201 P.2d 949 | Utah | 1949
Lead Opinion
In this action, plaintiff, as widow of the deceased seeks to recover double indemnity under the terms of an insurance policy issued upon the life of the deceased, the latter having died as the result of post-operative surgical shock. The appropriate phrases of the policy read as follows:
"Upon receipt of due proof * * * that the death of the insured occurred * * * as the result of * * * bodily injury, * * * which is effected exclusively and wholly, by external, violent and accidental means, of which there is a visible contusion or wound on the body * * * and that such death occurred within ninety days after sustaining such injury, the Company, subject to the limitations hereinafter set forth, will pay double the face amount of the policy, or Four Thousand Dollars, instead of the face amount of the policy." (Italics added.)
"Risks Not Covered — This benefit shall not be payable if the death of the insured results directly or indirectly, from * * * physical or mental infirmity; * * * illness or disease of any kind; * * *." *569
The lower court took the view that the death was the result of physical infirmity or illness or disease and did not find that it resulted from accidental means within the quoted terms. There are two assignments of error, one attacking the failure to find accidental means; the other attacking the finding pertaining to physical infirmity or illness or disease.
The only testimony in the case is that of two doctors, witnesses on behalf of the plaintiff, one of whom testified by deposition.
The nature and development of post-operative shock was described as follows:
"Post-operative shock usually results from severe trauma on the sympathetic nervious system of the body, also loss of blood, loss of bodily fluids in the way of perspiration. Those are probably the main causes of the post-operative shock. Did you mean what goes on from then on?
The deceased was operated upon twice — once in 1944, and once in 1945. The first was for a perforated duodenal ulcer, and he had an abnormal appendix which was also removed. Immediately after the operation he became critical and suffered shock, or became cyanotic. The second was for post-operative ventral hernia, which apparently *570 developed from the first operation. Deceased was a chunky type, muscular individual about five feet ten inches in height, weighing some 230 pounds, with a very large chest and a very highly developed muscle girdle and short neck — described as bull-necked. He was 46 years of age. He wore an abdominal support which caused him discomfort. Before the second operation he was completely examined to ascertain if his physical condition was safe for an operation of that nature. The examination was complete, including blood tests, X-rays, metabolism tests, and he was found to be fit. The hospital and procedure were standard. But, in attempting to make an incision from the lower border of the ribs to well below the naval it was found that the intestines had adhered to the anterior wall, and there were adhesions between the protruding bulge of intestines and the next layers. There were seventeen difficult and critical adhesions to be overcome, which required considerable time and great care. If not remedied they would stop the bowel passages. The operation took six hours. There was a great deal of loss of blood and body fluid. No mishaps occurred. When the operation was finished there was no evidence of shock or unusual reaction. The patient left the operating table at 5:00 P.M. and his condition showed good until about 1:30 A.M. The nurse then called stating that his breathing was not good, and she thought he was quite cyanosed. After 1:30 there was no other reported change. At 10:30 A.M. the next day he was in shock and unconscious. At 1:05 P.M. he died, still in shock.
Upon these facts as a foundation, the testimony of the two doctors was centered upon the anticipatory character of death from post-operative surgical shock. Generally speaking the testimony was to the effect that it might occur in any operation, although it is not ordinarily expected. It is, however, considered as a possibility in any operation — the more extended the operation, the greater the likelihood. The doctor who performed the operation spoke of *571 the deceased as a poor surgical risk, when the adhesions were found. The other doctor in answer to a hypothetical question covering these facts spoke of them as making a rather bad prognosis.
We shall now examine the law.
It should be kept in mind, that in review of the decision of the lower court, we do not make an effort to decide the factual issues as if we were the trial judge. We look only to see if his conclusions are sustained by competent evidence.
The most recent case we have is Tucker v. New York LifeIns. Co.,
In the present case the evidence shows that the deceased suffered shock after the first operation, which was a less complicated operation. In the second operation it was discovered deceased's condition was such that the operation was going to be long and hard. It is true, of course, that his loss of the energy or ability to withstand shock is not evidenced by some physical object like the weakened aorta in the Tucker case, but it can be ascertained by comparison between operations. If the first or lesser operation was productive of shock, it is very likely that the second or greater operation will magnify that shock accordingly. There is no escaping the conclusion that there is a disclosed connection between such a physical disability as weakened his resitance to shock and that shock, even though the disability is not capable of physical identification.
The case of Handley v. Mutual Life Ins. Co.,
It would seem that if death was an unexpected result of an operation the efficient cause and effect relationship is not between the intended act — the operation — and the death, but between death and some other intervening cause. In the Handley case such an independent cause was capable of physical ascertainment — the blood clots. The cause for them was unknown, but they were not considered as anything necessarily inherent in the nature of the operation. A failure to link them as necessarily inherent in the operation justified the determination that they were accidental — that they were the independent link in the general chain of causation which was violent, external and accidental.
May the present Kellogg case be set up in a comparable way?
The doctor's description of the nature and development of post-operative shock (see above) indicates clearly that it is a progressive thing, becoming more and more dangerous with that progression. The layman knows, without *573 expert testimony, that shock of some degree is attendant upon any substantial operation, and this is confirmed by the medical testimony in the present case. The question thus resolves itself to one of whether or not the accidental character of the death should be measured by the susceptibility of the injured person to the dangerous degree of shock — the shock from which death may result or has resulted. In other words, if Mr. Jones is an individual whose sympathetic nervous system is sensitive to pain and physical reactions, is post-operative shock as to him non-accidental because it is to be anticipated? On the other hand, as to Mr. Smith, is it accidental because his sympathetic nervous system is phlegmatic and not easily upset? It is hard to escape such conclusions knowing as we do that the anticipatory nature of the result may not be the same in all cases. We are not, of course, justified in laying down an inflexible principle that death from post-operative shock can never be accidental death.
It is fair to say that in cases where intervening causes between an operation and death are impossible of segregation and definite identification, the question of accident lies in the question of the anticipatory nature of the results, which in turn should be measured by the susceptibility of the deceased to such results. If the history of the deceased's health and physical condition before and at the time of the operation are such that an operation of standard requirements for the care of that ailment would not, in the average individual with similar physical ailments and condition, have produced a fatality, then the death is accidental. Specifically applied here: Deceased's previous experiences with shock from a lesser operation coupled with his physical condition, including that disclosed upon the initiation of the second operation, viewed in the light of the nature and the length of time required to accomplish this second operation, are all facts which support the belief that death was not accidental. Post-operative shock to a dangerous degree was very likely to him. He was a poor *574 risk, as one doctor indicated. His history made a bad prognosis, said the other.
These principles we have discussed are illustrated in the case of Cooper v. New York Life Ins. Co., 1947,
We are of the opinion that there is evidence to support the lower court's findings, and to justify his refusal to classify the death as accidental.
Judgment affirmed.
Concurrence Opinion
I concur. Here, by its decision, the trial court on conflicting evidence found as a fact that the shock was not sufficiently *575 unexpected to constitute an accident. The evidence was sufficient to support such a finding and probably was sufficient to support a contrary finding.
As pointed out by Mr. Justice Wolfe this case is distinguishable on its facts from Handley v. Mutual Life Ins.Co.,
While the Handley case can be distinguished from this case on the ground that there an unexpected, distinct physical change preceded and caused the injury and death, and that here the shock which caused it is more in the nature of a disease, symptomatized by complete exhaustion and debilitation, the case of Richards
v. Standard Accident Ins. Co.,
The fact that a person is injured or killed by a disease does not necessarily preclude an accidental cause. This court has repeatedly recognized this in Workmen's Compensation cases. SeeAndreason v. Industrial Commission,
Concurrence Opinion
I concur in the result. I am not so sure that I have fathomed the meaning of some of the statements in the prevailing opinion. I shall state briefly my own grounds for concurring in the result.
Post-operative shock in some degree is always to be expected, but death from the operation is not 1 ordinarily to be anticipated. The fact that death unexpectedly ensues from shock, itself due to an operation, does not make that death accidental.
In the case of Handley v. Mutual Life Ins. Co.,
In the instant case, post-operative shock was expected. It was a concomitant of the operation. But in this patient it was not expected to the degree which would cause death. And the pathological cause of the phenomena which caused the shock and consequent death is not physically traceable 2 as in the Handley case. Evidently the patient suffered extreme debilitation — a loss of vitality to a point where the spark of life was altogether extinguished — death occurred by a process more in the nature of a disease than an accident as such term is thought of by the average intelligent layman. If death were due to post-operative pneumonia, for instance — I doubt that we would hold it to be an accident despite the fact that it was unexpected. While the line is a fine one and perhaps not logical — the law not being logic — there is a practical difference between those cases on the one hand where the unexpected course of the series of successive cause and effect relationships stemming from the operation down to the death are each definite and certain in character and, on the other hand, where the series runs into a disease or debilitation which itself is the immediate cause of death. At bottom, this distinction may rest on the relative sharpness of the successive pathological phenomena lying between the operation and its ultimate consequence — death. In one case each event and its known result in the series is local and definite. In cases like the instant case, shock is expected but not to such extent as to overcome all vitality, and the pathological nature more comparable in its generality to the ravages of a disease.
LATIMER and McDONOUGH, JJ., concur in the opinion of WOLFE, J. *578