Litman v. Monumental Life Insurance Co.

Annotate this Case
6-13-97



1-96-2460

JEFFREY LITMAN,                         )    Appeal from the
                                        )    Circuit Court of
          Plaintiff-Appellant,          )    Cook County.
                                        )
          v.                            )    
                                        )    
MONUMENTAL LIFE INSURANCE COMPANY,      )    Honorable
                                        )    Lester D. Foreman,
          Defendant-Appellee.           )    Judge Presiding.

     PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

     Plaintiff, Jeffrey Litman, appeals from a summary judgment for
defendant, Monumental Life Insurance Company (Monumental). 
Plaintiff's wife, Lyndie Sue Litman (Lyndie), was insured under an
accidental death policy (Policy) issued by Monumental which
provided that Monumental will pay a death benefit to the insured's
named beneficiary, if: (1) death occurs as a direct result of an
injury; and (2) death occurs within 90 days of the accident causing
the injury.  A "medical treatment" exclusionary clause in the
Policy stated that Monumental 
          "will not pay a benefit for a loss which is
          caused by, results from, or contributed to by:
                          ***
          (5)  Sickness or its medical or surgical
          treatment, including diagnosis."
               In June of 1993, Lyndie had surgery for ulcerated colitis; an
illeanal anastomosis or "J pouch" was created to avoid the need for
an ostomy bag.  On Thanksgiving Day, 1994, Lyndie began to
experience pain and was taken to the hospital where emergency
surgery was performed to remove scar tissue from the previous
surgery which had created a bowel obstruction.  The scar tissue was
removed.  Exploratory surgery two days later indicated that a 10 to
12 inch segment of intestine did not have to be removed.  Lyndie
recovered from her surgeries and returned home five days later.
     During the second week of December, 1994, Lyndie's stitches
were removed.  A few days later, Lyndie began experiencing
abdominal pain and was admitted to the hospital.  On Wednesday,
December 14, 1994, a feeding tube known as a Hickman line was
inserted and was x-rayed to insure that it had been positioned
properly.  On Thursday, the Hickman line was utilized to provide
nourishment to Lyndie for her surgery on the following Tuesday.
     On the morning of December 20, 1994, Lyndie's third surgery
was successful and the blocked segment was removed.  Lyndie
returned from the recovery room around 3:00 p.m. and was doing fine
when plaintiff left at 10:00 p.m.  At 7:15 a.m. the next morning,
however, plaintiff was notified by the hospital that Lyndie was
having a major heart attack.  The Hickman line had shifted and
pierced through the superior vena cava and perforated the lateral
wall of the right atrium, causing cardiac arrest.  Fluid from the
Hickman line had filled Lyndie's pericardial sac, causing death at
8:00 a.m.
     Monumental denied coverage based upon its "medical treatment"
exclusionary clause and plaintiff thereafter filed a complaint
seeking a declaration that Monumental owed him death benefits as
the named beneficiary under the Policy.  Following cross-motions
for summary judgment, the circuit court granted summary judgment
for Monumental, finding that the "medical treatment" exclusionary
clause applied to bar coverage.  Plaintiff appeals, asserting the
court erred in interpreting the accident as a result of medical
treatment.  Monumental contends the accident that caused Lyndie's
death occurred in the course of, and because of, the medical
treatment she was undergoing for her bowel obstruction.
     A motion for summary judgment will be granted only when the
pleadings, depositions, admissions, and affidavits on file, if any,
show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.  735 ILCS
5/2  1005 (West 1994).  This court reviews summary judgment orders
de novo.  Continental Casualty Co. v. McDowell & Colantoni, Ltd.,
282 Ill. App. 3d 236, 241, 668 N.E.2d 59 (1996).
     An accident is "'an unforeseen occurrence, usually of an
untoward or disastrous character or an undesigned sudden or
unexpected event of an inflictive or unfortunate character.'" 
Indiana Insurance Co. v. Hydra Corp., 245 Ill. App. 3d 926, 929,
615 N.E.2d 70 (1993), quoting Aetna Casualty & Surety Co. v.
Freyer, 89 Ill. App. 3d 617, 619, 411 N.E.2d 1157 (1980).
     Plaintiff contends that Lyndie's death resulted from an
accident, not medical treatment and the circuit court ignored a
long line of Illinois cases which have determined that exclusionary
clauses do not preclude recovery for accidental death, even during
the course of medical treatment, if the accident, and not the
treatment, is the proximate cause of death.  See Carlson v. New
York Life Insurance Co., 76 Ill. App. 2d 187, 222 N.E.2d 363 (1966)
(Carlson).
     Carlson, however, did not address the issue presented in the
instant case, but was predicated upon concerns regarding
preexisting illnesses and proximate cause.  In Carlson, plaintiff
was insured "'against specified losses resulting directly, and
independently of all other causes, from accidental bodily injury
***.'"  76 Ill. App. 2d at 190.  Excluded from coverage was any
loss caused by illness or disease.  76 Ill. App. 2d at 191. 
Plaintiff got dust and splinters in his eye while using an electric
sander; as a result, his latent schizophrenia was activated.  76
Ill. App. 2d at 193-94.  A jury found for plaintiff and defendant
appealed, contending it was not liable under its policy "unless the
accidental injury is the sole and independent cause of the
resulting disability; and that if the loss is caused in part by the
preexisting illness  the latent schizophrenia  there can be no
recovery."  76 Ill. App. 2d at 194.  The Carlson court concluded
that plaintiff's preexisting illness, although contributing to the
loss resulting from the accident, did not relieve the insurer of
liability where the accident was the proximate cause of the loss. 
76 Ill. App. 2d at 196.  Consequently, plaintiff was not entitled
to a directed verdict or judgment notwithstanding the verdict. 
Unlike Carlson, the Policy in the present case contained a "medical
treatment" exclusionary clause.  Moreover, the accident in Carlson,
getting foreign matter in the eye, was not caused by the illness. 
Carlson does not persuade.
     Similarly, in Vollrath v. Central Life Insurance Co., 243 Ill.
App. 181 (1926) (Vollrath), relied upon by plaintiff, the court
discussed the issue of proximate causation with a preexisting
illness.  In Vollrath, the insured died from an anesthetic
administered during the course of a tonsillectomy.  The policy
excluded death "'from physical or mental infirmity, or from illness
or disease of any kind ***.'"  243 Ill. App. at 183.  The insurer
contended that the insured's death was the result of his own
physical condition at the time of the operation.  The issue was
whether the insured's death was accidental as a matter of law.
     In the present case, there is no dispute that Lyndie's death
was accidental.  Unlike Carlson and Vollrath, the instant case does
not turn on concerns of proximate cause and a preexisting illness. 
Rather, the focus here is on the "medical treatment" exclusionary
clause, absent in Carlson and Vollrath, which prohibits coverage
for "Sickness or its medical or surgical treatment ***."  The issue
is whether or not Lyndie's death occurred because of medical
treatment.
     Reid v. Aetna Life Insurance Co., 440 F. Supp. 1182 (S.D. Ill.
1977), informs the present case.  There, plaintiff, who was insured
under a policy with a medical treatment exclusionary clause, was
recuperating from surgery "performed for non-accidental ailments"
and was administered intravenously the wrong medication and died as
a result.  440 F. Supp.  at 1182.  Applying Illinois law, the court
reasoned that the death "was a direct consequence of medical
treatment" and that
          "[t]he accidental use of the killer drug as a
          carrier of the intended drug, in place of
          normal saline solution as such carrier, where
          such use was negligence amounting to medical
          malpractice, or an unavoidable act of God, or
          something in between, though obviously not
          prescribed, would not have occurred but for
          the treatment, and thus was a consequence
          thereof.  Even though it be considered that
          the accidental death was not caused or
          contributed to by the intended medical
          treatment, it was caused by the 'accident'
          which occurred in the course of administering
          medical treatment."  440 F. Supp.  at 1183.
          Plaintiff asserts Reid is distinguishable because the Hickman line
here was not inserted as a treatment for ulcerated colitis or the
obstructed bowel.  Plaintiff maintains that Lyndie was able to take
nourishment orally and the Hickman line was inserted during a
medical procedure that was completed almost a week before her
death.  According to plaintiff, Reid would govern here only if
Lyndie's heart had been perforated during insertion of the Hickman
line.  Monumental claims that plaintiff's contention is
hypertechnical and unacceptable for construing contracts. 
Monumental submits that while the medical procedure of inserting
the Hickman line was completed, Lyndie's medical treatment did not
cease at that moment.
     Although the Hickman line did not perforate Lyndie's heart at
the moment of insertion by a physician, it was introduced in order
to prepare Lyndie for surgery and was used continously to nourish
her.  Lyndie's medical treatment did not terminate once the medical
procedure of installing the Hickman line was completed; rather, the
use of the Hickman line was an ongoing process that constituted an
important part of her medical treatment.  See generally Provident
Life & Accident Insurance Co. v. Hutson, 305 S.W.2d 837, 839 (Tex.
Civ. App. 1957).  Since Monumental's Policy expressly precludes
coverage for losses caused by medical treatment, the exclusionary
clause applies to bar coverage here.
     Several cases support this conclusion.  In Whetsell v. Mutual
Life Insurance Co., 669 F.2d 955 (4th Cir. 1982), the insured was
intravenously administered a saline solution.  The needle was
infected, however, and the insured contracted bacterial
endocarditis from which he died.  In construing a medical treatment
exclusionary clause, the court noted "that every court that has
considered similar exclusionary clauses has held such provisions to
exclude from coverage death caused by various mishaps occurring
during the course of medical treatment."  (Emphasis added.)  669 F.2d  at 956.  The Whetsell court relied upon the decision in Reid,
noting that a contrary conclusion "would render the exclusionary
provision meaningless."  669 F.2d  at 957; see also Hammer v.
Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, 573 A.2d 699,
707 (1990) (finding that a medical treatment exclusionary clause
barred coverage for insured's losses suffered after a nutrition
line that had been installed disconnected because "[t]he only
reasonable interpretation of the exclusionary provision is that it
specifically excludes *** accidents caused by or resulting from
'medical or surgical treatment'").
     Senkier v. Hartford Life & Accident Insurance Co., 948 F.2d 1050 (7th Cir. 1991) (Senkier), is factually indistinguishable from
the present case.  In Senkier, the insured suffered from Crohn's
disease and "was admitted to a hospital with a tentative diagnosis
of intestinal obstruction."  948 F.2d  at 1051.  According to
standard procedure for treating Crohn's, a catheter was inserted
into a vein beneath the insured's clavicle to administer
nourishment intravenously.  948 F.2d  at 1051.  Subsequently, the
catheter moved from its original position and punctured the heart. 
The puncture was listed as the cause of death on the insured's
death certificate, "but the final certificate listed marked
nutritional deficiency resulting from Crohn's as the cause of
death."  948 F.2d  at 1051.  The Senkier court noted that:
          "the plaintiff must lose because a policy of
          accident insurance does not reach iatrogenic
          injuries, that is, injuries resulting from
          medical treatment.  Any time one undergoes a
          medical procedure there is a risk that the
          procedure will inflict an injury, illustrating
          the adage that 'the cure is worse than the
          disease.'  The surgeon might nick an artery;
          might in fusing two vertebrae to correct a
          disk problem cause paraplegia; might in
          removing a tumor from the patient's neck sever
          a nerve, so that the patient could never hold
          his head upright again.  A simple injection
          will, in a tiny fraction of cases, induce
          paralysis.  An injection of penicillin could
          kill a person allergic to the drug.  A blood
          transfusion can infect a patient with
          hepatitis or AIDS.  All these injuries are
          accidental in the sense of unintended and
          infrequent.  But they are not 'accidents' as
          the term is used in insurance policies for
          accidental injuries.  The term is used to
          carve out physical injuries not caused by
          illness from those that are so caused, and
          while injuries caused not by the illness
          itself could be put in either bin, the normal
          understanding is that they belong with
          illness, not with accident."  (Emphasis
          added.)  948 F.2d  at 1051-52.
          In rejecting plaintiff's arguments, the Senkier court reasoned that
"[w]hen you die from the standard complications of standard medical
treatments you don't, it seems to us, die in or because of an
accident; your death is the result of illness."  948 F.2d  at 1053.
     Plaintiff here contends Senkier should not control this
court's reasoning because it was brought under the Employee
Retirement Income Security Act and decided under federal law. 
Plaintiff acknowledges, however, that this is a case of first
impression in Illinois; accordingly, this court may look to
decisions from other jurisdictions.  See Caterpillar, Inc. v. Aetna
Casualty & Surety Co., 282 Ill. App. 3d 1065, 1072, 668 N.E.2d 1152
(1996); see also Oakley Transport, Inc. v. Zurich Insurance Co.,
271 Ill. App. 3d 716, 727, 648 N.E.2d 1099 (1995); Beard v. Mount
Carroll Mutual Fire Insurance Co., 203 Ill. App. 3d 724, 729-30,
561 N.E.2d 116 (1990).  Plaintiff also attempts to distinguish
Senkier by noting that the use of a catheter is "standard
treatment" for Crohn's disease sufferers whereas the Hickman line
was used on Lyndie in order to prepare her for surgery.  Although
Lyndie did not require the Hickman line for the exact same reasons
as plaintiff in Senkier needed a catheter, the Hickman line was
nevertheless essential to Lyndie's well-being and recovery: it
enabled Lyndie to undergo her third surgery in as many weeks.  It
is difficult to view the insertion of the Hickman line here as
something other than medical treatment, that is, something
"performed by a doctor or a surgeon on the body of the patient in
the diagnosis of or in preparation for cure."  Provident Life, 305 S.W.2d  at 839; see also Dinkowitz v. Prudential Insurance Co., 90
N.J. Super. 181, 216 A.2d 613 (Law Div. 1966).
     Plaintiff contends that even if the accident occurred in
combination with medical treatment, recovery is not precluded if
the accidental injury, and not the treatment, was the proximate
cause of death.  Plaintiff's cited authorities do not involve
medical treatment exclusionary clauses; rather, each involves an
accident not causally related to a preexisting disease. 
Consequently, each is distinguishable from the present case.  For
instance, in Wahls v. Aetna Life Insurance Co., 122 Ill. App. 3d
309, 461 N.E.2d 466 (1983), the insured, who had a long history of
alcoholism, was found dead in her home with a fractured right
ankle.  A postmortem report stated that the "'Death is considered
to be related to Fatty Liver in association with Fracture of ankle
bones and history of heavy use of Ethanol.'"  122 Ill. App. 3d at
310.  The insurance policy at issue covered losses "resulting from
'accidental bodily injury ***, directly and independently of all
other causes.'"  122 Ill. App. 3d at 310.  Excluded from coverage
were losses caused or contributed to by any illness or disease. 
122 Ill. App. 3d at 310-11.  The medical examiner and plaintiff's
expert could not determine the cause of death although plaintiff's
expert ruled out the fractured ankle.  The court in Wahls concluded
that a fact question remained as to whether the insured's death was
accidental.  Wahls is distinguishable because the excluded event,
any illness or disease, did not cause the accident that contributed
to the insured's death.
     In Leverich v. Mutual Life Insurance Co., 139 F. Supp. 862
(E.D. Ill. 1956), the insured, who had Parkinson's disease,
sustained broken bones and contusions in an automobile accident and
died of pneumonia while hospitalized.  Coverage was not excluded by
the policy which precluded recovery if death resulted directly or
indirectly from disease or bodily or mental infirmity.  139 F. Supp.  at 863.  Similar to Wahls, the accident in Leverich was not
caused by the excluded event.  Moreover, the policy in Leverich did
not contain a medical treatment exclusionary clause.  See also
Connecticut General Life Insurance Co. v. Aguilar, 579 F. Supp. 1201 (N.D. Ill. 1983); Preston v. Aetna Life Insurance Co., 174 F.2d 10 (7th Cir. 1949).
     Plaintiff next argues that under Illinois law, nutrition and
hydration are viewed differently from actual medical treatment,
relying upon the Health Care Surrogate Act (755 ILCS 40/1 et seq.
(West 1994)) and the Illinois Power of Attorney Act (755 ILCS 45/1-
1 et seq. (West 1994)).  Plaintiff does not assert that the term
"medical treatment" is ambiguous and though provisions that limit
or exclude coverage are to be construed liberally in favor of the
insured and "'most strongly against the insurer,'" (National Union
Fire Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122,
632 N.E.2d 1039 (1994), quoting Squire v. Economy Fire & Casualty
Co., 69 Ill. 2d 167, 179, 370 N.E.2d 1044 (1977)), there is no
basis here for concluding that the insertion of a Hickman line was
not medical treatment.  This decision is consistent with several
cases which involved analogous circumstances.  See Reid v. Aetna
Life Insurance Co., 440 F. Supp. 1182 (S.D. Ill. 1977); Whetsell v.
Mutual Life Insurance Co., 669 F.2d 955 (4th Cir. 1982); Hammer v.
Lumberman's Mutual Casualty Co., 214 Conn. 573, 573 A.2d 699
(1990); Senkier v. Hartford Life & Accident Insurance Co., 948 F.2d 1050 (7th Cir. 1991).
     Accordingly, Monumental's medical treatment exclusionary
clause bars coverage where Lyndie's death was caused by, resulted
from, or was contributed to by medical treatment.  The circuit
court did not err in granting summary judgment for Monumental and,
therefore, its judgment is affirmed.
     Affirmed.
     HOFFMAN and SOUTH, JJ., concur.


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