Fitzgerald v. Franklin Life Ins. Co.

• Decision Date: 01 February 1979
• Docket Number: Civ. A. No. N-76-675.
• Citation: 465 F. Supp. 527
• Parties: Judith M. FITZGERALD v. FRANKLIN LIFE INSURANCE COMPANY.
• Court: U.S. District Court — District of Maryland

465 F. Supp. 527

Judith M. FITZGERALD v. FRANKLIN LIFE INSURANCE COMPANY.

Civ. A. No. N-76-675.

United States District Court, D. Maryland.

February 1, 1979.

K. King Burnett and Ernest I. Cornbrooks, III, Salisbury, Md., for plaintiff.

James R. Bucher, Upper Marlboro, Md., for defendant.

NORTHROP, Chief Judge.

In this case, the plaintiff, Judith M. Fitzgerald, brought suit for payment of a $50,000 insurance policy on the life of her deceased husband, John M. Fitzgerald. The defendant, Franklin Life Insurance Company, defended against the claim on the ground that a material misrepresentation as to the deceased's health on a reinstatement application voided the policy. At the end of all the evidence, the defendant moved for a directed verdict. The Court denied this motion and permitted the case to go to the jury. The jury returned a verdict of $34,000 for the plaintiff. Thereafter, the defendant submitted a motion for judgment notwithstanding the verdict. Upon reconsideration, the Court granted the motion for judgment N.O.V. and advised the parties that it would issue an opinion setting forth the factual and legal reasons supporting that ruling.

The facts of the case are as follows: Mr. John M. Fitzgerald applied for a $50,000 life insurance policy with Franklin Life Insurance Company in 1968. As a prerequisite to obtaining the policy, Mr. Fitzgerald was asked to fill out an extensive application form and to submit to a medical examination by a physician who would forward the results to the insurance company. Dr. Robert Milligan, M.D. of Pittsburgh, Pennsylvania, gave Mr. Fitzgerald a thorough physical examination in 1968 and reported his results to Franklin Life.¹ In addition, Franklin obtained a detailed background report on Mr. Fitzgerald from the Retail Credit Company, Mt. Lebanon, Pennsylvania. Based on Mr. Fitzgerald's answers on the insurance application, the medical results reported by Dr. Milligan, and the background information provided by the credit company, Franklin Life issued a policy in the amount of $50,000 to John Fitzgerald on October 7, 1968. The primary beneficiary of this policy was the insured's wife, Judith M. Fitzgerald.

Almost five years later, in January 1973, John Fitzgerald consulted Dr. Frank Gantz, M.D., of Berlin, Maryland, several times. See Defendant's Trial Exhibit 2. On the initial visit on January 13, 1973, Mr. Fitzgerald complained of diarrhea, lower back pain, fever, sweats, fatigue, fainting spells, and general weakness. His blood pressure was 160/110. On a follow-up visit on January 16, 1973, Mr. Fitzgerald's blood pressure was 152/92 and 150/105 on separate readings. At this time, Mr. Fitzgerald told Dr. Gantz that the state of weakness continued on a periodic basis accompanied by back pain and that he felt numbness in his left leg while standing for any length of time. Dr. Gantz prescribed Pathribamate, Ampicillin, and Rauzide for the patient. In his trial testimony, Dr. Gantz explained that he prescribed Rauzide, which is a blood pressure medicine, to determine whether the patient had high blood pressure.

The record of treatment from two later visits on January 22, 1973 and January 24, 1973 revealed a blood pressure reading of 120/80. This record also showed that the patient continued to experience back pain and severe night sweats accompanied by fever. In addition, it indicated that Mr. Fitzgerald suffered angina-like pains six to twelve times. In his trial testimony, Dr. Gantz stated that he believed the underlying cause of the patient's problems in January 1973 was a urinary infection. Dr. Gantz stated that he prescribed Ampicillin, a mild drug, for the infection and the patient's blood pressure returned to normal.

On February 19, 1973, Mr. Fitzgerald traveled to Pittsburgh, Pennsylvania and checked into the Pittsburgh Diagnostic Clinic for a complete physical examination.² Although it is unclear whether Dr. Gantz referred Mr. Fitzgerald to the Pittsburgh Clinic or whether he went on his own initiative, Mr. Fitzgerald underwent four days of tests. The medical history of the Clinic records outlined his symptoms:

For approximately a year, Mr. Fitzgerald has been experiencing symptomatology which includes profuse sweating at night and sometimes during the day, associated with a low grade fever up to 100 degrees. Weakness and fatigue have been prominent. When he gets up in the morning there is soreness throughout the back and he feels weak and short of breath. Sometimes it takes several hours before he is able to be sufficiently active to go to work. The shortness of breath which occurs almost entirely in the morning when he first gets out of bed and is not necessarily or even regularly associated with physical activity. Sometimes he feels "weak" and feels that he needs more oxygen in the sense that he recalls his mother acting when she had heart trouble. On these occasions there may also be some pain in the left arm although he doesn't have any chest pain. His response to physical activity such as walking has been poor in that he tires easily, has to walk slowly and has no energy. However, he can't describe either spontaneously or on direct questioning any history of effort bringing on any chest distress or arm pain.

The symptoms have been occurring with greater frequency and more severity. He has really not felt well for the entire year. He saw a doctor during the summer or fall who gave him a complete examination and reported no positive findings. He saw another doctor more recently around Christmas and it was reported that he had some urinary infection and he took a course of Ampicillin which apparently had no effect upon his symptomatology. He did not have urinary symptoms at any time. He has not lost any weight. He sleeps all right except for the need to wake up and change his shirt because of the marked sweating. He hasn't had headaches and he has no history of fainting spells. There have been no ENT symptoms. He smokes cigarettes heavily, may have some chronic cough but no other specific pulmonary disorder. His appetite and digestion have been pretty good except for occasional non-specific indigestion. Occasional mild diarrhea, at least one or two watery stools have accompanied some of his periods of weakness and perspiring. . . . His family history indicates that his mother died of heart trouble but there are no other familial disorders. Defendant's Trial Exhibit 1.

In the summary, the reviewing physician, Dr. James C. Hayes, M.D. reached the following diagnoses: (1) tension state, (2) diabetes, (3) essential hypertension, mild, and (4) type IV hyperlipoproteinemia, mild. In his discussion of the diagnoses, Dr. Hayes observed that the diagnoses listed were not "necessarily germane to the symptoms which have been occurring and which are described in the history." Instead, Dr. Hayes felt that the symptoms were more related to a tension state than to any specific illness. He also believed that many of the symptoms, such as sweating, fever, and fatigue, were more related to excessive smoking, occasional excessive drinking, and possibly tension. Dr. Hayes also discussed several test results. He noted that the glucose tolerance test showed the presence of a mild diabetic response. Because the test was performed on the last day Mr. Fitzgerald was at the Clinic, follow-up tests were not possible. However, Dr. Hayes suggested that this test finding should have further ongoing follow-up and that it could be carried out by Mr. Fitzgerald's personal physician in Maryland. Besides mild cholesterol and triglyceride elevation, all the other findings were normal and established to the Clinic's satisfaction that there was no infectious process present.

The examinations at the Pittsburgh Clinic included a cardiac consultation with Dr. Daniel M. Wilkins, M.D. See Defendant's Trial Exhibit 1. In his report, Dr. Wilkins noted similar symptoms to those set forth in the medical history. He also observed that Dr. Gantz' examination the preceding month had revealed elevation of enzymes, cholesterol, and blood pressure and that Mr. Fitzgerald had been taking a hypotensive agent. According to Dr. Wilkins, Mr. Fitzgerald was told the illness was a urinary tract infection and was given Ampicillin to remedy it.

In addition to his observations on Dr. Gantz' findings, Dr. Wilkins presented his own test results and conclusions. His examinations revealed normal fundi and blood pressure of 130/80. Tests also showed that the heart size and sounds were normal as were the electrocardiogram and chest x-ray. Lab data did reveal, however, elevation of two-hour glucose tolerance and cholesterol. Dr. Wilkins concluded his remarks by focusing on the patient's lack of physical activity and "considerable business pressure." Additionally, he found that Mr. Fitzgerald smoked several packs of cigarettes daily and that several times a week he would have ten to twelve drinks in the course of a day. From the test data and these observations, he derived the impression that Mr. Fitzgerald was experiencing psychophysiologic symptoms and characterized him as a type IV hyperlipidemia.

On February 22, 1973, Mr. Fitzgerald completed the tests at the Pittsburgh Diagnostic Clinic and returned to Ocean City, Maryland. As he was later to characterize the Clinic's findings in a subsequent hospital stay, Mr. Fitzgerald believed the doctors had diagnosed his condition as "severe stress and strain." He did not return to see Dr. Gantz nor did he seek a follow-up on the diagnosis of mild diabetes, as recommended by the Clinic doctors.

Mr. Fitzgerald's next medical examination occurred in July of 1973. On or about July 25, 1973, Mr. Fitzgerald had a tooth treated by a dentist in Ocean City, Maryland. Shortly thereafter, the tooth became very painful and he was unable to eat or sleep. In addition, he had dizzy spells. On July 27, he had the tooth extracted by a dentist who also prescribed Darvon. Later that...