• Death from Prescription Narcotic Overdose: Was the Death Accidental?
  • February 4, 2009 | Author: Robert B. Delano
  • Law Firm: Sands Anderson PC - Richmond Office
  • A patient living with severe chronic pain has seen multiple physicians, many of whom prescribed OxyContin, or a similar narcotic pain-reliever. Despite being counseled by each physician regarding the dangers of the drug, or even after signing a narcotics use agreement, the patient routinely takes more than the prescribed amount of medication. Finally, he is found dead with an empty prescription bottle nearby and a several weeks' worth of OxyContin missing. The postmortem blood concentration of OxyContin is far beyond the prescribed dosage. The immediate cause of death is listed as drug poisoning resulting from substance abuse.

    This article will provide a brief overview of the issues typically presented when the family of the insured who dies after voluntarily taking a quantity of his prescribed medication in excess of his prescribed dosage seeks to collect benefits under the accidental death provisions of an accident insurance policy or a life insurance policy with a double indemnity clause.
    Meaning of "accidental"
    In accidental death litigation, the plaintiff has the burden of proving that the insured's death was an "accidental death" covered by the insurance policy. The medical examiner's finding of "accident" as the cause of death is irrelevant to a lawsuit to recover on the policy, because "accident" is merely one of the five manners of death that can be presented on the death certificate.  
    The generally accepted rule in most jurisdictions, including Virginia, is that death or injury does not result from accidental means within the terms of an accident policy where the death is the natural result of the insured's voluntary act, unaccompanied by anything unforeseen except the death or injury. See, e.g., Smith v. Combined Ins. Co. of America, 202 Va. 758, 761, 120 S.E. 2d 267, 268 (1961). This principle has been applied in Virginia in a wide variety of different contexts, including death by violence, autoerotic asphyxiation, drunk driving, and overdose of either illegal drugs. It is logical, therefore, that courts following this general rule, like Virginia, would likely find that an overdose of OxyContin or similar prescription medications is not an "accidental" death. See, e.g., Gott v. Continental Cas. Co., 2006 WL 2617139 (W.D. Ga. 2006) (OxyContin overdose); Adair v. Boston Mut. Life Ins. Co., 24 F. Supp. 2d 1380 (M.D. Ga. 1988) (overdose of methodone and valium).
    Directly and Independently of all Other Causes
    Many insurance policies require that in order for the insured's death to be accidental, it be ". . . directly and independently of all other causes." There is well-settled precedent under Virginia law that if the insured's death "cooperated with" preexisting diseases or bodily infirmity, the death was not an accident because the death is not "directly and independently" of other causes.   See, e.g., Gay v. American Motorists Ins. Co., 714 F.2d 13, 15-16 (4th Cir. 1983) (collecting cases). Thus, if an insured's preexisting medical conditions have substantially contributed or cooperated with his abuse of prescribed narcotic pain medications to cause his death, the accidental death claim may well be denied as not being direct and independent of all other causes. 
    Medical Treatment Exclusion
    A claim for a death deemed accidental may still be excluded by the policy's "medical treatment" exclusion, which does not cover death caused by disease, sickness, or mental infirmity, or medical or surgical treatment of same. The burden is on the insurer to prove that the insured's death falls within a policy exclusion. Courts have construed medical treatments as having a "reasonable scope" that includes the taking prescribed medications. 
    A number of courts have held that these medical or surgical treatment exclusions extend not only to death caused by medical mishaps during the course of medical treatment performed by a doctor, but also to self-treatment by the patient attempting to follow the doctor's advice. See, e.g., Order of the United Commercial Travelers of America v. Shore, 64 F.2d 55 (8th Cir. 1933) ("If the administering of the drug in the case at bar did not constitute medical or surgical treatment, we would be at a loss how to classify such act").
    Thus, when the insured's doctor has prescribed a prescription drug to medically treat severe pain, and the insured ultimately dies of an overdose of that prescribed drug, the claim should likely fall squarely within the typical policy exclusion for death caused by medical treatment, and not be covered.
    Drug Exclusion
    In addition, a claim for an "accidental" death from a prescription overdose may still be excluded by the policy's drug exclusion, which typically excludes coverage for death caused by or resulting from the taking of any drug "unless taken on the advice of a physician," "unless administered on the advice of a physician," or "except as prescribed by a physician."
    Courts have ruled that the exclusion applies to an insured's death as the result of either a prescription drug overdose or exceeding the prescribed dosage. In finding coverage excluded, the courts have found that a patient taking an excess of the prescribed amount is not taking medication on the advice of a physician, as administered by a physician or as prescribed by a physician. See, e.g., Dice v. General Electric Capital Assurance Co., 93 Fed. Appx. 68 (6th Cir. 2004) (OxyContin not administered on the advice of insured's physician when insured ingested more OxyContin tablets than prescribed).
    Suicide Exclusion
    Regardless of whether the insured's death by prescription drug overdose is deemed to be accidental, the accidental death claim may still be excluded by the policy's suicide exclusion. A typical suicide exclusion states that the policy does not cover death caused by or resulting from "suicide or intentionally self-inflicted bodily injury, while sane or insane." 
    Most states prohibit a life insurance policy from excluding coverage for suicide that occurs more than two years from the date of issuance of the policy. See, e.g., Virginia Code § 38.2-3106. Because accidental death policies only cover death by accident, and not death by any cause as do life insurance policies, Courts have held these coverage restrictions inapplicable to accidental death insurance claims. See, e.g., Gomez v. Life Ins. Co. of North America, 84 Wash. App. 562, 567-568, 928 P.2d 1153, 1155 (1997), review denied, 132 Wash. 2d 1002, 939 P.2d 215 (1997) (Table). If the evidence establishes that the facts surrounding the insured's death were inconsistent with an accident and that the insured died by his own hand by taking a quantity of prescribed medications in excess of his prescribed dosage, the accidental death claim may fall within the accidental death insurance policy's suicide or self-inflicted bodily injury exclusion. 
    Although insurance policies and the Court decisions interpreting them vary by jurisdiction, it is likely that a death caused by an insured's voluntary act of taking a lethal dosage of his prescription medications in excess of the prescribed dosage would not be "directly and independently of all other causes" and/or would not be considered an "accidental" death. Moreover, even if the insured's death is found "accidental," coverage may very well be excluded under policy exclusions such as the medical treatment drug and/or suicide/self inflicted bodily injury exclusions.