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.