'Not an insured accident' suit over post-surgery infection fails twice

Background

After joint surgery to treat pain, our client developed an infection that worsened and required major revision surgery, leaving a lasting impairment of joint function. When our client claimed under an accident insurance policy, the insurer sued for a declaration that it owed nothing.

The issue

Whether the post-surgery infection and resulting impairment were a 'sudden, accidental and external' event covered by accident insurance, or a foreseeable complication of surgery.

Our approach

The insurer argued it was merely a complication our client had been warned about before surgery. Our client disputed this; the materials the court relied on included the operating hospital's own opinion that the infection most likely occurred during the operation.

The court's reasoning

The first-instance court found that the infection was caused by an external factor, the surgery, with no sign of constitutional causes, and that the general wording of the consent form did not mean our client could foresee major revision surgery and impairment. On appeal, a court-appointed medical reviewer took a different view, but the court declined to rely on it because the reviewer had not been given key facts, such as another patient operated on the same day also becoming infected, and upheld the first ruling.

Outcome

The first-instance court dismissed the insurer's claim and the appeal court dismissed its appeal, with costs on the insurer.

What this case means

Surgery-related harm can qualify as an insured accident depending on the facts. Even an unfavorable expert opinion can be overcome by examining the materials it was based on.

This is the outcome of an individual case and does not guarantee the same result in similar matters. Some facts have been generalized to protect the parties involved.