CR250
Definition of cancer – is the insurer’s interpretation of the definition too strict?
Background
Mrs W had a policy that provided cover inter alia for cancer. The cancer benefit was set out as follows in the policy summary:
“5.1.1 Subject to the exclusions below, if the
5.1.1.1 Female life insured is diagnosed with cervical cancer, genito-urinary cancer or breast cancer, …
the relevant cancer lump sum shall be payable to the policyholder.
…
5.1.4 Cancer means a disease that is manifested by the presence of a malignant tumour characterised by the uncontrolled growth and spread of malignant cells and the invasion of normal surrounding tissue… Any skin cancer, cancer-in-situ and any tumour that is histologically described as pre-malignant or showing early malignant change shall not qualify as ‘cancer’.”
The cancer benefit was dealt with as follows in the contract:
“5.2.2 Only a disease that is manifested by the presence of a malignant tumour characterised by the uncontrolled growth and spread of malignant cells and the invasion or normal surrounding tissue shall qualify as ‘cancer’.
…
5.2.5 Any skin cancer, cancer-in-situ and any tumour that is histologically described as pre-malignant or showing early malignant change shall not qualify as ‘cancer’.
…
5.3 Female cancer
…
5.3.2 Genito-urinary cancer
If the life insured is diagnosed with genito-urinary cancer (including ovarian cancer, cancer of the fallopian tubes and uterine cancer), the cancer lump sum shall be payable to the policyholder.”
Mrs W underwent ovarian surgery, as malignancy was suspected. A claim was submitted, but the insurer declined the claim because
“…her initial cytology results (from the fluid of the Pouch of Douglas) appeared to have been consistent with metastatic adenocarcinoma, however further investigations including histology of both ovaries revealed no evidence of infiltrating cancer. Thus we declined the claim on the policy wording of clause 5.2.5: “Any skin cancer, cancer-in-situ and any tumour that is histologically described as pre-malignant or showing early change shall not qualify as cancer.””
Assessment
We referred the matter to an independent medical consultant for an opinion and he stated the following in his report:
“Mrs W underwent laparoscopic resection of a right ovarial mass on 05/03/2007. During the procedure the surgeon noted fluid in the Pouch of Douglas and ‘enkele uitsaaiings’ at the sigmorectal junction, which, being dangerous to resect, were left in situ, without biopsy – ‘dis gevaarlik om hierdie weg te sny’. In addition the surgeon mentions a small area, 1cm x 1cm in the Pouch of Douglas which he suspected to reflect stage IC ovarian carcinoma.
The resected material was submitted to Laboratory A and the histological diagnosis of the right ovarian tumour was papillary cystadenoma with borderline malignancy.
Fluid aspirated from the pelvic pouch was sent to Laboratory B. The cytological diagnosis was ‘metastatic adenocarcinoma’.
…
This is an unusual case where the histologist was unable to find evidence of infiltrative malignancy at, what presumably was, the primary tumour site, whereas an unequivocal cytological diagnosis of adenocarcinoma was made on examination of cells in the peritoneal fluid, by a cytologist at a different laboratory. This indicates that the cytologist is convinced that the cells are not pre-cancerous but are diagnostic of cancer arising in a solid organ, which in this case would be the ovary. The cancer must have spread to the peritoneum for adenocarcinoma cells to have been present in fluid in the Pouch of Douglas. This indicates metastasising malignancy.
The cytological diagnosis of carcinoma was supported by the intra-operative observation of the surgeon of ‘metastases at the sigmo-rectal junction’, and an area in the Pouch of Douglas considered by the surgeon to be malignant invasion. He felt that it would have been dangerous to biopsy these sites.
Unfortunately, the two reports come from different laboratories, presumably unaware of the disparate diagnoses. Probably Laboratory A would have done further resections of the resected tissue, on receipt of the cytological diagnosis, with the probability of finding overt malignancy.
With this data, I would conclude that the diagnosis of invasive adenocarcinoma has been adequately substantiated and that the insurer would be evading the underlying function of the policy by insisting on strict adherence to the contractual definition.”
A copy of the report was provided to the insurer. The insurer discussed the matter with their re-insurer’s Chief Medical Officer who in turn concurred with the independent medical consultant’s opinion.
Result
The insurer settled the claim in respect of the cancer benefit.
HE
May2008
