Andrew’s admission to hospital
On 25 February, Andrew was admitted to his local hospital and diagnosed with a brain tumour. Andrew was referred to a neurological specialist on 4 March 2013, underwent surgery to remove the brain tumour on 5 March, and on 6 March became drowsy and developed problems with his sight.
On 8 March, a scan revealed that Andrew had developed a haematoma and he underwent a further surgery to remove this. On 11 March Andrew’s health deteriorated and he developed a pulmonary embolism (PE).
Sadly, on 12 March, Andrew passed away. The death certificate stated that the causes of death were the PE, the brain tumour, chronic atrial fibrillation (abnormal heart rhythm), and asthma.
Andrew’s family submitted a claim to Andrew’s insurance company (Health Insure Limited) for a lump sum payment of $285,000 under accident policies held by Andrew prior to his death. Both Andrew’s family and Health Insure Limited agreed that the family’s claim could be limited to $200,000 to fit within FSCL’s jurisdictional limit.
The insurance policies
The key section of the insurance policies said that Health Insure Limited would make payment of a lump sum if a person sustained a ‘covered injury’ as a result of an accident, which is the sole cause of the insured’s death.
A ‘covered injury’ was defined in the policies as ‘bodily harm resulting from an accident due to violent, external and visible means, but does not include sickness, post-traumatic stress or a pre-existing injury condition’.
In summary, for there to be cover under the insurance policies, Andrew’s death needed to result from bodily harm which itself had to result from an accident due to violent, external and visible means. The bodily harm needed to be the sole cause of death.
Health Insure’s view
Health Insure declined the claim. Health Insure argued that developing a PE after surgery is one potential consequence of having surgery, so the fact that it happened meant there was no “accident”. Health Insure also argued that the death certificate listed four causes of death, meaning the PE could not be considered to be the ‘sole cause of death’.
Health Insure also argued that the PE was the direct result of surgery for the brain tumour (a sickness) meaning there was no cover under the policy.
Overall, Health Insure Limited was of the view that Andrew passed away following a complication of surgery required to treat a sickness.
Andrew’s family’s view
Andrew’s family argued that the PE was the ‘bodily injury’ and that the bodily injury resulted from an ‘accident’ because developing a PE was a highly unexpected outcome of the surgeries. They also argued the fact that a PE is a potential outcome of surgery, does not mean that outcome is ‘expected’. Further, the family argued that statistics show that the number of people who develop PE after brain surgery and die as a result, is only between 0.45% and 2.5% of patients. A reasonable person would not consider an outcome that occurs between 0.45% and 2.5% of the time to be an expected outcome.
Andrew’s family also noted that the Accident Compensation Corporation made a payment on the basis that the development of the PE was not an ordinary consequence of the treatment Andrew was receiving for the brain tumour.
We found that the complaint should not be upheld.
In relation to the statistics provided by Andrew’s family about the likelihood of Andrew’s death, we said that there was a chance (albeit a very small chance) that the events which transpired could happen. However, the central issue for us to consider was not the chance of Andrew dying in the circumstances he did. Rather, the central issue for us to consider was whether the cause of Andrew’s death, the PE, resulted from an ‘accident’. That is, we were looking at ‘accidental means’ as opposed to an ‘accidental result’.
Did the PE result from an ‘accident’ due to violent, external and visible means?
We reviewed the medical evidence. The surgeon reported that the PE developed after the second surgery to evacuate the haematoma. The haematoma was caused by a vessel going into vasospasm during the first operation.
The surgeon went on to report that in his opinion he did not think the haematoma contributed to Andrew’s death because he underwent surgery to remove it and recovered well. The surgeon said that in his opinion the PE resulted in Andrew’s death and having had two operations under general anaesthetic in a short period of time would have contributed to that.
From this evidence, we concluded that it was the two surgeries which resulted in Andrew developing the PE. We needed to determine whether the two surgeries could be said to be ‘accidental’ and ‘violent, external and visible’.
Violent, external and visible
In our view, the surgeries could be considered violent, external and visible. In the English case of Hamlyn v Crown Accidental Insurance Co, Mr Hamlyn leaned forward to reach a child’s marble as it rolled away and in doing so wrenched his knee causing damage to cartilage. Those events satisfied the test of ‘violent, external and visible’. As the threshold is very low, we considered the surgeries Andrew underwent to be ‘violent, external and visible’.
The case of Fenton v Thorley & Co Limited defines an accident as an un-looked for, untoward or not expected or designed event. As the surgeries were intended actions by the surgeons there could be no claim that the surgeries were accidental.
We also looked at the landmark New Zealand case of Groves v AMP Fire & General Insurance Co (NZ) Ltd which had similar but not identical facts to Andrew’s case. In Groves, Mrs Groves was undergoing a hysterectomy operation. Nobody was aware that Mrs Groves was allergic to anaesthetic and when she was injected, she went into anaphylactic shock and died. In Groves it was the anaphylactic shock which was the bodily injury, akin to the Andrew’s PE.
However, Andrew’s circumstances were different from those of Mrs Groves. In Groves the judges said that the unexpected, unintended and unknowable circumstances, the fact that Mrs Groves was allergic to anaesthetic, was an accidental event/circumstance which resulted in the bodily injury, causing death.
In Andrew’s circumstances, there was no accidental event or events leading to the PE. The two surgeries which together caused the PE were intended events and could not be considered ‘accidental’.
Although we sympathised with Andrew‘s family’s situation following his death, the insurance policy did not provide cover in the circumstances of the claim.