Seventh Circuit Awards Accidental Death Benefits
The United States Court of Appeals for the Seventh Circuit issued a decision in Prather v. Sun Life and Health Insurance Company on December 13, 2016.
On July 16, 2013, Jeremy Prather had torn his left Achilles tendon playing basketball and after consulting with an orthopedic surgeon he scheduled surgery for July 22, 2013. The day before surgery Prather called the surgeon’s office to complain of swelling in the lower part of his leg and he reported that an area of the calf was both sensitive and warm to the touch. The surgeon told Prather to elevate the leg. Surgery the following day was uneventful and Prather returned to work on August 2. However, four days later he collapsed at work, went into cardiopulmonary arrest and died the same day as a result of a deep vein thrombosis in the injured leg that had broken loose and traveled to the lung causing pulmonary embolism, cardiac arrest and death.
The plaintiff’s decedent applied for accidental death benefits under an employer group policy issued by Sun Life and governed by ERISA. Sun Life denied coverage relying upon policy language that limited coverage to “bodily injuries . . . that result directly from an accident and independently of all other causes.” (Emphasis added.) Sun Life said that Prather’s death had not been the exclusive result of an accident and that it had also been the result of complications from surgical treatment. A physician’s assistant (PA) employed by Sun Life reviewed the claim and opined that deep vein thrombosis and pulmonary embolism are risks of surgery and that even with conservative treatment, such as immobilization of the affected limb, the insured had an enhanced risk of a blood clot. This was Sun Life’s only medical evidence. Sun Life denied the claim on the basis that Prather’s death was a result not just of the accident but also of independent events, namely the surgery and maybe also or instead the immobilization of his leg before surgery.
Writing for the Court Judge Posner noted that Sun Life’s interpretation that that death “independently of all other causes” requires the beneficiary to disprove any possible alternative cause of death. Posner says that can’t be right because it would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death merely because there some speculative possibility that something else may also have played a role. That would make many accident insurance contracts illusory because often there is an interval between the accident and a resulting injury and a possibility that something in that interval caused or aggravated the insured’s injury. Here, since the accident alone may well have caused the blood clot that killed Prather, the insurance company had to present some evidence that the surgery had been a cause of Prather’s death, and it presented none. Posner rejected the opinion of the physician’s assistant since all it proved was that the surgery might have been a cause of Prather’s death.
A forensic pathologist who conducted a post-mortem examination did not attribute death to the surgery and the relevant medical literature indicates that there is a significant incidence of deep vein thrombosis (the final trigger of the pulmonary embolism) following the rupture of an Achilles tendon even if the tendon is not operated on.
Deep venous [vein] thrombosis (DVT) is a significant source of morbidity and mortality and is associated with many orthopedic procedures. Previous studies have reported highly variable DVT rates in patients with Achilles tendon rupture undergoing operative and nonoperative treatment. We performed a retrospective chart review for all patients who underwent Achilles tendon repair at our institution from January 2006 to February 2012. Patient data were collected from the electronic medical record system. A total of 115 patients were eligible for the present study. Of these patients, 27 (23.47%) with a surgically treated Achilles tendon rupture developed a symptomatic DVT either while waiting for, or after, surgical intervention, with approximately one third of these diagnosed before surgical intervention. … We have shown a high incidence of DVT after Achilles tendon rupture. We recommend a high level of suspicion for the signs and symptoms of DVT during the follow-up period.
Makhdom AM (Asim M.) et al., “Incidence of Symptomatic Deep Venous Thrombosis After Achilles Tendon Rupture,” 52 Journal of Foot & Ankle Surgery 584 (2013) (emphases added).
The Court also rejected Sun Life’s contention that the insurance contract gave it “discretion to decide what evidence was sufficient to demonstrate a disability” since that too would amount to the insurer having carte blanche to decide whether or not to honor its contract. Posner was also not persuaded by Sun Life’s argument that “the evidence in this matter makes clear that Mr. Prather’s surgical treatment contributed to his death[,] . . . indeed, caused the forming of a blood clot in Prather’s deep veins.” The evidence did not make that clear, all it shows is that death followed both the surgery and the accident that preceded surgery. The medical literature describes that an accident alone can create a fatal blood clot and so far as it appears, could have done so in this case. The day before surgery Prather reported symptoms to his surgeon that suggests that deep vein thrombosis might have formed by then. Since Sun Life failed to make any plausible showing that the surgery, rather than the accident that necessitated the surgery, caused his death, judgement in favor of the defendant was reversed.
Sun Life’s application of the exception (“and independently of all other causes”) and the lower court’s adoption of it, raises the question: how does an insured demonstrate to the insurer that bodily injuries resulting directly from an accident and are also independent of all other causes? This requires the beneficiary to disprove any possible alternative cause of injury or death, an unrealistically or even impossibly high burden. Otherwise it gives the insurer carte blanche to reject coverage in which an accident is a cause of death merely because there is some speculative possibility that something else may have played a role. Posner rejected Sun Life’s interpretation primarily because Sun Life had no other evidence to offer except the physician’s assistant opinion that surgery or leg elevation may have been the cause of deep vein thrombosis.
A review of the lower court’s opinion reveals that it found that Sun Life had a reasonable basis to deny benefits because Prather’s death did not result directly from an accident and could be attributed, at least in part, to complications from surgery. The lower court further acknowledged the PA’s finding that such complications contributed to Prather’s death. It is noteworthy that the lower court mentioned the post-mortem report in the fact summary but did not comment further on the forensic pathologist’s opinion that death was not attributed to the surgery. The opinion of the physician’s assistant, and not the forensic pathologist, was enough for the lower court to side with Sun Life. Surely the Prathers deserved more.
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