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DeBofsky, Sherman & Casciari, PC
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DeBofsky, Sherman & Casciari, PC's posts

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The Daily Law Bulletin published Mark DeBofsky's article about an insurer's logical fallacy - the "red herring" - 

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Life Insurance Incontestability - What is it and how do you deal with it? http://bit.ly/2kBPKzq

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If your loved one has died during the contestability period http://bit.ly/2ksLfHt

We are deeply honored to have been recognized by SuperLawyers - Mark DeBofsky was named as one of the Top Ten lawyers in Illinois and Martina Sherman and Marie Casciari were named Rising Stars.

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Chicago Daily Law Bulletin published my article on unfortunate consequences of good deeds on 1/11/17 - 

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The Problem with File Reviews in Disability Benefit Cases http://bit.ly/2iSFhNL

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My article "New ERISA disability rules look to level playing field for all," was in Chicago Daily Law Bulletin - 

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Medical complications and accidental death insurance http://bit.ly/2gOtQE7

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By Mark D. DeBofsky of DeBofsky & Associates, P.C. posted in Accidental Death on Saturday, December 17, 2016.

DeBofsky, Sherman & Casciari, PC recently won an important accidental death insurance case in the U.S. Court of Appeals - Prather v. Sun Life and Health Insurance Company,2016 WL 7232144 (7th Cir. December 13, 2016) - The case was brought on behalf of Lee Ann Prather, the widow of Jeremy Prather, who died at age 31 of a pulmonary embolism due to a deep vein thrombosis after undergoing surgery to repair his Achilles tendon which he ruptured while playing basketball. Mrs. Prather brought a claim for accidental death insurance under a group policy issued to Jeremy's employer for the benefit of its employees. However, the claim was denied based on coverage that was limited to "bodily injuries ... that result directly from an accident and independently of all other causes." (emphasis added). The insurer maintained that Jeremy Prather's death was due to "complications from surgical treatment" and the district court upheld that finding. The court of appeals reversed and awarded benefits to Lee Ann Prather.
Sun Life relied on a report prepared by a physician's assistant who maintained that deep vein thromboses and pulmonary embolisms are a risk of the surgery that Jeremy underwent, but that such conditions could also result from immobility alone. The court observed:
That was Sun Life's only medical evidence, however, and it was inconclusive. It was evidence not that Prather's death was a result not just of the accident but also of independent events--namely the surgery but maybe also or instead the immobilization of his leg before surgery--but that it might have been a partial result of such events--partial because the accident had to have played a role; no accident, no surgery or immobilization, hence no deep vein thrombosis or pulmonary embolism. (emphasis in original).
The court was troubled by Sun Life's efforts to place the entire burden of proof on the beneficiary to show that the death occurred "independently of all other causes." The court explained - "that can't be right because it would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death (there is no suggestion that Prather, a young man, would be dead had he not torn his Achilles tendon), merely because there is some speculative possibility that something else may also have played a role." The court went on to explain that such an interpretation "would make many accident insurance contracts vacuous, illusory, because often there is an interval between the accident and a resulting injury, and a possibility that something in that interval caused or aggravated the insured's injury."
Thus, the court determined that since the accident alone - the ruptured tendon - could have caused Jeremy Prather's death, the insurance company was obligated to "present some evidence that the surgery had been a cause of Prather's death--and it presented none." All the insurer proved was that the "surgery might have been a cause of Prather's death," which the court deemed insufficient.
The court further noted that the forensic pathologist who performed a port-mortem examination did not attribute Prather's death to the surgery. The court also cited medical literature reporting a significant incidence of deep vein thrombosis following an Achilles tendon tear even without surgery. Makhdom AM (Asim M.) et al., "Incidence of Symptomatic Deep Venous Thrombosis After Achilles Tendon Rupture," 52 Journal of Foot & Ankle Surgery 584 (2013).
The court also dismissed the insurer's argument that its discretionary authority permitted it to conclude that the death was due to a surgical complication by observing: "But that would amount to the insurer's having carte blanche to decide whether or not to honor its contract." And while the insurer argued the evidence was "clear" that the surgical treatment was a contributing factor to Jeremy Prather's death, the court rejected that contention, maintaining, "Post hoc is not propter hoc." [The expression post hoc ergo propter hoc (after this therefore because of this) is a logical fallacy; i.e., just because the rooster crows at sunrise does not mean the rooster causes the sun to rise].
Compounding the insurer's difficulties in this case, the court also pointed to a call Jeremy had made to his doctor the day before the surgery complaining of symptoms characteristic of a deep vein thrombosis, which suggested the condition may have been present even before the surgery. Thus, the court concluded, "Because Sun Life failed to make any plausible showing that the surgery on Prather's ankle, rather than the accident that necessitated the surgery, caused his death, the judgment in favor of the defendant is reversed and the district court is instructed to enter judgment in favor of the plaintiff."
The only case citation in the court's ruling came after the quotation that appears immediately above - Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1052 (7th Cir. 1991). However, the court did not even explain why Senkier was cited. The reason, though, is obvious. That case was authored by the same judge who wrote the Prather ruling - Judge Richard Posner. Senkier also addressed accidental death insurance policies and the medical treatment exclusion in such policies that Sun Life attempted to invoke here. In Senkier, the court denied recovery because the plaintiff suffered a consequence of medical treatment - a catheter being used to administer treatment detached, traveled in the decedent's bloodstream, lodged in her heart, and killed her. However, while the court deemed those circumstances a complication of treatment, the court suggested, "It would be different if [the decedent] twisted his knee playing tennis and the injury caused blood clots that embolized to his lungs and killed him (citations omitted). Then the means of death - the injury to the knee - would be an accident, and the death would be covered." Since the circumstances of Jeremy Prather's death were almost identical to the hypothetical presented in Senkier, the result in this case was foreordained.

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"Claims Procedure for Plans Providing Disability Benefits," 81 FR 92316 (December 19, 2016) http://bit.ly/2gShFGb
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