CR351 Exclusions / Causation Pre-existing condition exclusion clause

See too: Causation [NEW], CR,

CR351
Exclusions / Causation

Pre-existing condition exclusion clause – dispute as to proximate cause of death – whether pre-existing conditions directly or indirectly caused death, or whether death was caused by cancer which emerged after cover commenced

Background

1. The insured had a credit insurance policy since 2008, with death and disability cover for the outstanding balance of his home loan. In August 2010 and April 2011 he took re-advances on his loan of R10 000 and R47 400 respectively, totalling a further R57 400. In terms of his policy the sum insured was automatically increased to match the new outstanding loan.

2. In September 2011 the insured was diagnosed with lung cancer. He died on 27 June 2012. His wife submitted a death claim, and the insurer paid the outstanding balance prior to the re-advances, but refused to pay the remainder in respect of the re-advances taken in 2010 and 2011.

3. The insurer cited an exclusion clause in the policy, which reads as follows:

“13 EXCLUSIONS

[The insurer] will not be obliged to make payment in respect of any claim arising from any condition or event arising directly or indirectly from or traceable to:

13.4 Pre-existing conditions

If a life assured

13.4.1 dies within 24 months of commencement of the policy
13.4.2 becomes disabled at any time during the duration of the policy,

due to any condition, physical defect, illness, bodily injury or disability which the insured was aware of and/or received medical advice or treatment for prior to the commencement date or date of any reinstatement, no claim will be paid and all premiums paid will be forfeited.

In the event of any increase in the amount of any benefit this condition shall also apply to the increase with effect from the date of the increase”. [my emphasis]

4. The insurer stated that it had received a report from the insured’s family doctor indicating that he was diagnosed with hypertension in 1991 and diabetes mellitus in 1996. He was treated for these conditions until death. He was also hospitalised for a bypass graft in 2001.
5. The death notice form completed by the hospital where the insured died stated as the “Immediate cause of death”: “Pneumonia”, as the “Underlying cause”: “Cardiac failure”, and then, under “Other significant conditions contributing to death but not resulting in underlying cause given above”: “Carcinoma lung”. The family doctor who completed the death claim form stated, as “Cause of Death”: “Cardiac failure / Myocardial infarct”.

6. The insurer stated that since the insured had been diagnosed with ischaemic heart disease, hypertension and diabetes mellitus prior to the date of further lending (and increase of benefit), and since this was directly linked to the cause of death within 24 months of that date, the exclusion applied in respect of the further loans.

7. The insured’s son lodged a complaint with our office, arguing that the primary and material cause of death was cancer, which was not a pre-existing condition when the two advances were taken out. He attached a letter from his father’s oncologist dated 27 September 2011, in which the doctor stated that his father had been diagnosed with advanced lung cancer, and that “this is a very serious diagnosis and is eminently life threatening”. The complainant argued that “for obvious medical reasons, organ failure such as heart failure will be an immediate cause of death, but this should not be relied upon to repudiate the claim because it was the cancer that materially contributed towards the death”.

8. In response to the complaint the insurer reiterated its stance. The complainant then sent us a further letter from the oncologist providing more details about the course of the insured’s illness after he was diagnosed with advanced inoperable lung cancer. Chemo- and radiotherapy was commenced but it was never expected that he would survive very long, and in fact he deteriorated rapidly. The oncologist stated:

“The admission into hospital around the time of his death was because of severe life threatening and end stage disease resulting in uncontrolled symptoms. It is quite clear that the main contributing factor towards his death is the underlying diagnosis of cancer itself with secondary contributions towards his death by the added challenges of cancer treatment, spinal cord involvement as well as the invasion into his heart. Pneumonia, hypertension and cardiac failure are just underlying mechanisms following the former”.

9. The insurer maintained that since there were different opinions from different medical practitioners about the cause of death, the diagnosis provided in the official legal notice of death should be accepted, and that this therefore invalidated the claim.

Discussion

10. We wrote to the insurer, stating that the question we had to answer was whether the insured’s death arose directly or indirectly from (or was traceable to, which means much the same thing) any pre-existing conditions. In other words, the question was whether any pre-existing conditions directly or indirectly caused the death. There must be a causal connection between the pre-existing conditions and the death in order for the exclusion to apply.

11. It was a fact that the insured had hypertension, diabetes mellitus and cardiac failure before he took out the increases in cover in August 2010 and April 2011, and that his death on 27 June 2012 occurred within 24 months after he took out the additional cover.

12. However, we stated that we were not convinced that his death arose directly or indirectly from these pre-existing conditions.

13. In establishing causation the well-known “but for” (conditio sine qua non) test is useful. A causal link is present if one fact would not have ensued if another fact had not preceded it.

14. Applying this test to the facts of this case, it was clear that the lung cancer, diagnosed in September 2011, was the primary or direct cause of the insured’s death. One could say on the probabilities that, but for the inoperable lung cancer, the insured would not have died. The lung cancer therefore caused his death.

15. The fact that the notice of death and the death claim form recorded the immediate cause of death as cardiac failure/myocardial infarction/ pneumonia did not detract from this; the cancer which had invaded his heart and the cancer treatment with its known risk of damaging heart muscle and arteries would have had the result that these secondary effects would be the immediate cause of death, but not the primary or proximate cause. As the oncologist had stated, these were secondary complications, following the cancer.

16. However, one could not, in our view, say on the probabilities that, but for the pre-existing hypertension, diabetes and cardiac condition, the insured would not have died when he did. As confirmed by the medical evidence, when the cancer was diagnosed in September 2011, “at that stage, no symptoms or clinical evidence of cardiac involvement were recorded”. There was no evidence to suggest that the pre-existing conditions on their own could have caused his death on 27 June 2012. The pre-existing conditions were therefore not the primary cause of death. But for the fact that he was struck by cancer in 2011, he would in all likelihood still have been alive beyond the 24 month period.

17. The ambit of the causation requirement was widened by the words “directly or indirectly”. However, there were no words in the policy which allowed for an interpretation that the insurer’s liability should be excluded if any pre-existing condition merely contributed to the death, or possibly accelerated it, as may have happened in this case, the cancer treatment having damaged his already compromised heart muscle and coronary arteries.

18. In our view, the words “arising directly or indirectly from” implied that there would have to be a causal connection between any indirect cause and the direct or proximate cause, as well as between the direct cause and the death. In other words, the pre-existing conditions could be said to have indirectly caused the death if the pre-existing conditions were causally connected to the direct cause of death, ie cancer, in the chain of causation.

19. In our view the medical evidence did not establish that the hypertension/diabetes mellitus/cardiac failure (as an indirect cause) played any role in or contributed to the onset of cancer, the direct and primary cause of death. It could not therefore be said that the pre-existing conditions cited were indirectly causative of the insured’s death.

Result

20. The insurer agreed with our analysis, and paid the claim.

SM
September 2014

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