CR299 Exceptions, Exclusions and Waiting Periods -Exclusion clause – causation.

Exceptions, Exclusions and Waiting Periods CR299

Exclusion clause – causation.

BACKGROUND

The deceased, a 34-year old male, was granted cover under a policy the inception date of which was 4 September 2006. The policy was at the same time ceded to a financial institution to cover his housing loan. He died on 8 August 2007 as a result of natural causes.

Upon a claim being lodged with the insurer, it was established that the deceased had been admitted to a hospital from 20/6/2007 to 20/7/2007 with disseminated carcinoma of unknown origin, that various investigations including scans, biopsies and endoscopies failed to trace the primary cancer, and that the cause of death was indicated as spinal and liver metastases from unknown primary.

What was also established was that he had been diagnosed as HIV positive in February 2006 and treated for disseminated TB in March 2006, that he had commenced HAART (highly active antiretroviral treatment) in June 2006, and that the treatment was successful and completed in January 2007.

In denying liability the insurer relied on an exclusion clause in the policy that excused liability for any claim that should arise directly or indirectly from a condition that existed at the commencement of the policy. In this regard it sought support from a certificate completed by the deceased’s medical attendant which was provided to the insurer at the time that the claim was lodged. Therein the doctor answered “Yes” to the question whether there was any reason to believe that the deceased’s death was in any way due to or arose directly or indirectly, entirely or partially from AIDS or HIV infection. The doctor also noted that the deceased was “found to be HIV infected however no evidence that this was opportunistic cancer.”

The insurer contended that “based on the fact that HIV, which is a condition that led or contributed directly or indirectly to the cause of death and was diagnosed and treated prior to policy inception” it was entitled to rely on the abovesaid pre-existing condition exclusion clause.

DISCUSSION
We referred the case to an independent medical practitioner for an opinion and he reported:

“It is therefore indisputable that the insured was HIV positive prior to the inception date of the policy … The question that remains to be answered is whether HIV/Aids can directly or indirectly cause a cancer of unknown origin.

I have done a renewed literature search on the relationship between HIV/Aids and cancer, and have attached two relevant articles:
Annexure A: “HIV Infection and Cancer Risk”, published by the US National Institus of Health’s National Cancer Institute.
Annexure B: “Cancer in the HIV population”, an overview article by Jennifer Newcomb-Fernandez.

Both these articles agree on the following associations between HIV and certain types of cancer:
1. Aids defining cancers
These are cancers which, when diagnosed in an HIV positive individual, indicates that the patient is in clinical Aids Stage IV. They are Kaposi sarcoma (800 times the risk of an HIV negative person), Non-Hodgkins lymphoma (7x increased risk) and cervical cancer (3x risk).
2. HIV causes an increased risk of contracting the following cancers:
Anal cancer (9x risk), Hodgkins lymphoma (10x), liver carcinoma (3x), lung cancer (4x) and testicular cancer (1-8x).

3. HIV poses no increased risk in the following cancers: breast cancer, colorectal cancer, prostate cancer, and other common cancers.

This case is complicated by the fact that the primary cause of the cancer is unknown. It is therefore impossible to speculate whether the positive HIV status increased the likelihood of contracting the cancer, which would have been possible had we known the origin of cancer.

However, it is relevant to note that, according to the hospital records of the ABC Hospital, the following investigations were done in attempt to find the primary:
• MR scan spine
• CT scans chest, abdomen and spine
• Biopsies of the liver metasteses, stomach and bone marrow
• VQ scan of the lungs
• Colonoscopy
• Gastroscopy
These tests would have identified the primary cause if it had been Kaposi sarcoma, Hodgkins- or non-Hodgkins lymphoma, anal cancer, liver cancer and lung cancer.

This means that all the cancers listed in categories 1 and 2 above, have effectively been rules out as primary cancers, in which case the likelihood that the primary cancer was unrelated to HIV/Aids, is increased significantly.

I will therefore conclude that, on the balance of probability, chances are in favour of the fact that the primary cancer was not related to HIV/Aids in this case. On the basis of these facts I would advise the insurer to consider the claim.”

CONCLUSION
We provided a copy of the report to the insurer, who settled the claim.

HE
March 2011

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