Insurer's Refusal to Pay Accidental Death Benefits After Man's Colon is Perforated During Surgery Upheld by Court

By Alan J. Belsky
on October 1, 2013 | Comments (0)

Scalpel.jpgA death seven hours after a colon perforation would seem to qualify as accidental. But, a woman's quest to obtain $67,000 in accidental death benefits under her husband's insurance policy has been stymied by her insurer ruling against her -- explaining that perforation is a known risk of colonoscopies -- and two federal courts deciding that the insurance company had not abused its discretion in making the decision.

Sherri Thomas' husband, Duane Middleton, underwent a partial colonoscopy in February 2010. During the medical procedure, the cecum - lining -- of his colon was unintentionally perforated, resulting in his death a short time later.

The amended death certificate listed the manner of death as an accident and the cause of death as acute peritonitis due to perforation of the cecum during a colonoscopy, with hepatitis C, cirrhosis of the liver, hypertension, and chronic renal insufficiency as other significant conditions contributing to his death.

Middleton was on a liver transplant list at the time of his death. Because of a family history of colon cancer, he underwent the colonoscopy as part of his workup for an anticipated liver transplant. The colonoscopy procedure report lists "Screening\family history colon cancer" as the preoperative diagnosis.

Thomas filed a claim with United of Omaha Life Insurance Company for $67,000.00 in accidental death benefits under the policy.

Under the "Accidental Death and Dismemberment Benefits" provision, the policy provided that United of Omaha would pay a "Loss of Life" benefit if Middleton was "injured as a result of an Accident, and that Injury is independent of Sickness and all other causes . . . ." The policy defined the term "accident" as a "sudden, unexpected and unintended event, independent of sickness and all other causes. Accident does not include sickness, disease, bodily or mental infirmity or medical or surgical treatment thereof, bacterial or viral infection, regardless of how contracted."

After reviewing the medical documents in the claim file, United of Omaha's Medical Director, opined:

This seems very straightforward.

He underwent screening colonoscopy to look for colon pathology in preparation for liver transplantation. Bowel preparation was poor and the cecum was perforated as a result of this medical/surgical procedure. There was no evidence of underlying colon disease prior to the colonoscopy. The perforation caused peritonitis, and he died of the resulting bacteria sepsis.

The perforation did not aggravate his existing health condition.

His health condition did not aggravate the effect of the perforated cecum and peritonitis.

Colon perforation is a known risk of colonoscopy and would have been noted in the consent form.

As a result, United of Omaha denied the claim for accidental death benefits upon initial consideration of the claim and upon administrative appeal.

In its final decision letter on administrative appeal, United of Omaha said:

Ms. Thomas, we understand that Dr. Weedn indicated that Mr. Middleton's death was an accident and the death certificate was amended to reflect this. However, perforation is a known risk of a colonoscopy and therefore, the perforation is not an accident as defined under the [P]olicy. Also, Mr. Middleton died of bacterial sepsis. Under the [P]olicy definition of accident it specifically states accident does not include bacterial or viral infection, regardless of how contracted

In summary, Mr. Middleton's death was not a sudden, unexpected or unintended event, independent of sickness and all other causes. Therefore, we are unable to provide benefits under the Accidental Death and Dismemberment portion of [the Policy].

The United States District Court for Maryland granted summary judgment to United of Omaha, explaining that the legal standard for reviewing the insurer's decision was abuse of discretion and that United of Omaha had not abused its discretion in making its decision. United of Omaha acted reasonably in concluding that Middleton's death was not an accident as that term was defined in the policy, the court said. The evidence supported the reasonable conclusion that he died as the result of medical or surgical treatment for liver disease, which was excluded from the definition of accident under the plain language of the policy.

Thomas appealed the decision. The appellate court affirmed, examining the administrative record and determining that Thomas' claim that the record lacked substantive evidence to conclude that Middleton's colonoscopy was ordered and performed because of his underlying liver disease.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for the victims of medical malpractice and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.

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