What tests does an insurance claimant have to undergo?
Dimitra Dubrow, Principal
From time to time, insurers ask claimants to submit to medical
examinations and, on rare occasions, to undergo tests. A recent
Victorian case highlights why it is important to obtain legal
advice whenever an insurer makes such requests.
Dikschei
v Epworth Foundation and Drake Australia
In Dikschei
v Epworth Foundation and Drake Australia, the Supreme Court of
Victoria was asked to decide whether a 76-year old woman was
required to undergo a test called a 'transoesophageal
echocardiogram'. The woman's claim was that she suffered a stroke
when air was inappropriately allowed to enter a central venous
catheter which was being used to administer medication while she
was recovering from surgery. As the catheter had been placed into
the right shoulder, the argument was that the only way for air from
the catheter to cause stroke would be if it could go from the right
to the left side of the heart and that could only happen if the
woman had a hole in the heart (patent foramen ovale).
The hospital wanted the woman to have a transoesophageal
echocardiogram as it had the ability to show whether there was such
a hole. The test involves a probe being passed down the throat.
Supreme Court Findings
The Judge found that the woman's refusal to have the test was
reasonable and said she did not have to have it. Although the risks
of major complication with the test were very low, the Judge said
it would still be "a substantial assault involving discomfort and
risk". In addition, there was a very small chance that the
transoesophageal echocardiogram would not show a hole even if it
was there.