Just days before his 50th birthday, ultra-marathon runner Ian Sheppard succumbed to a cancer that should have been treated much earlier.
The South African emigrated to New Zealand in 2006 with his wife, Helga, and settled in Thames, where he worked as a mechanical engineer.
Super fit, Sheppard competed in events up to 100km, did not smoke and rarely drank apart from the odd beer.
But in 2008 he went to his GP, Nicolaas Burnett, concerned about a mole on his back.
Burnett was aware that Sheppard had already had a melanoma removed in 1990, so excised the growth and sent it for tests, which confirmed it as another melanoma.
Knowing that a wider excision was usually recommended for melanomas, Burnett rang the laboratory to confirm the result but was advised that the excision was complete so decided no further follow-ups were required.
But in 2009 Sheppard discovered a lump in his left armpit. This was also removed and a biopsy confirmed it was malignant, with more tests finding the cancer had spread to his brain, liver and lung. He died six months later.
Two years after Sheppard's death, the health and disability commissioner ruled that Burnett had failed to provide proper care by not organising for follow-up treatment. He has since retired from the profession.
Mrs Sheppard lodged a treatment injury claim with ACC, but was refused after the corporation decided it could not be conclusively proven that a proper follow-up would have prolonged her husband's life.
ACC relied on the opinion of a pathologist but in her appeal Mrs Sheppard included evidence from top melanoma expert Richard Martin.
Martin wrote that if Sheppard had received the proper treatment at diagnosis, statistically he would have had at least a 91 per cent chance of surviving for more than five years.
The case went to court and Judge David Ongley has ruled that while the situation was unfortunate, Martin's evidence went no further than to prove a loss of chance.
"It is deeply distressing for the family that there should have been a treatment failure resulting in loss of a perhaps valuable chance at recovery or even temporary recovery. Regretfully, that is not enough in this case to establish accident compensation cover."
Mrs Sheppard said that since her husband's death she had spent more than $12,000 on funeral and legal costs.
No amount of money would bring him back, but she found it grossly unfair that she was being ruled against even though there had been a proven mistake by the doctor.
"I don't want his death to be in vain, you know? To say I was gutted when I read the decision would actually be an understatement."
Yesterday, Burnett said he had done nothing wrong, but had apologised as instructed.
He had taken the laboratory pathologist at his word after double-checking with him that the excision width had been correct.
"From my point of view I took all the precautions I think were expected of me, but once you're in the system, everyone is covering their butts and someone has to pay the price.
"After a life in medicine, this is the kind of thing that you don't want to happen to you. In my mind, I'm convinced I'm probably not the best defender of myself because I'm too genuine, too honest."
Lawyer John Miller, who represented Mrs Sheppard, said it was disappointing the decision had gone against them despite such strong evidence from an expert.
He was willing to take an appeal to the High Court pro-bono as he believed the law was unfair.
The Court of Appeal decision that was relied upon in these types of cases looked unfavourably on a "loss of chance" and the only way that would change was if it was challenged at the highest level.
An ACC spokesman said it accepted the findings, but declined to comment further.
- The Dominion Post
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