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Only an Accident: Courts Judge Fatal Colonoscopy Not Worthy of Payout

Only an Accident: Courts Judge Fatal Colonoscopy Not Worthy of Payout

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Previous stories in William Heisel's "Only an Accident" series include:

Only an Accident: Fatal Colonoscopy Leaves Family Stunned and Unpaid

Only an Accident: Insurance Claim Denied After Fatal Colonoscopy

When in college and heading home for Christmas break one winter, I hit a patch of icy road. I pumped my breaks – as every good Montana driver confronted with ice knows to do – attempted to steer into the snow along the shoulder and, instead, slid off the road and through a barbed wire fence. Praise be to the farmer who erected that fence because it kept me from sliding even further into a water-filled ravine.

I had insurance. And I had an AAA card. So I got a tow and had a claim agent size up the damage. His ruling: It was an accident.

There are always things you can do to lessen the chances of an accident, but the fact that accidents can and do happen is the central reason why people buy car insurance, homeowner’s insurance, and life insurance.

United of Omaha Life Insurance Company – a subsidiary of Mutual of Omaha – has turned that central reason for buying insurance inside out by deciding that accidents aren’t accidents at all if they happened in a medical setting. The company’s decision has been affirmed by the U.S. District Court for Maryland and then affirmed again by the U.S. Court of Appeals for the Fourth Circuit.

The rulings have broad implications for patients and their families. I explained how Middleton died last week and how the insurance company deliberated on Friday. Now here’s a bit about what went into the judges’ thinking.

First, the evidence. According to the appeals court ruling, the courts reviewed the following:

(1) the amended death certificate for Plaintiff’s husband, issued by the State of Maryland

(2) the Post Mortem Examination Report prepared by Assistant Medical Examiner Victor Weedn, M.D., for the Office of the Chief Medical Examiner for the State of Maryland

(3) the private autopsy report prepared by Allen Burke, M.D.

(4) Middleton’s medical records from the Montgomery Endoscopy Center where he underwent the colonoscopy

(5) the professional opinion of United of Omaha’s Medical Director, Thomas Reeder, M.D., regarding the cause of Middleton’s death, following his review of the claim file.

The appeals court paid special attention to Weedn’s report, noting:

Of particular relevance to the present appeal, Dr. Weedn’s Report states that Middleton, at the time of his death, was on a liver transplant list, and that he underwent the colonoscopy as part of his workup for an anticipated liver transplant due to a family history of colon cancer. Dr. Weedn learned this information from his first-hand review of Middleton’s medical records, including records from: (1) Shady Grove Adventist Hospital (emergency services); (2) Dr. Mikhail (primary care physician); (3) Dr. David Doman (the gastroenterologist who performed the colonoscopy at issue); (4) Dr. Mark Sulkowski (infectious disease, internal medicine); and (5) Dr. Alan Kravitz (surgeon). According to Dr. Weedn’s Report, “[t]he manner of [Middleton’s] death is ACCIDENT.”

Middleton’s policy with United of Omaha defined an accident narrowly as an unexpected event that had to occur “independent of Sickness and all other causes.”

One’s mind reels as to how an accident could occur without any cause. Perhaps Middleton’s widow, Sherri Thomas, should have sued on the grounds of misrepresentation. Under what circumstances, exactly, would an accidental death benefit be paid if the insurance company already had ruled out any accidents in which there was a cause involved?

But the courts stepped around this issue and focused on the “independent of Sickness” part. Was Middleton sick at the time of the accident? From his death certificate, it appears so. He suffered from cirrhosis and hepatitis C. Was the colonoscopy, and, therefore, the accident related to his sickness? Therein lies the difficulty. Thomas and her attorneys argued that Middleton was undergoing a colonoscopy as a precautionary measure – not because of his liver disease. He had a family history of colon cancer and had undergone two previous colonoscopies over a decade.

Three judges considered the evidence for the appeals court: J. Harvie Wilkinson III, G. Steven Agee and Clyde H. Hamilton. They wrote:

In conclusion, we hold United of Omaha did not abuse its discretion in denying Plaintiff’s claim for accidental death benefits under the Policy with respect to the death of her husband. Accordingly, the district court did not err in granting summary judgment in favor of United of Omaha.

“Alice in Wonderland,” right? And the only Cheshire Cat grinning is the CEO of Mutual of Omaha. Sell accidental death insurance with no possibility of collecting. That’s a winning business strategy, and it’s also a cautionary tale for anyone considering undergoing what they think might be a routine procedure. If illness can cancel out an insurance policy, than we may all reconsider why we are paying those premiums, as most of us suffer from some sort of illness. At a minimum, we should read the fine print of our policies.

Part 1: Fatal Colonoscopy Leaves Family Stunned and Unpaid

Part 2: Insurance company says, Tough luck, accidents happen

Photo by Jeroen Bouman via Wikimedia Commons.


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Interesting article. It is said that situations like this exist in the medical system today. Every system has loop holes and United of Omaha was only trying to protect them selves, however it is still sad for the family. It just goes to show that each of us in the industry needs to make sure all are ducks are in a row all the way through from patient interactions, the procedure all the way to the behind the senses activities like medical transcription. We all need to do are part to insure business is good and customers are happy.

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Your last sentence says it all. Obviously insurance is a for-profit business......unfortunately for Americans, medical care is a for-profit business also.....and when medical care decisions are biased by business models and profit margins....people die....and families suffer. The insurance company is still quite wealthy and the doctors are still enjoying good business.....and the patient dead.

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I've had 6 colonoscopies all negative, never worried about procedure. Had 2 friends die from having holes poked in colon by doctors, who all lied about. 1 died in 7 weeks, the other went into coma for 3 months died 2 months later. Another friend had exactly same thing happen to him but he lived, was in hospital 3 months had a real bad year. All this in one year, I'll never have another one again. If it happened to me and I lived I'll kill the damn doctor with my bare hands. Take it for what it's worth. I wont be nice about it.

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Had a colonoscopy in October 2nd of 2018. They sent me to the emergency room before they were even done. Had to have two surgeries to repair two holes in my colon two days apart. Nearly died. Will never be the same. Got the records from the gastro/endoscopy place and they recorded I was fine and discharge home and could resume normal activities within 24 hours. After surgery and intensive care, I was sent to rehab. Spent six weeks in hospital and rehab before being able to go home with a bag on my side to collect the discharge from my small intestine. Finally got reconnect three months after. Then needed a hernia repair for the two incisions. Can't find an attorney to take my case. Anyone know of one??????????

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I agree with your statement 100% ..

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I am a registered nurse and practice manager for several providers that perform many colonoscopies, I've also had a sister and a husband die from colon cancer and a mother that died from a ruptured bowel caused by a strangulated hernia. So I have some experience to speak from. It is unfortunate that this man passed away as he did. But did the doctor do something wrong? Did the doctor explain the risks associated with a colonoscopy? Would it have been prudent for the patient's surgeon to transplant a liver into someone that may have colon cancer due to his strong family history only to die from colon cancer? Should he not have had the colonoscopy which may have precluded him from having the liver transplant? Who is to blame? Who is right, who is wrong? Who needs to pay?
Accidental death is accidental, you cross the street and a speeding runaway bus hits you and kills you, you have heart disease, kidney failure and diabetes. Should the insurance pay? Absolutely, because none of that was related to why you were crossing the street and why the bus hit you. Who is wrong; the bus driver because he took the risk, associated with a non-unalienable right to drive, and killed the person, who has an unalienable right to walk across the street safely. Did the patient have the right to decline the colonoscopy absolutely but he didn't he weighed his options and opted to have it, now this was no longer an accidental happening but rather a risk of his decision. I have seen perhaps 2 perforations and no deaths in my 33 yrs of working with patients from all areas mostly Gastroenterology. Do they happen, yes unfortunately. Does any provider want to puncture someones colon or have their patient never wake from anesthesia, I seriously don't think so. I have seen cases where young patients from 26-44 came in because of rectal bleeding and because of their age, it was determined that it must be bleeding hemorrhoids but in fact they had 4th stage colon cancer. Had someone performed a colonoscopy on them regardless of their age, perhaps they would still be alive to tout the good of having a colonoscopy. And if someone has had 6 colonoscopies and had nothing adverse happen he should not discourage other from having them because others have had bad outcomes. Having 3 friends suffer such adverse effects when the incidents of these things are remote it is hard to believe unless he was doing his own blind study with 20,000 people he called friends.

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I couldn't disagree with you more, Debbie Stelzer. We all know the risks when crossing a street. We all take that risk and it's one, I think, we can agree, that the insurance company would honor a payout for. When a person killed by a car has multiple health issues they are not considered. This man's other illnesses in no way, shape nor form contributed to his death. No direct link to the perforation, whatsoever. Risk with colonoscopy which he consented to (presumably), not unlike risking crossing a street. The problem here is money mongering and greed. I dare say, perhaps between the doctor's as well. Colonoscopy is not the only way in which to detect nor diagnose colon cancer. Some wouldn't know there are alternatives and they certainly are not being told. Too many people put much too much faith in doctor's, especially in high stress situations. Worse, dare a patient ask the "wrong" or too many questions in an attempt to understand and gain knowledge regarding what they are facing and it's evident just how alive and well the ego in the health community is and has grown. Denial of benefits in this case is just so wrong on so many levels and highly disturbing.

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First of all I am sure the doctor did not intend for the patient to be harmed but he was and that constitutes an accident. Yes the patient made the decision to have the procedure but he did not expect an accident to happen. If someone decides to climb a ladder knowing they may fall and be injured is that not still considered an accident? Years ago family member had an car accident. Health insurance, auto insurance paid all the bills because it was an accident. If the doctor or hospital intended no harm it was an accident plain and simple. If he did not have a family member present when he agreed to the procedure how is there proof that he was actually told all the dangers and possible complications that might happen? Oh because he signed a consent form? I have seen patients handed a consent form to sign without being given the chance to even read it or discuss it with anyone.

In the last few years I have discovered something alarming, doctors, nurses, and hospitals all like to cover their mistakes. Case in point recently received my records there are statements in there saying things had been discussed with me that were never brought up. I as a patient would have no proof because I do not have a witness. If something would have went wrong their butts would have been covered.

It has been my experience that you should not ask why or question anything they are doing because they become very angry and treat you like dirt. Oh if you dare to say I refuse that treatment they go into shock or make you as miserable as they possibly can. Or if you dare to make a statement such as I did some research and isn’t that antiobiotic part of this family and I’m allergic to it. I have had them stand at the foot of the bed and just get downright mean. I’ve also had my pharmacist refuse to fill a a prescription because my records stated I was allergic to a certain medicine and the doctor prescribed another form of it. I would have taken that medication and possibly had a severe reaction. My family probably would not have had any recourse against the doctor because I should have known better than to take a medication I was allergic to although I am not a pharmacist. That experience has taught me not to swallow a new prescription without doing research.

It has also been my experience that doctors and nurse practitioners will rush a patient into a decision without giving the patient a chance to think things over and not give the patient all the options. Such as this case why did he have an invasive colonoscopy when there are virtual colonoscopies. There are also less invasive tests that will rule out whether you need these invasive tests that make the hospitals and doctors quite a bit of revenue and they can include those patients in their yearly quotas and brag how many procedures and surgeries they have performed. And of course when the more invasive procedures are performed that makes that much more revenue for the hospital. The charges for the extra equipment, extra staff, anesthesia, medications all add up.

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This is frightening. SHAME on Mutual of Omaha & the court system thereafter! My brother died at 36 of colon cancer-never had a colonoscopy. I've had a hemmorhoidectomy & a couple of colonoscopies. I am scheduled to have another in May. I know 2 people who have had problems with them. They're ok but I am considering cancelling-this dr.-nor ANY dr never discussed possible problems or risk of dying as a possible outcome. I am older now-want to live as many years as possible. This who insurance thing makes me sick-I guess the insurance company could say THAT precludes any payment should a dr's accidental move damage me!

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I was never told about the dangers of having a colonoscopy when I had mine. I was told, "it is routine screening and is not dangerous". She made it sound like it was no big deal at all. That was said to me by the doctor herself. If she told me all of what I just read regarding the dangers and possible death, I would have canceled my appointment. This doctor was referred to me by my PCP and I just trusted everyone involved. I signed all my papers just before the procedure. I didn't read them thoroughly as I was about to be prepped. The staff did not give me adequate time to read all the fine print. So, now I read about the dangers of this 'routine test' and am not sure if I will ever have another one. The Insurance company, in my opinion, should have paid the family. It was an "accident".


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