CR176 Exclusion – causation – death resulting from pre-existing condition excluded
Exclusion – causation – death resulting from pre-existing condition excluded – whether death was caused by the insured’s pre-existing condition or by an intervening cause.
The insured, having bought a motor vehicle, took out a policy providing life and disability cover. The policy excluded cover for death arising directly or indirectly from any physical defect or infirmity of which the insured was aware and which preceded the issue of the policy.
Some time prior to the application for insurance the insured was diagnosed with diabetes. The diabetes necessitated a subsequent renal/pancreatic transplant. Two months after this operation, the insured underwent a gall bladder operation which was unrelated to the diabetes. After this operation infection developed and the insured died. According to the insured’s personal medical attendant, Dr A, the immediate cause of his death was septicaemia which followed on the insured’s gall bladder operation. She further explained that the medical conditions that contributed to the death were diabetic nephropathy and the combined pancreas kidney transplant.
The insurer denied liability on the policy contending that the insured’s death was “directly or indirectly” related to his pre-existing diabetic condition. The insured’s widow complained.
We were confronted with a difficult question of medical causation. As is our practice in cases of this nature, we sought the opinion of an independent medical expert, Dr B. According to him the insured’s condition of diabetes led to the renal/pancreas transplantation which in turn necessitated the use of drugs to prevent rejection. These drugs rendered the patient vulnerable to bacterial infection. The gall bladder operation which followed within two months of the transplant was complicated by sepsis which was the direct cause of the death. The sepsis only had this disastrous effect because of the prior use of the immune repressing drugs.
We confronted the complainant with this medical opinion. She thereupon submitted an amended report from Dr A. Dr A changed course by stating that the insured died because of the infection consequent on his gall bladder operation which had nothing to do with the insured’s diabetes. There was no effective treatment for the septicaemia caused by the particular organism. In her view: “Septicaemia due to this organism, because of the absence of effective therapeutic options, would be fatal in any person.”
Dr A’s latest report caused us to obtain yet another medical opinion, this time from Dr C. Dr C, like the two other doctors, pointed out that the eventual or direct cause of the death was the insured’s infection with pseudomonas. He went on to explain that this infection was a complication of the gall bladder operation and not proximately related to the original condition of diabetes. He noted that the bacterial strain involved was resistant to antibiotics. In his view the death really resulted from complications consequent on the gall bladder operation and not from the pre-existing condition of diabetes.
The decisive question was whether the pre-existing condition of diabetes could be regarded as having materially contributed to the insured’s death whether directly or indirectly. After weighing all the expert opinions we came to the conclusion that the dominant cause of insured’s death was the infection consequent on the gall bladder operation. It was seen as a supervening cause (novus actus interveniens) which broke the causal chain between the condition of diabetes and the eventual death and so became the most dominant causal force.
By virtue of a majority decision at a meeting of all the adjudicators we ruled in favour of the complainant. The insurer decided not to appeal and paid the claim.