cause of death, andfinally, that of a third doctor, a medical referee, authorising the cremationafter checking the paper work provided by the other two.

Despite this onerous three-tiered system, Shipmans actions went undetected.

(emphasis added)These procedures are intended to provide a safeguard for the publicagainst concealment of homicide. Yet, even with these procedures in

place, Shipman was able to kill 215 people without detection. It is clearthat the procedures provided no safeguard at all.46

Dame Janets far reaching inquiry called for a radical overhaul of the

English coronial and death certification systems. Many of herrecommendations for reform were echoed in the Home Offices own

parallel review of death certification, the Luce Report, which alsoconcluded that the system was fundamentally flawed. 47

The conclusion reached by these two reviews was that the checks and

balances built into the death and cremation certification processes had

been systemically undermined and no longer provided a meaningful

safeguard. In particular, Dame Janet drew attention to the fact familieshad no input into the certification process which had effectively become

45 Law Commission, Issues Paper 23, May 2011 at page 4

46 Ibid. at page 447 Tom Luce et al, Death Certification and Investigation in England, Wales and Northern

Ireland The Report of a Fundamental Review (United Kingdom, Home Office, CM3831,

2003) [The Luce Report].


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Still, the Medical Council should reappraise its procedures in the

light of it. It should not have taken journalism to expose a man

with a history such as his.51

[126] More published disturbing and revealing facts are in the Health AffairsJournal, (article also published on Medscape News):

The culture of secrecy, professional protectionism, defensiveness,

and deference to authority is central to such major failures, andpreventing future failures depends on cultural as much as structuralchange in health care systems and organizations.

Lack of management systems: Fourth, these failures often happen invery dysfunctional organizations. On the face of it, the problemsoften centre on an individual clinician or a small team and seem tocontradict the conventional belief that most threats to patient safetyresult from systems failure rather than from the individuals

behaviour. However, the organizations where these failures occurusually lack fundamental management systems for quality review,incident reporting, and performance management, or those systemshave been bypassed with ease. They frequently show littlecollaboration between managers and clinicians and a lack ofcoherent clinical leadership. They are often isolated and inward-looking organizations, unwilling to learn from elsewhere. Their staffand patients are likely to be disempowered, vulnerable, and poorly

placed to raise concerns.52

(with emphasis)

REMEDIES

[127] Section 405 Crimes Act 1961: No civil remedy for any act or omissionshall be suspended by reason that such act or omission amounts to an offence.53

[128] A standard of humility and respect should be shown by the defendantsfor the victim who suffered.

[129] The plaintiffs are acting for Mr. Harrison in this proceeding and forthe general public interest without any motive or desire for personal gain and do

not want the defendants money, indeed would not take it for it would represent

51 NZ Herald Editorial [on Dr Morgan Fahey] Doctor exposed 34 years too late, 24 May

2000

52 Health Affairs Journal. 2004;23(3), pages 103-111 Kieran Walshe and Stephen M.Shortell When Things Go Wrong: How Health Care Organizations Deal With Major

Failures, also on Medscape News

53 Section 405 Crimes Act 1961


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[136] The defendants have attempted to deflect from the focus of theproceeding with their opinions which are not evidence. The defendants know that

have breached best practice standards and ignored global safety warnings.

[137]

The defendants have vexatiously inflated the paperwork of thisproceeding, wasting the Courts time and the plaintiffs time, when they know the

matters of fact and law are a prima facie case.

MEDICAL LIABILITY

[138] What is more, the defendants are covered by medical liability insurancewhich they have not disclosed. All doctors require medical practice indemnity

which can be obtained through the Medical Protection Society, the New Zealand

Medical Professionals Medical Indemnity Insurance, or the New Zealand Resident

Doctors Associations professional liability insurance programme. The costs of

practice indemnity for hospital doctors will be met by the employing DHB.60

[139] The proceeding concerns matters of violation of the human right tojustice and patients rights, and is a matter ofpublic interest.

[140] The plaintiffs have acted reasonably and forthright to uphold theserights and have been provoked by the defendants attempts to obstruct the course of

justice. It is against fundamental justice to expect the plaintiffs to lick wounds in

silence. That expectation is oppressive.

[141] Increased costs and indemnity costs are a vindictive retaliation by thedefendants and their counsel for pursuing this proceeding, targeted to oppress and

obstruct the proceeding from going to trial which is against the rules and principles

of natural justice.

[142] The defendants have contributed unnecessarily to the time and expenseof the proceeding by taking unnecessary steps and arguments which lack merit.

60Coles Medical Practice in New Zealand 2007at page 26


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[143] It is clear from the defendants and their counsels responses that they doin fact completely understand the statement of claim and therefore should have

filed a statement of defence within the prescribed timeframe.

[144]

The defendants have never made any attempt to approach the plaintiffsto discuss the evidence or address the issues.

[145] The breaches of the defendants legal duty are aggravated by the factthat the defendants kept silent about their actions when they had a legal

responsibility and obligation to report them.

[146] The defendants argument lies with the law.

FAMILIAL AND SOCIAL RESPONSIBILITY

[147] Lord Denning:Every responsible citizen has an interest in seeing that the law isenforced and that is sufficient interest in itself to see that it isenforced 61.

[148] Just reasoning using applied logic and commonsense shows that whenthe legislation clearly stipulates that the Courts shall not empower a welfare

guardian in section 18(1)(c) Protection of Personal and Property Rights Act 1988

to interfere in withholding another persons rights in law, then for consistency the

Courts should also certainly not empower an executor of a Will to interfere in

withholding another persons right in law or hinder legal due process where there

has been malpractice against human life causing death. This would be ethically,

legally and morally wrong to impede a victims rights in this way. The Act reads:

POWERS AND DUTIES OF WELFARE GUARDIAN NO COURT SHALL

EMPOWER A WELFARE GUARDIAN, AND NO WELFARE GUARDIAN SHALL

HAVE POWER TO REFUSE CONSENT TO THE ADMINISTERING TO THAT

PERSON OF ANY STANDARD MEDICAL TREATMENT OR PROCEDURE

61 see page 122 The Discipline of Law, Alfred Denning, ISBN13: 978-0-406-17605-9 ISBN10:

0-406-17605-1


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INTENDED TO SAVE THAT PERSONS LIFE OR TO PREVENT SERIOUS

DAMAGE TO THAT PERSONS HEALTH;62

[149] Counsel has been in contact with Mr. Thomas Neil Monteith Anderson.Mr Anderson does not have supreme rights over Mr. Harrisons right to justice and

he is not above the law. Mr. Anderson cannot presume to obstruct Mr. Harrisons

legal right to justice. It was Mr. Harrison who suffered, not Mr. Anderson.

Reflecting on this, what sort of friend would ever consider hindering a victims

legal rights after he suffered so much. Once again the Wisdom ofKing Solomon is

brought to bear, along with the preservation and protection of the right to justice in

modern Common Law under theNew Zealand Bill of Rights Act1990.

[150] The Administration Act 1969 and the Health Act 1956 are not part ofthis proceeding. Even so, neither of these Acts should be permitted to negate

Mr. Harrisons legal right to justice. Mr. Harrison was a living human being whose

rights were violated. Human life cannot and should not be treated as no worth by

another person. Counsel is deflecting from the focus again.

[151] The role of an executor of a Will is to arrange for the funeral of thedeceased; make a list of all the assets; get all assets in; pay funeral expenses; paytestamentary expenses, debts and legacies; distribute the remainder of the estate to

the persons entitled in accordance with the Will and keep accounts, which are

materialistic considerations dealing with an estate.

[152] Section 18(1)(c) Protection of Personal and Property Rights Act 1988stipulates clearly the legislatures intention that no-one should be permitted to

interfere in another persons rights to stifle these type of rights. This Act is more

appropriate and logical to the case on the preponderance of evidence and has a

clear meaning.

[153] Evidence shows that Mr Anderson never made Mr. Harrisons funeralarrangements and he kept away from Mr. Harrisons inquest; Mr Anderson has

shown no interest in the facts surrounding Mr. Harrisons death; Also, evidence

shows that Mr Anderson had no intention of applying for probate and had to be

enforced to apply for Grant of Probate by the plaintiffs through their lawyers to

62 section 18(1)(c) Protection of Personal and Property Rights Act 1988


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enforce compliance with legal due process as the correspondence shows;

Mr Anderson also kept in the background and did nothing while others were selling

up and auctioning Mr. Harrisons art collection throughout New Zealand without

legal authority and this unlawful cashing in of Mr. Harrisons art works before

Grant of Probate was stopped by the plaintiffs; Also Mr Anderson has not

explained a missing clause 6 on page 4 of Mr. Harrisons Will. Considering this,

it is clear that Mr Anderson is just doing the defendants bidding. The facts show

that Mr. Anderson has actually neglected his duties as an executor.

[154] Mr. Harrison is entitled to his legal rights and Mr. Harrisonsimmediate family who care shall assert these rights for him right through.

The principles of Natural Justice and the purpose of the Acts are in agreement.

[155] It is an undisputed fact that the law upholds the sanctity of life. No-onecan diminish the legal rights of another person as this is a very grave disservice and

injustice against the very concept of justice. This is elementary.

[156] Nor can iatrogenic loss of human life caused by others be fairlycompared to proceedings involving inanimate objects or commercial affairs in a

vain bid to cite precedent.

[157] If the plaintiffs dont fight for Mr. Harrisons legal rights , no-one elsewill. The plaintiffs have brought a carefully researched case.

[158] It is a repugnant intention of counsel to attempt to cry down Mr.Harrisons right to justice after he suffered so much. If it were the other way round

and the plaintiffs did what the defendants have done counsel would be playing

another tune.

BREACH OF LEGAL DUTY

The malpractice is so extensive:

[159] Mr. Malcolm Armstrong Harrison was admitted to Auckland CityHospital with traumatic injuries on Tuesday 16 October 2007 at which time his

cardiovascular system examination was unremarkable. The evidence of a PA and


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Lateral chest x-ray taken on 21 August the same year63 shows that Mr. Harrisons

heart was not enlarged, his cardiac and mediastinal contours were within normal

limits, his lungs and pleural spaces were clear. Lipids Screen evidence on

25 August 200764 shows that Mr. Harrisons Cholesterol results were excellent with

Cholesterol serum 2.9 mmol/L (normal range < 5.0), HDL Cholesterol 0.9,

Chol/HDLChol ratio 3.0, LDL Cholesterol 1.5 mmol/L (normal range < 3.4),

Triglyceride 0.8 mmol/L (normal range < 2.0), a Troponin screen taken on

admission on 16 October 2007 was at the lower end of the normal range.65

[160] A medical report to the coroner by Dr. Cara Wasywich, ConsultantCardiologist66 at Auckland City Hospital, states that when Mr. Harrison was

reviewed by her on 30 October 2007 he was haemodynamically stable with a pulse

of 90 bpm, blood pressure of 96/68 mmHg and he was noted to be in normal sinus

rhythm.

[161] Mr. Harrison was exposed to mismanagement of junior doctors andwithholding of specialist expertise by the consultants in Ward 81 which resulted in

acquired dehydration, malnutrition, hypoxia, nosocomial sepsis and metabolic

acidosis, which cause cardiac arrhythmias. Instead of treating the root cause more

drugs were administered, masking the symptoms. This indiscriminate use of drugs

is against best practice medicine.

[162] By 21/10/2007 Mr. Harrison was known to have become very restlessand was inadequately monitored. The clinical notes from 1900 hours on

21/10/2007 through to 0510 hours on 22 October 2007 are missing from the

medical record, including clinical notes, fluid balance chart and food record chart.

[163] With the gap in information in the medical record, the medical recordresumes at 0510 hrs on 22 October 2007 where it is documented that Mr. Harrison

was found at 5.00 am by his bedside on the floor with the bedrails still up. A watch

(supervision) was supposed to have been in place and was not.

63 Reference E7082115764 Order # 07/L1878301650065

Order # 07/LU3637030500

66 received by the sixth defendant on 24 January 2008


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[164] In Room 9 at or about 2200 hrs on 21 October 2007 an ACH nursenamed Katerina Masi administered Chlorpromazine hydrochloride67 to Mr.

Harrison which is contraindicated in head injury and dehydration with recognised

adverse effects including cardiac arrhythmias, agitation and extrapyramidal effects,

and then failed to monitor Mr. Harrison during the night. At the same time she also

administered Lactulose (a laxative) and hazardously left Mr. Harrison on his own

unmonitored through the night with the bedrails raised and bed curtains pulled

concealing him from view through to the morning.

[165] Was transferred out of the ward into a room (Room 9) to make way foran acute patient. Was not properly supervised.

[166] These factors caused an unsafe environment. At 5.00 am in themorning on 22 October 2007 still unmonitored, another patient heard Mr. Harrison

groaning68 and reported it. An employee named K. Masi then pulled back the bed

curtains and Mr. Harrison was lying on the floor where he had fallen over the

raised bedrails during the night.

[167] Post fall morbidity caused a fall in blood pressure, non-cardiac relatedTroponin increase and trauma related decrease in Potassium level.

[168] No radiologic imaging scan was done to check for secondary injury.[169] A cursory examination was performed by a rotating house officer whoat the time of Mr. Harrisons admission had not completed the requirements of a

provisional scope of practice (Dr Ilia Gregory Ianovski). No senior doctor

supervising.

[170] Secondary trauma to tramatic brain injury from falling over raisedbedrails onto the floor caused increased Troponin from


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laxatives with dehydration, + starvation. Instead of diagnosing the underlying root

cause for these iatrogenic symptoms, junior staff threw more drugs into Mr.

Harrisons system causing a vicious circle of side effects and exacerbated signs

while failing to work on the underlying causes.

[171] The medical record shows that Mr. Harrisons family were notinformed about him being left alone at night in this environment with bed curtains

pulled and bedrails up or that he had fallen over the bedrails onto the floor and was

left there until 5.00 am until he was found by another patient.

[172] Leading up to this Mr. Harrison had been known to be suffering withrestlessness and dehydration by Ward 81 staff and he was given Lactulose (alaxative) and contraindicated Chlorpromazine hydrochloride (a phenothiazine with

a severe potential hazard contraindicated with Dehydration and Head Injury which

he did not need) at 2200 hrs (21/10/2007), then left alone unmonitored through the

night resulting in the fall over the bedrails where he was found on the floor at 0500

hrs in the morning on 22/10/2007.

[173] Contraindicated Chlorpromazine was continued until 23 October 2007when it was finally realised that Mr. Harrison shouldnt have been having it at all.

[174] Mr. Harrison screamed out in agony leading up to his death and wasrefused Intensivist specialist expertise.

[175] The Emergency Department released Mr. Harrison expecting him to betransferred to the Neurosurgical High Dependency Unit (HDU) for Traumatic Head

Injury management. He was transferred into the general ward instead in the hands

of junior doctors and nurses and none of the consultants (senior doctors) in the

Neurosurgery/Neurology Department showed any active interest in Mr. Harrison.

(C. Furneaux, C Baber).

[176] At the time of transfer there was no need for airway or blood pressureintervention and Sodium and Potassium levels were normal.


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[177] In Ward 81 Mr. Harrison was indiscriminately administeredcontraindicated drugs causing over-sedation and prolonged amnesia not

recommended for traumatic head injury.

[178] Inadequate oxygen therapy resulted in continued low Oxygensaturations which are detrimental in Traumatic Brain Injury and cause cardiac

arrhythmias.

[179] Ineffective pain relief, inadequate monitoring of vital signs, inadequatefluids and inadequate nourishment.

[180] Was refused nerve block.[181] The medical record shows that pathogenic Gram positive bacterialinfection was nosocomial.

[182] Blood and Urine Culture laboratory screening shows that Mr Harrisonwas not infected with bacteria when he arrived at Auckland City Hospital on

16/10/2007.

[183] No follow up Blood or Urine Culture screening was ever done afterMr. Harrison was diagnosed with nosocomial pathogenic bacterial infection, which

should have been done.

[184] Whilst there is much repetition of the presenting complaint of traumaticinjury in the medical record, there is inadequate documentation of the signs and

symptoms and multiple signatures are illegible.

[185] The drug charts are a shambles. Also Oxygen is a drug and shouldhave been entered on the drug charts and was not.

[186] Drugs, and in particular the Controlled class, were administered and notwritten on the drug chart.

[187] Early Warning Score (EWS) requiring specialist intervention wentunheeded. For example, Respiratory Rate 20/min, Heart Rate 45 increasing to

110, Temperature 38.5C, GCS (Glasgow Coma Scale) 13, Low Oxygen


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saturations decreasing to 80s. These signs required optimised treatment with

increased frequency of observations to two hourly or more frequently and specialist

expertise.

[188] Traumatic Brain Injury patients have high nourishment requirements.This was neglected with inadequate nourishment resulting in dehydration and

cardiac arrhythmias. A percutaneous endoscopic gastrostomy (PEG) feeding

device (also known as tube feeding) was not used which would have provided

adequate nutrition and prevents patients from respiratory problems from food or

fluids getting into the lungs. Placement of a feeding tube may be temporary for the

treatment of acute conditions or lifelong in the case of chronic disabilities and there

was no excuse for nutrition neglect.

[189] Dehydration was allowed to become advanced without adequatehydration, which causes bacteria to thrive and causes cardiac arrhythmias.

[190] Kept giving laxatives without adequate rehydration. This causesdehydration.

The medical record shows that on 19 October 2007 whilst receiving an

undetermined quantity of drugs and suffering the effects of malnutrition anddehydration and refused Intensivist expertise, Mr. Harrisons eyes opened with

limited engagement. Still he was refused Intensivist expertise.

[191] Developed Cheyne-Stokes which should have been acted on and wasnot.

[192] Turned Mr. Harrison from side to side with multiple rib fractures and 4x fractured vertebral transverse processes (L1-L4) without first giving him

adequate analgesia. Shouted out in severe pain.

[193] Tried to transfer Mr. Harrison out of the Department before he wasphysically ready.

[194] By 20/10/2007, being the third day in Ward 81, the medical recordshows that urine had become concentrated and Mr. Harrison was in intense pain

which was not being managed properly.


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[195] No Blood Gas testing was ever done after admission to the EmergencyDepartment. This important test was neglected, as was follow up cultures.

[196] Mr. Harrison was never reviewed by a Neurologist, even when hissigns and symptoms worsened requiring a Neurologist review.

[197] Cardiology said doesnt require specific management. Cardiologyregistrar review showed nil concerns.

[198] Inadequate bed washes.[199] Non-compliance with aseptic standards, unhygienic staff not washinghands - causing bacterial infection and sepsis.

[200] Urine sample sent for culture on 23/10/2012. Provisional findingEnterococcus bacteria - commenced on Amoxicillin, then Staphylococcus

epidermidis pathogenic Gram positive pathogenic bacteria diagnosed resistant to

Amoxicillin. The medical record shows nosocomial bacterial infection.

[201] No follow up cultures were ever taken.[202] Unhygienic staff practices caused bacterial infection, caused sepsis andexacerbated several events of agitation, Code Orange. Still no active consultant

presence.

[203] Prescribed Lorazepam. Brain Injury Medicine Principles and Practiceby Neurosurgical Experts N Zasler, D Katz, R Zafonte Page 982 states we do not

recommend the use of benzodiazepines for the treatment of acute aggression inpatients with TBI.69

[204] Was refused Otolaryngologist review for swallow and decreasedhearing.

69Brain Injury Medicine Principles and Practice by Neurosurgical Expers N Zasler, D Katz, R

Zafonte at page 982


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[205] 24/10/2007 drug-induced Heart Rate 50 per minute (too low),Temperature 37.8C, Oxygen saturation 93% on air. Cardiology not concerned.

Feels entirely related to intracranial injuries.

[206] No intracranial pressure monitoring (not even a non-invasive opticnerve bedside ultrasound scan) was ever given, even when Mr. Harrisons GCS

decreased to 8, or after cardiopulmonary resuscitation which is standard practice

with Traumatic Brain Injury.

[207] No nerve block was given when the analgesia that was given wascontraindicated and ineffective, and had adverse interactive effects.

[208] Ward 81 didnt want Mr. Harrison back after he was transferred toWard 34.

[209] On 26/10/2007 an employee in Ward 81 named Fionna Burgess statedthat Mr. Harrison did not require daily input from the specialist, medical or surgical

team when his signs and symptoms showed he did.

[210]

No analgesia whatsoever is written on the drug chart on 28 October2007 which is the day preceding induced iatrogenic cardiac arrest.

[211] Inadequate pain control of multiple rib fractures in Ward 81 asdocumented in the medical record.

[212] There is absolutely no information in the medical record from theDepartment of Critical Care Medicine.

[213] Elevation in intracranial pressure (ICP) with Acute-stage TraumaticBrain Injury is affected by over-exertion. On 18/10/2007 an Auckland City

Hospital physiotherapist (Deborah Holman) over-exerted Mr. Harrison, forcing him

to perform exercises beyond his TBI ability, resulting in severe fatigue, reduction

in GCS to 12-13 from 13-14, and requiring administration of 3 (three) litres of

Oxygen. Pain increased. All these results are detrimental to acute head injury.


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[214] When comparing information to the drug charts striking discrepanciesare evident where potent drugs were administered to Mr. Harrison which were not

documented on the drug charts.

[215] No description of injury to toenails and toes.

[216] On 17/10/2007 a Watch (dedicated observation) was required to be insitu with two hourly observations and this was not complied with.

[217] Important details about indwelling catheters (invasive) were not writtenin the medical record when they should have been, and Mr. Harrison shouldnt

have been given indwelling catheters as they were not indicated, and were only

used for employee convenience which is not a legitimate reason.

[218] Mr. Harrison had dormant acquired diabetes which Auckland CityHospital was aware of and Metoprolol beta blocker was contraindicated.

[219] No laboratory testing of secretions which should have been tested fortoxicology.

IN SUMMARY

[220] The defendants and their counsel dont want to go to trial or file astatement of defence because they have no defence to this long chain of malpractice

which is disgraceful. Times are evidently reverting back to the pre-Cartwright

Inquiry days.

[221] The defendants refused Mr. Harrison important necessaries of life, andfailed to respond to his emergency needs when patent adverse signs and symptoms

required Intensivist specialist care. Mr. Harrison was discriminated against and

treated as a stranded patient.

[222] The defendants conduct endangered Mr. Harrison and is way below thestandard of practice accepted as proper by best practice standards and global drug


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and infectious diseases safety warnings and the fifth and sixth defendants covered

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