CR390 Pre-existing condition exclusion / causation

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CR390

Pre-existing condition exclusion / causation

Exclusion clause – whether claim directly or indirectly attributable to pre-existing condition – test for legal causation

The exclusion clause in the policy read:

In the case of disability and severe illness benefits, [the insurer] will not pay a claim during the first twelve months of the life assured becoming a member if, in the opinion of [the insurer], the claim is directly or indirectly attributable to an injury or illness for which the member sought medical advice for or knew about (or could reasonably be expected to have known about) during the six months before joining the scheme.

The flow chart below details the sequence of events:

PRE-EXISTING CONDITION

During six-month period prior to 1 April 2014: complainant sought medical advice for symptoms of gastro-esophageal reflux disease and hiatus hernia

   → joined scheme on 1 April 2014

↓

FIRST OPERATION

9 June 2014: first operation – hiatus hernia repair with fundoplication

↓

COMPLICATION

Complication of the first operation: fundoplication too tight

↓

SECOND OPERATION

30 July 2014: second operation – second fundoplication to release the first fundoplication

↓

COMPLICATION

Complication of the second operation: perforation leading to intra-abdominal sepsis

↓

THIRD OPERATION

5 August 2014: third operation  – partial gastrectomy to correct perforation and to drain abdominal abscess

As per the timeline above, during the six months before joining the scheme, the complainant sought medical advice for a hiatus hernia and during the twelve months after joining the scheme, her claim based on septicaemia arose.

So the issue to be decided was whether or not the complainant’s claim based on septicaemia was directly or indirectly attributable to the pre-existing hiatus hernia.

There was little doubt that the requirements of factual causation had been met. The more difficult question was whether the requirements of legal causation had been met.

Legal causation requires cause and its consequence to be sufficiently or reasonably closely linked.

The phrase ‘directly or indirectly’ in this instance meant that the pre-existing hiatus hernia did not have to be the proximate cause of the septicaemia for the exclusion to apply.

However, it did not follow from this that any causal link at all would suffice. A line still had to be drawn somewhere. (In the English case of Arc Capital Partners Limited v Brit Syndicates Limited [2016] EWHC 141 the court gave the example of the birth of Captain Ewing, even though it may be said to have led in the chain of causation to his being in the position in which he was killed, could not be considered as causing his death).

Had the word ‘indirectly’ not been there, the line could conceivably have been drawn earlier, possibly after the first operation.

However, to give meaning to the word ‘indirectly’ the line had to be drawn further down the chain of causation.

But no matter how wide the ambit of the exclusion, legal causation requires the event in question to have genuine causative effect.

In this case the pre-existing hiatus hernia and septicaemia were separated by arguably five links in the causal chain, namely, (1) the first operation (to repair the hernia) leading to (2) a complication (the tight wrap) necessitating (3) the second operation (revision surgery to loosen the tight wrap) leading to (4) a further complication (perforation) resulting in (5) the complainant going into septic shock and requiring a third operation to repair the perforation and drain the intra-abdominal abscess.

So whilst the pre-existing hiatus hernia was undoubtedly the factual cause of the septicaemia, it was not sufficiently or reasonably closely linked to the septicaemia to be construed as the legal cause of it. 

Had the septicaemia occurred as a complication of the first operation, it may have been a different matter.  However the septicaemia occurred as a complication of the second operation and therefore the pre-existing hiatus hernia cannot be said to have genuinely formed part of the chain of causation. At best the pre-existing hiatus hernia constituted the context or background against which the claim event (septicaemia) eventually occurred.

It was decided in a provisional ruling that whilst the insurer had proven factual causation, it had failed to prove legal causation and could therefore not rely on the exclusion clause to repudiate the complainant’s claim.

The insurer accepted our provisional ruling and paid the claim.

LS

August 2022

CR314 Pre- existing condition – Death Claim under credit life policy

by with No Comment Case ReportsCredit InsurancePre-Existing ConditionsTopics & Cases

Pre- existing condition CR314

Death Claim under credit life policy – policy containing a pre-existing condition exclusion clause– was there any need for the proposer to undergo medical examination notwithstanding the aforesaid exclusion clause?

Background

On 9 February 2007 the deceased took out a credit life policy covering his death, disability, retrenchment and dread disease. He died on 19 June 2008 as a result of diabetes mellitus. The complainant thereupon lodged a claim but the insurer declined it on the basis of a pre-existing condition exclusion clause in the policy which read:
“No amount shall be payable
(a) in the event of:
(i) Your illness, bodily injury, physical defect, ill-health or any other incident or condition which materially contributed to the Death, Disability or Dread Disease claim against the policy, existed prior to the Commencement of insurance. ”

The certificate provided by a medical doctor at claim stage revealed that the deceased had been diagnosed with sugar diabetes on 25 November 2004, more than 2 years prior to the commencement of the policy. The complainant approached our office, contending that the insurer should have “checked” on his health status before accepting his proposal.

Discussion
It was clear that the pre-existing sugar diabetes had materially contributed to the cause of the policyholder’s death.

As to the complainant’s contention it was pointed out that in general insurers follow one of two courses:
(a) On the one hand they underwrite the proposal, and for this purpose usually require the proposer to undergo medical examinations or to answer a series of medical questions, and on the basis of the information elicited by this means their underwriting may result in them imposing (apart from other possible terms) exclusions for the specific conditions so disclosed.

(b) On the other hand there is no underwriting, which is what happened in the deceased’s case. In such a case the proposer may not be asked any medical questions or required to undergo medical examinations. Instead, the insurer protects itself simply by imposing a general pre-existing condition exclusion clause in the policy contract. The one thing that is then necessary, however, is that the proposer should in such a case always be made aware of the existence and implications of the clause, because he might be unaware of it and as a result suffer possible prejudice.

Conclusion
In this case there was no evidence that the deceased had not been informed of the clause. A provisional ruling was therefore made against the complainant. We received no response, and closed our file.
NS
March 2011

CR294 Pre-existing conditions Hypertension and cholesterolaemia as causes of heart failure –proof

by with No Comment Case ReportsPre-Existing ConditionsTopics & Cases

CR294
Pre-existing conditions
Hypertension and cholesterolaemia as causes of heart failure –proof

Background
The insured’s life policy provided that “No amount shall be payable in the event of your illness, bodily injury, physical defect, ill health, or any other condition which materially contributed to the death claim against the policy, existed (sic) prior to the commencement of the insurance.” The insured died of a heart attack and the insurer rejected the death claim because, prior to the inception of the policy, when the insured life was 55 years old, he had been diagnosed with hypertension as well as cholesterolaemia. The insurer did not submit any blood pressure readings or cholesterol counts to the office, nor did it attempt to prove when these conditions had commenced. One post contractual blood pressure reading of 149/80 was submitted, and as to cholesterol the overall ratio, after conclusion of the contract, was found to be satisfactory. The insured life had no history of any symptoms of heart disease such as angina or shortness of breath. No post mortem was carried out to determine the actual cause of death.

Discussion
The office pointed out that the onus was on the insurer to prove that the pre-existing conditions were the proximate cause of the death, or as the policy put it, that they materially contributed to it.

It is well known that hypertension, even if properly managed, could have a damaging effect on a person’s arteries and heart, especially if it is accompanied by hypercholesterolaemia. Thus if a person had these symptoms before conclusion of the contract and suffers a heart attack resulting in death, insurers usually assume that the pre-existing conditions as such were a cause of the heart attack. It is not in every case, however, that those conditions will necessarily have contributed to the heart attack. In the final analysis the real cause is always a question of fact.

The office asked for expert medical opinion to assist with the assessment of the available evidence. The first expert said he presumed the alleged pre-existing conditions to have been present for some years. In his opinion the two factors are highly significant relating to coronary heart disease. They promote atherosclerotic vascular damage which persists despite adequate control aimed at reducing the progress of such damage. In his opinion the insurer had therefore satisfied the onus resting on it.

The second expert’s opinion was that the post-contractual blood pressure reading had not been bad for a person of the life insured’s age. Considering the evidence and the probabilities he could not conclude that the pre-existing conditions materially contributed to the death.

The office was not persuaded by the views of the first expert. It was of the opinion that speculation is not sufficient, and that the seriousness of the particular conditions and their duration were relevant and should therefore have been proved, which they were not. A person whose blood pressure is only slightly above normal is not as liable to heart failure as a person who has suffered over a prolonged period from blood pressure that is far above normal.

Result

The office ruled that there was insufficient evidence to support a finding, on the probabilities, that either of the alleged risk factors eventually materialised as having contributed to the cause of the insured’s death.

MFBR
October 2009

CR158 Onus of proof – pre-existing condition

by with No Comment Case ReportsPre-Existing ConditionsTopics & Cases

CR158

Onus of proof – pre-existing condition

Facts

The complainant was covered for permanent disability under a protection plan that was sold to him telephonically on 7 February 2005. The complainant was diagnosed with major depression on approximately 10 February 2005 and instituted a claim. The insurer repudiated it because according to medical evidence the condition claimed for existed prior to the inception of the policy.

The exclusion clause reads as follow:

“The insurer shall not be obliged to make any payment in respect of any condition or event arising directly or indirectly from or traceable to any physical defect or medical condition of which the Life Assured was aware and which had its origin prior to the issue of the policy.”

The attending doctor’s statement states the following:

“When did the symptoms first appear or the accident happen? 2003
Has the patient suffered from the same or similar condition in the past? Yes
If yes, please give details February 2005
Are you aware of any condition … which may have contributed directly or indirectly to the condition above? Clinically depressed since 2003 and psychiatric treatment”

After the insurer repudiated the claim, the complainant provided them with a letter from the attending doctor where he stated the following:

“As gevolg van ‘n misverstand tussen my en die pasiënt wil ek net graag vraag 4 & 6 en 12 regstel. Gemelde pasiënt se simptome het eers gedurende 2005 begin en nie gedurende 2003 soos in gemelde verslag genoem is.”

The medical records from another doctor states the following:

“Date symptoms first started February 2005, had a “collapse” 2003, ?CVA, but NOT anxiety attack.”

The insurer requested clinical notes from the complainant’s treating GP and the abovementioned two doctors. They only received one doctor’s notes.

Discussion

The normal position is that when an insurer wants to rely on an exclusion clause, the onus is on them to prove that they are entitled to do so and it is for them to obtain the necessary medical evidence they wish to rely on. However, in this instance the complainant’s own doctors’ reports created doubt, and it was our opinion that the insurer was entitled to rely on the exclusion clause until the complainant provided them with medical evidence to the contrary.

Result

The complaint was not upheld.

AS
March 2006