CR222

Interpretation – surgery performed not included in list of surgeries described in the policy – definition of “foreign body”

Background

Mr and Mrs X were covered under a surgery protection plan. The policy listed the surgeries covered and the benefit per surgery was a predetermined percentage of the sum insured.

Mrs X was operated on to remove a tumour from her brain.

The insurer rejected her claim to the benefit asserting that the particular surgery was not covered by the policy. The surgery listed in the policy was:

“Craniectomy / Craniotomy With Excision Of Foreign Body From Brain”.

The benefit for this listed surgery was 100% of the sum insured amounting to R25 000.

The insurer contended that a brain tumour, being a morbid growth of tissue, was not a foreign body for the purpose of the definition.

The complainant argued that as the policy did not define “foreign body”, it could be anything from a tumour to a bullet from a firearm.

Assessment

A meeting of adjudicators considered the following meanings:

“craniectomy – the surgical removal of a portion of the cranium”;

“craniotomy – any surgical opening into the skull, performed to relieve intercranial pressure, to control bleeding, or to remove a tumour” (own emphasis);

“foreign body – an object or piece of extraneous matter that has entered the body by accident or design”.

The meeting took the view that, apart from the interpretation of “craniectomy”, the existence and removal of a foreign body from the brain was not critical for the procedure to qualify as a craniotomy. The phrase “with excision of foreign body from the brain” may well have been inserted to make assurance doubly sure to cater for the rare event of it becoming necessary to remove a foreign body, such as a bullet, from the brain. To restrict the procedure to that eventuality would be to confine the procedure so narrowly that it would be of little practical significance to any policyholder. At worst for the complainant the clause can be said to be ambiguous as being capable of being interpreted narrowly or broadly i.e. that the procedure covers craniotomy for the removal of a tumour as well as for the removal of a foreign body on the brain – in which event it is to be interpreted, in line with the contra proferentum rule, against the insurer and in favour of the complainant. In the result the meeting was of the view that the payment of the claim should be considered.

Resolved

The insurer responded that the claim of R25 000 had been paid.

AR
MAY 2007