CR175

Causation – exclusion – benefits not payable during “sickness attributable to pregnancy” – whether infection by a bacterium most probably introduced during procedures related to pregnancy is a basis for reliance on the particular exclusion?

Background

The sad circumstances of this matter were that the complainant was pregnant with twins when it was determined after a procedure known as amniocentesis that one of the twins suffered from Downs syndrome. She underwent a procedure to terminate the affected twin. Five days later the complainant was hospitalised with what the treating obstetrician and gynaecologist termed “early systemic infection”. Her condition deteriorated to the extent that a hysterotomy was performed to terminate the pregnancy.

Subsequent tests confirmed that the infection in the uterus which necessitated the hysterotomy was brought on by bacteria known as “Staphylococci”. Medical sources indicate that some species of this bacteria are normally found on the skin and throat and that “life threatening Staphylococcal infections may arise within hospitals” (Mosby’s Medical, Nursing and Allied Health Dictionary – 4th Edition).

The available information confirmed on a balance of probabilities that the introduction of the bacteria occured during one of the procedures performed.

The claim was for benefits in respect of the period of recovery after the hysterotomy during which the complainant was not able to perform her professional functions.

The insurer accepted that the infection contributed to the sickness for the period in respect of which the claim was based. The chief medical officer of the insurer, however, wrote to the complainant that “As the infection arose in a product of the pregnancy and as a result of a pregnancy complication, it was deemed to be a complication of it. Hence your claim was declined. Had the Staphylococcal infection commenced in your lungs or kidney or any other organ, unrelated to a pregnancy/conception product, it would have been considered”.

Discussion

The contractual exclusion on which the insurer relied had to be interpreted according to applicable legal principles. Contractual exclusions of this nature are strictly interpreted. It is in this respect relevant that the exclusion does not go so far as to exclude complications of pregnancy, but is strictly limited to “sickness attributed to pregnancy”. Whether specific sickness is attributable to pregnancy, is basically the same issue as whether such sickness has been caused by pregnancy.

In the consideration of this issue we also considered reports from two medical professors. One of these opinions was obtained by the insurer and the other by our office. These reports were helpful in explaining and illustrating how causation is viewed from their particular medical perspectives. From these perspectives, both professors came to the conclusion that the sickness on which the claim was based was caused by pregnancy. The central argument in both these opinions was that the particular sickness would not have arisen had the complainant not been pregnant.

This aspect was not in issue. The circumstances of this matter serves, however, to illustrate the difference between what is referred to as factual causation and legal causation. When more than one cause contributes to a specific result a legal test known as the “proximate cause test” is applied. A cause is being held to be proximate if it can be described by terms such as dominant, direct, actual, effective, determining, operative, predominant or efficient. When considering multiple causes it has to be determined whether an independent intervening cause which occurred subsequent to an original cause had the effect to “sever the causal link”.

The test is, therefore, not only whether by applying a standard of “but for” but also whether a particular cause was so closely related to the result that it can justifiably be seen as the more proximate and therefore the true legal cause of the particular result.

Legal authorities are in agreement that when multiple and/or intervening causes contribute to a result the determination of the legal cause of a particular result is usually problematic. The circumstances of this matter were found to be particularly problematic. In essence the test is whether the factual cause of a particular consequence was reasonably closely or directly linked to that consequence.

After in depth consideration and discussion of this matter at an adjudicators meeting there was (not unexpectedly) a difference of opinion on the crucial issue. The opinion of the majority of adjudicators was that the link between the bacterial infection and the sickness claimed for was so close that such infection (and not the pregnancy) was the proximate cause and therefore the legal cause in respect of the application of the exclusion. The minority view was that the medical evidence establishes factual causation and there was no severance of the causal chain. According to the minority view, the infection cannot be seen as an independent intervening cause as it was a foreseeable connected event which might well be expected to result from a complication of pregnancy.

As a result, the determination of our office, based on the majority view, was that on an interpretation of the specific contractual provisions and the application of such provisions to the circumstances of this particular matter, the insurer was not entitled to rely on the exclusion.

Result

The insurer declined not to appeal and admitted the claim.
EdB
November 2006