Where the proof ends in life insurance cases

Many Insurance Companies use additional clauses in life insurance cases whereby, in the event of the death of the Insured, in addition to the benefit specified in the death insurance contract itself, the beneficiary is entitled to additional benefits due to the fact that the death occurred as a result of a circumstance specified in the clause. An example of such a clause, according to which, in the event of the death of the Insured as a direct result of a heart attack or stroke, in addition to the basic benefit for the death of the Insured, an additional benefit in the amount specified in the insurance contract is entitled. It is standard practice for insurance companies to use additional clauses for these types of clauses, which indicate that the circumstances must be the primary (and not secondary) cause of death and additionally must be confirmed by medical documentation (e.g. death certificate).

This article is prompted by two cases recently concluded in courts of first instance (not yet final), in which the beneficiaries of life insurance contracts pursued claims against the insurance companies under additional clauses providing for additional benefits in the event of the Insured's death as a result of a heart attack or stroke. These cases had a number of facts in common - the same insurance company, similar timing of the contracts, and finally the death of the Insureds as a result of: "Sudden cardiac arrest SCA" - as the primary cause of death, as indicated in the death certificates of these persons. In both these cases, no autopsy was performed on the Insureds and, moreover, the entitled persons did not request one. These cases were also united by the position of the insurance company - in both of these cases, the insurance company paid the benefit to the beneficiaries, in connection with the death of the Insureds, in the "basic" amount resulting from the life insurance contract, but refused to pay additional benefits, in the amounts indicated in the additional clauses, and related to the fact that death would have occurred as a result of a heart attack or stroke. The reasons for the refusal to pay the additional benefit indicated that the Insured's death could not be considered to have occurred as a result of a heart attack or stroke, as the cause of death was considered to be sudden cardiac arrest SCA.

At the trial stage, expert opinions in the field of cardiology were issued in both pending cases, which concluded that, in the absence of an autopsy of the deceased, the cause of deaths could not be determined unequivocally and, in particular, that they had occurred as a result of a heart attack or stroke. The Experts pointed out that the diagnosis "Sudden cardiac arrest SCA" could mean death as a result of myocardial infarction or stroke, but could also indicate death from other causes, such as congestion or non-cardiac causes. At the same time, the Experts indicated that myocardial infarction was the most likely cause of death of the Injured in both cases.

In this state of facts, the Courts of First Instance decided to award the claims in favour of the Plaintiffs, as requested by the Defendants, rightly pointing out that what is a basic principle of civil proceedings is that the party who proves its rights from certain consequences is obliged to prove these circumstances (Article 6 of the Civil Code). This principle applies to proving the claim itself both in principle and in amount. The courts held that the Plaintiffs (Insured Persons under the insurance contracts) had not proved unequivocally that the death of the Insureds had occurred as a result of a heart attack or stroke, but they had made it plausible to such an extent that, in view of the difficulties of proof (failure to prove the autopsy and the content of expert opinions, from which it follows that it is currently impossible to indicate unequivocally what was the direct cause of death intensified broadly as sudden cardiac arrest SCA), the claims in this respect should be deemed proven within the meaning of Article 6 of the Civil Code.As it seems, this constitutes a departure from the strict perception of the distribution of the burden of proof, according to which it is the party deriving certain effects that is obliged to prove them, and not to make them plausible - with the exception of special cases referred to as presumptions of a legal and factual nature and described in statutes (in this case, the death of the Insured as a result of a myocardial infarction or stroke), and the failure to prove or the inability to prove certain circumstances is borne by the parties who want to derive certain procedural effects from their claims. The courts, in the justifications of both judgments, unanimously referred to the judgment of the Supreme Court of 27 April 2012. (V CSK 142/11) quoting after it that, in the case of deterioration of health, it is sufficient to prove the overwhelming probability of one of the causes: a high degree of probability of such a link is sufficient, and in the case of a multiplicity of possible causes, the overwhelming probability of a causal link of the damage with one of these causes.

In this case, both Courts, while citing the aforementioned judgment, completely overlooked that the Supreme Court's judgment was made in a specific matter, which is the issue of liability for medical errors. In the aforementioned judgment, the Supreme Court, on several occasions, pointed out that theses regarding the facilitation of evidence (prima facie evidence and presumptions in lieu of proof of circumstances) are limited to cases involving the assessment of medical errors.

A similar position was also presented earlier by the Supreme Court in the judgment of 11 January 1972, I CR 516/71: In order to alleviate the burden of proof on the patient, who often encounters significant difficulties in this respect, even if only due to a lack of medical knowledge, the judicature has allowed the use of indirect evidence with a lower degree of probability than direct evidence and of factual presumptions. On the basis of a factual presumption, both the fault of the doctor may be established, provided that there is no evidence to the contrary, and the existence of a causal link between the negligence of the health care officials and the deterioration of the patient's state of health or death, unless there are grounds to conclude that the principles of medicine exclude this link".

The departure from the strict understanding of the burden of proof (the necessity to prove the circumstances from which we derive legal effects and not merely to make them plausible) in terms of the burden of proof only in medical malpractice cases, due to the difficulties of proof, is also accentuated in the literature. In the 2021 commentary edited by Jacek Gudowski to the Civil Code (to Article 6 of the Civil Code), he points out (citing, by the way, the same Supreme Court judgment referred to by the Common Courts in the cases described above): "In so-called medical cases, which, due to the nature of the facts to be proved, are usually characterised by objective evidentiary difficulties, especially in establishing a causal link between the injurious event and the violation of legally protected goods, it is deemed sufficient, in the case of a multiplicity of possible causes, even an overwhelming probability of such a link with one of the causes (see the judgment of the Supreme Court of 27.04.2012, V CSK 142/11, OSP 2013/6, item 61, with a gloss by M. Nesterowicz, and the case law cited therein)."

In both cases, the Courts, issuing judgments at first instance, blindly transposed the theses from the Supreme Court's judgment quoted above with regard to the lack of necessity to prove (prove), but only to make probability of the cause of death in specific circumstances, i.e. a direct departure from the rigorously perceived principle defining the distribution of the burden of proof and set out in Article 6 of the Civil Code, without reflecting on the specificity of the matter in which the Supreme Court issued the quoted judgment. Cases of medical malpractice, in fact, have a certain specificity, in which problems of objective evidence may arise. This specificity was pointed out by the Court of Appeal in Kraków in its judgment of 21 March 2000 (I ACa 192/00): "The specificity of cases for compensation of losses and harm to patients of health institutions in connection with the treatment prescribed to them is expressed, inter alia, in the fact that it is not possible to obtain knowledge of the certainty of the causal link between the deterioration of the state of health of that patient and the action (omission) of the employees of that institution the imperfection of the level of science and medical knowledge in these cases dictates that reference should be made to the probability of such a link".

In the opinion of the writer, it is not possible to transfer the thesis and assertions inferred in the Supreme Court's judgment of 27 April 2012 uncritically to insurance cases (which do not naturally concern the liability of insurance companies in cases involving medical errors). Any exceptions to the principles of a strict approach to the distribution of the burden of proof (proving and not substantiating the claim as to the principle, but also as to the amount), even resulting from objective evidentiary difficulties, must result from statutes (the Civil Code and the Civil Procedure Code themselves indicate the use of legal and factual presumptions) or exceptional matter or objective evidentiary problems, such as the cases of medical errors and the assessment of medical procedures indicated in the cited case law. Their application to other types of cases, especially life insurance cases, such as those described above, where the failure to establish the cause of death is not the result of objective causes, such as the inability to perform an autopsy due to the absence of or damage to the body or the refusal to perform an autopsy at the request of the family (in this case, it should be pointed out that the family has a demand to perform an autopsy), raises serious doubts and resulted in appeals against the judgments issued by the first-instance courts. The appeals pointed to the lack of legitimacy of the claims (within the meaning of Article 6 of the Civil Code), in the context of the expert opinions issued in the cases, which indicated that there were no grounds for unequivocally recognising that the death of the Insureds had occurred as a result of a heart attack or stroke, and therefore that it was legitimate to grant the claimants benefits under the additional clauses, on the terms and conditions indicated in the insurance agreements and described above.

In the opinion of the drafters of this article, there must be no arbitrary use of facilitation of evidence in insurance cases, even where, due to past negligence and oversight, not all the circumstances justifying a claim can be proved. One can, of course, envisage a number of situations where evidentiary difficulties are caused by circumstances of an objective nature, in which perhaps the claim made becomes obsolete, but one must bear in mind here the particularity of such situations and not the principle that de facto the Claimant does not have to prove the claim, but to make it plausible.

Kami Sztorc

Legal Adviser