Marlena’s estate complained to us because her insurer declined the estate’s claim under her personal accident policy

What happened?

Marlena’s estate complained to us because her insurer declined the estate’s claim under her personal accident policy.

Marlena had undergone minor surgery on her lower back. The operation appeared uneventful. However, during recovery, Marlena complained of tightness in her neck and eventually she was rushed to intensive care where she died.

Her insurer declined her estate’s claim, because surgical complications are always a risk and it didn’t think they could be considered accidental.

How we helped

We looked carefully at the medical evidence. The coroner’s report concluded that the cause of death was haemorrhaging from a spinal artery. Other supporting medical evidence suggested the surgeon negligently tore Marlena’s spinal artery during her surgery.

We felt that this wasn’t a natural consequence of the risks inherent in surgery. Something had gone wrong and this wasn’t what any of the parties to the surgery had anticipated.

We didn’t think the injury was the natural result of the procedure, because it was solely and directly caused by external, violent and visible means – which the policy required. So we felt the injury fell within the scope of the policy.

Our decision

We told the insurer to pay the estate’s claim for the accidental death benefit under Marlena’s policy. We also told the insurer to apply 8% simple interest, less any tax due, from the date of Marlena’s death to the date of settlement.