Mark met the pro bono team in October 2015 after he sustained complications post-surgery that left him tetraplegic. Mark had an insurance policy that provided critical illness cover, but the insurer told him he could not make a claim because the injury was not caused by an accident.

We reviewed the policy and concluded that Mark could claim under the policy. We helped him submit the claim and gather the relevant evidence. Unfortunately, the insurer rejected the claim on the basis that the injury was not “caused solely and directly by violent accidental external and visible means resulting directly and independently of any other cause”.

Mark had an ongoing clinical negligence claim, and we agreed to wait until that concluded before appealing the insurer’s decision. Sadly, Mark passed away shortly after his claim was settled in December 2021.

Reviewing the terms

When we called the insurer to ask about the procedure for appealing a decision following the passing of the policyholder, the insurer argued:

• The policy terms governing the dispute specifically exclude injuries that arose as a consequence of clinical negligence, and
• in any event, clinical negligence would not constitute a “violent, accidental, external and visible means”.

They sent us new policy terms and said they considered the matter closed.

In respect of the first issue, we reviewed the policy terms they sent and noted they did specifically exclude injuries arising out of clinical negligence. However, we noticed that these terms differed from the policy terms we had initially reviewed in 2015, which did not contain the same exclusion. We argued that the 2015 policy terms were the applicable terms.

Regarding the second issue, we researched whether clinical negligence would constitute a “violent, accidental, external and visible means”.

We found guidance in the decisions of the Financial Ombudsman Service and case law. These indicated that we should distinguish between those situations where the injury is a potentially natural result of the procedure (for example, where cutting into a particular part of the body might result in injury) and situations where injury, although a possibility, is not the natural result of the procedure (for example, where the wrong part of the body has been cut).

Taking action

We concluded that injuries such as Mark’s, which were caused by clinical negligence during and post-surgery, were not a natural result of surgery and would therefore be covered by the relevant policy terms.

We replied to the insurer asking for the claim to be paid in light of our research. Our email was treated as a complaint, and an investigation took place. In June 2022, the insurer acknowledged that the service they provided was extremely poor. They accepted both of our arguments, ie that the 2015 policy terms were applicable and that the wording of the 2015 policy covered clinical negligence. They agreed to pay the full £50,000 benefit for tetraplegia to our client’s estate.

Head of Pro Bono Kara Smith says: “Mark and his family were consistently given misinformation by the insurer and denied the compensation they were entitled to despite having suffered through incredibly difficult circumstances. I am delighted the Legal Service was able to secure a fair and equitable outcome for them.”

Paralegal Liana Turner contributed to this article.

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