McKay v. Bankers Life Co.

• Court: Iowa Supreme Court
• Writing for the Court: STUART; All Justices concur, except REYNOLDSON
• Citation: McKay v. Bankers Life Co., 187 N.W.2d 736 (Iowa 1971)
• Decision Date: 17 June 1971
• Docket Number: No. 54424,54424
• Parties: Lucille P. McKAY, Appellee, v. BANKERS LIFE COMPANY, Des Moines, Iowa, Appellant.

Page 736

187 N.W.2d 736

Lucille P. McKAY, Appellee, v. BANKERS LIFE COMPANY, Des Moines, Iowa, Appellant.

No. 54424.

Supreme Court of Iowa.

June 17, 1971.

Wilbur R. Dull, of Dull, Keith & Beaver, Ottumwa, for appellant.

John N. Moreland and Bailey C. Webber, Ottumwa, for appellee.

STUART, Justice.

Appellee, Lucille P. McKay, brought this action at law to recover the principal sum of $20,000 payable under an accidental death policy with appellant company covering her deceased husband in which she was the named beneficiary. The company claimed (1) the insured's death was not accidental within the language of the policy and (2) a contributing cause to assured's death was 'disease * * * or medical or surgical treatment thereof' which was specifically excluded from the coverage. The trial court submitted the questions to the jury which returned a verdict for plaintiff. Defendant appealed. We reverse.

There is no material dispute in the facts. Charles A. McKay went to his family physician complaining of a cough and pain in his chest. X-rays revealed a shadow or mass in the left lung and cancer was suspected. Dr. DeKraay, a surgeon was called in for consultation and recommended a bronchoscopy. In this procedure a tube is inserted into the bronchial tubes through the mouth and windpipe and it enables the doctor to visually observe the interior of the bronchial tubes. In performing a biopsy through the tube to obtain a piece of tissue for microscopic examination the doctor severed a blood vessel. Profuse bleeding resulted which caused defendant's death in spite of emergency procedures instituted.

We assume for the purpose of our discussion here that the event described above was an 'accident' within the language of the policy. It is agreed this was a surgical procedure undertaken as an aid in determining the presence or absence of a cancerous growth and was in no sense a procedure intended to alleviate or cure the disease. The specific question remaining for our determination is whether an accident resulting from surgical procedure performed for diagnostic purposes is excluded from coverage by language of a policy which provides:

'LIMITATIONS APPLICABLE TO ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE. Benefits shall not be payable for any loss to which a contributing cause is

'(a) * * *

'(b) disease, bodily or mental infirmity, or medical or surgical treatment thereof; or

'(c) * * *.'

The trial court recognized that 'the great weight of authority is that 'surgical treatment' includes a surgical procedure designed for diagnostic purposes' and cited many of the cases hereinafter considered. He believed however that a fact question was created because Dr. DeKraay made a medical distinction between diagnosis and treatment. The Court stated:

'Since the Supreme Court of Iowa has never held that medical or surgical treatment of an unverified disease includes efforts directed toward its proper diagnosis as a matter of law, since there are authorities that it does not include such, since Dr. DeKraay, presumably an expert on the subject and certainly a 'reasonable person' did not understand the words to include his efforts to diagnose and since his testimony is undisputed in this record, it is the Court's belief that the judgment should stand until said Supreme Court has held that there is no ambiguity in the exclusionary words used and that any medical or surgical procedure for diagnostic purposes is medical or surgical treatment of a disease even though the disease be unknown at the time of the procedure.

'The defendant's use of the language has invited the litigation for had its liability been nonexistent in the event of 'surgery' or 'surgical procedure' instead of only in the event of medical or surgical treatment of a disease, the right of the plaintiff to recover would have been barred without question.'

We do not believe that a doctor's technical distinction between 'diagnosis' and 'treatment' is sufficient to make a factual issue as to the meaning of the policy. The overwhelming weight of authority is that accidents resulting from diagnostic procedures are excluded from coverage by the language found in this policy as a matter of law.

In Provident Life and Accident Ins. Co. v. Hutson (Tex.Civ.App., 1957), 305 S.W.2d 837, 65 A.L.R.2d 1443, the insured died as a result of the hemorrhaging of a brain stem tumor induced by a pneumoencephalogram 'performed in an effort to diagnose correctly the patient's condition and in no sense was considered by medical authorities as a treatment for the curing or alleviating the condition of a patient. It was a diagnostic test made to determine with greater accuracy the patient's physical condition and causes thereof'.

The policy 'specifically excluded from the rights thereunder death caused directly or indirectly, wholly or partly, by medical or surgical treatments, or bodily or mental infirmity or any other kind of disease'.

The beneficiary contended that as the pneumoencephalogram was a diagnostic test leading up to treatment and not tending to cure or relieve the physical condition the death caused thereby was not the result of medical or surgical treatment.

The court said: "The meaning of the word 'treatment' as used in the policy must be given a reasonable scope. It includes not merely the actual operation in a surgical case or the giving of a prescription in a nonsurgical case, but also the preliminary examination, including sometimes an exploratory operation or an exploratory examination. The treatment may, and generally does, include three stages: Preliminary, main, and final. Whatever is usually done to the patient or administered to him by a skilled physician or surgeon in any one of these stages is properly included under the term 'treatment,' even thought it may not be an indispensable prerequisite.' Order of United Commercial Travelers v. Shane, 8 Cir., 64 F.2d 55, 59. The opinion in this case quoted from, cites and relies upon International Travelers Association v. Yates, 29 S.W.2d 980, by the Texas Commission of Appeals and Flint v. Travelers Insurance Co., Tex.Civ.App., 43 S.W. 1079. We believe that the term 'medical and surgical treatment' has the legal significance and meaning, as is set out in the opinion quoted above. Within such legal meaning must be included not only what the physician or surgeon views as treatment, that is, things done in an effort to relieve or cure a physical disease or infirmity, but also all of the things performed by a doctor or a surgeon on the body of the patient in the diagnosis of or in preparation for cure. The performance of the pneumoencephalogram must be regarded in law, as similar to an exploratory operation by a surgeon, in which he opens the body of a patient in search of the cause of his ailment, discovers an incurable ailment, and closes the incision without attempting any curative surgery. This, undoubtedly, would be surgical treatment, as a matter of law. Having reached this conclusion, we believe the trial court erred in overruling the appellant's motion for instructed verdict, in which the appellant contended that there was no evidence in the record that the death of the deceased was not caused directly or indirectly, wholly or partly, by medical or surgical treatment.' Pp. 839--840.

In Wilson v. Travelers Insurance Co. (1968), 29 A.D.2d 312, 287 N.Y.S.2d 781, 784, insured died as a result of cardiac arrest which occurred while an anesthesia was being administered preparatory to an investigative surgical operation. The company claimed such cause of death was not covered as it resulted 'directly or indirectly from medical or surgical treatment for a disease'. The court without citing authority stated: 'It is also clear from these facts that death resulted by reason of a surgical treatment designed and performed for the purpose of treating the disease causing the insured's hypertension' and affirmed a directed verdict for defendant.

In Order of...