CR258

Disability – permanence of condition at issue – when can a policyholder reasonably be expected to undergo surgery.

BACKGROUND

The complainant had been working as an estate agent since 1990, and in 2003 took out a policy that provided benefits inter alia for occupational disability.

In September 2007 she began to suffer from frequent and unpredictable attacks of tachycardia, a paroxysmal disturbance of cardiac rhythm associated with chest tightness and dizziness, sometimes resulting in the loss of consciousness and in any event requiring numerous visits to the emergency departments of hospitals. The attacks initially occurred at least weekly, but thereafter increased in frequency. Medicinal treatment was unsuccessful, and as a result a cardiologist performed an electro-ablation procedure on the complainant on 6 October 2007. The surgery was, however, unsuccessful.

Because of the risk of dizziness and loss of consciousness, the complainant was no longer able to drive a motor vehicle, and although it took up only 20% of her occupational time, the fact that she was unable to drive had the unavoidable result that she could not acquire new clients and with that the balance of her occupational duties disappeared, being 60% administration and 20% supervision.

She lodged a claim with the insurer for the disability benefit, which the policy provided for in the event only of a total and permanent disablement. It provided, in addition, that the benefit would not be payable

“… (if) the life assured declines to undergo… medical treatment recommended by (her) own medical practitioner or (the insurer’s), which (she) could reasonably have been expected to undergo and which could substantially improve or remove the disability”.

DISCUSSION

The insurer maintained that the complainant should undergo a second electro-ablation procedure, which the complainant refused to do. In this regard opinions were expressed, not only by the cardiologist who had performed the first procedure, but also by a cardiologist nominated by the insurer and a physician specialist whose opinion was obtained by the office. All three agreed that further medicinal treatment would be ineffective, that the complainant’s condition was serious and perhaps even life threatening, and that the only prospect of curing it would be a further electro-ablation procedure, which would in any event be likely to cure it.

This raised the vexed question under what circumstances a complainant can reasonably be expected to undergo surgery for the purpose of succeeding with a claim. The question is in the end one that the office must answer, although the views of doctors are obviously relevant.

The cardiologist nominated by the insurer and the physician specialist consulted by the office both held the view that it was reasonable to expect the complainant to undergo a second procedure and although the cardiologist who had performed the first procedure considered that the complainant ought to undergo a second one, he indicated to the complainant that the decision was in the end hers and hers alone and he did not appear to think that her refusal was unreasonable. In recommending it, furthermore, he did not promise that success was certain, and implied that there were risks involved because the surgery required was at a point close to one of the heart valves.

The specialists all agreed that the complainant was totally disabled, but the real issue was whether the disablement was permanent, which brought us back to having to determine whether the complainant could reasonably be expected to undergo a second ablation procedure. The relevant considerations are of course the risks attached to the treatment, the risks attached to refusing to undergo it, the expected success rate of the treatment, how unpleasant it is, how long it will last, how unpleasant the recuperation will be and the particular patient’s attitude.

The complainant’s attitude was that she was simply not prepared to undergo the procedure again. The first one had taken six hours, was done while the complainant was awake, was stressful for her, and had not been a success. Although it was likely to cure her, there was no certainty that the second one would be successful either, and it was also apparent that a further ablation procedure bore its risks.

Although the case was close to the borderline, a meeting of the office’s adjudicators unanimously agreed that in the circumstances relied on by her, the complainant’s refusal to undergo the further procedure was not unreasonable despite the views of the doctors.

CONCLUSION

Although the insurer did not agree with this conclusion, it abided by it and met the claim.

SM
January 2009