McMahan v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 07 May 1949
• Docket Number: 30782.
• Citation: 206 P.2d 292,33 Wn.2d 415
• Court: Washington Supreme Court
• Parties: McMAHAN v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

206 P.2d 292

33 Wn.2d 415

McMAHAN v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

No. 30782.

Supreme Court of Washington

May 7, 1949

Department 1

Action by Clara McMahan against Mutual Benefit Health & Accident Association, to recover upon an accident policy issued by defendant to plaintiff's husband. From judgment for plaintiff, the defendant appeals.

Reversed with instructions.

See also 28 Wash.2d 202, 182 P.2d 4.

Appeal from Superior Court, Lewis County; John E. Murray, judge.

H. E Grimm, of Centralia, for appellant.

C. D Cunningham, of Centralia, and Hull & Armstrong, of Chehalis for respondent.

HILL Justice.

This is an action on a policy which insured Clarence L. McMahan '* * * against loss of life * * * resulting directly and independently of all other causes, from bodily injuries sustained * * * through purely Accidental Means. * * *' Mr. McMahan went to a hospital for an operation for the removal of herniated discs in the fourth and fifth interspaces of the lumbar vertebrae. The operation for the removal of the herniated discs was successful, but about twelve hours later Mr. McMahan died. An autopsy disclosed that he had a thrombus, commonly called a clot, in the left iliac vein, which had formed prior to the time of the operation. This condition was not known to the operating surgeon. It was established that death was caused by the dislodgment of a part of the thrombus, called an embolus, which traveled via the blood stream through the heart and into the lungs, and there caused a pulmonary thrombosis, which in turn was the cause of death.

The thrombus in the left iliac vein was completely disassociated from the region of the operative procedure; but a pathologist called by the respondent testified that, in his opinion, the breaking off of the embolus from the pre-existing thrombus was caused by the lowering of the blood pressure, changes in the blood stream, and rapidity of the blood flow, all caused by the anesthetic and the prolonged operation (three hours), together with manipulation and posture of the body during the operation. He further testified that the Holman test is widely used to determine the presence of a thrombus, has been used for twenty-five or thirty years, and should be given prior to the performance of any major surgery.

The operating surgeon testified that he knew of no way by which he could have determined the presence of the thrombus. He stated that, had he known of the existence of the thrombus, he either would not have operated or would have tied off the vein to prevent an embolus from breaking off and would have given certain medicines to prevent clotting.

The jury returned a verdict for the plaintiff, and, from the judgment entered thereon, this appeal is taken.

The only question involved is whether or not Mr. McMahan's death was due to bodily injuries sustained through accidental means directly and independently of all other causes.

In Evans v. Metropolitan Life Ins. Co., 26 Wash.2d 594, 174 P.2d 961, 972, we declared this jurisdiction committed to the rule that

'* * * under a policy against death or injury by accidental means, it must appear the means was accidental, and that it is not enough that the result was unusual, unexpected, or unforeseen'.

We there specifically refused to follow a line of cases from other jurisdictions which hold that

'* * * where the injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death results from accidental means, although there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which causes the injury or death.'

We also concluded that

'* * * accident is never present when a deliberate act is performed, unless some additional, unexpected, independent, and unforeseen happening occurs which produces or brings about the result of injury or death.'

The respondent places great reliance upon Zinn v. Equitable Life Ins. Co., 6 Wash.2d 379, 107 P.2d 921, 922. The Zinn case was not a case of a deliberate act and an unexpected and unforeseen death resulting therefrom; there was an intervening additional, unusual, unexpected, or unforeseen event, j. e., the entry of staphylococcus germs into the blood stream through the incision made by a physician to withdraw some blood from the patient.

Respondent urges, somewhat persuasively, that the breaking off of an embolus from a thrombus in the left iliac vein, which in turn caused a pulmonary thrombosis which resulted in death, was just as much an unexpected or unforeseen event, and just as deadly, as the entry of the staphylococcus germs through the incision in the Zinn case.

We make no point of the obvious distinction that the germs came from without and were held to be an external means under the provisions of the Zinn insurance policy for payment if death resulted '* * * directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means * * *;' because the policy provision here in question says nothing about external or violent means, but limits itself to accidental means.

The analogy between the two cases breaks down on the proposition that the breaking off of the embolus was an unexpected or unforeseen event or happening, because the testimony clearly establishes that the breaking off of an embolus from a thrombus was to be expected as the result of such an operation. The operating surgeon recognized the by saying that he would not have operated had he known of the existence of the thrombus, or would have taken certain measures to prevent the breaking off of the embolus from the thrombus. The pathologist called by the respondent made it clear that the breaking off of an embolus from a thrombus in consequence of such an operation is the expected result, and that good practice requires that a test for the presence of a thrombus be made Before any major surgery.

It is clear that what was unexpected and unforeseen was not an event or happening such as the breaking off of the embolus, but the pre-existing physical condition, i. e., the existence of the thrombus. The closest analogy would be found in those cases dealing with unexpected and unforeseen hypersensitivity to an anesthetic, causing death, as in Hesse v. Travelers' Ins. Co., 299 Pa. 125, 149 A. 96, and Otey v. John Hancock Mut. Life Ins. Co., 120 W.Va. 434, 199 S.E. 596, 599. In each of those cases, there was a voluntary or intentional act, i. e., the taking of an anesthetic, which, coupled with the existing but unknown and unforeseen bodily condition of hypersensitivity, resulted in an unforeseen and unexpected death. In the latter case, it was said:

'The case is one of first impression in this state. We have cited the authorities on the question involved to show the different viewpoints, and we must adopt the view which best represents our idea of the proper rule. That the result of the means employed by the surgeon in administering the anesthetic was unusual and unexpected is clear from the evidence, but were those means accidental? The surgeon did exactly what he intended to do, namely, administer novocaine, and the patient invited and therefore consented to its use. Can it be said that the means employed, under such circumstances, were accidental? We think not. The result was not one which was contemplated or expected, and came about from an unknown and unascertainable hypersusceptibility of the patient to the drug employed. Was that result different from that which so frequently occurs in surgical operations, where something unexpected happens, such as blood poisoning, heart failure and other complications from which death results? True, the hypersusceptibility herein considered is rare, but it exists, and must be reckoned with.

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