Should the insurance company pay his medical bills?

I read an interesting article in the Toronto Star about a man who went on a trip and was stricken with a heart problem and his insurance company refuses to pay his medical bills while he was on the trip.I will submit to you the actual article and then I will add my comments at the end of the article.

Mistakes can be costly: For one wrong answer, a pensioner in Toronto is now on the hook for about $65,000 in medical bills.

About two months ago, Leon van Witsen, 89, filled out papers for medical insurance because he and his wife were travelling to Garland, Texas to see their daughter. He’d done it before, he did it again.

Among the dozens of questions was this one: “Do you have high blood pressure?” Van Witsen’s hypertension is under control, thanks to treatment, so he wrote “no.”

Days later, he felt dizzy and couldn’t catch his breath in Texas and wound up in hospital. That’s when the insurance company told van Witsen’s family that the senior was on his own where the bills were concerned. His claim was denied once they discovered van Witsen was on blood pressure medication, according to the family.

“It’s harsh, really harsh,” said Patricia van Witsen, his daughter-in-law, who lives in Calgary. “I can understand where the insurance company is coming from but they have to show some compassion.”

On Thursday evening, an RBC Insurance spokesperson said the claim is being “escalated” for further review, but would not elaborate.

Van Witsen, a World War II veteran, frequently travels to Texas and Holland, where he is originally from, his daughter-in-law said. “He always has travel insurance and there’s never been a problem. He’s never been sick too.”

This time, van Witsen and his wife, Alida, landed in Texas on June 17, 2011. A couple of days later, he was unwell so his daughter, Marian Rogers, took him to a clinic. The doctors got in touch with van Witsen’s doctors in Toronto and subsequent tests showed he had congestive heart failure. He was given some medication and he returned home. (in Texas)

But a couple of days later, his health took a turn for the worse and he was taken to hospital and put in intensive care. “He was struggling to breathe and losing consciousness,” Rogers said in a telephone interview from Texas. “It was pretty bad for a few days here.”

Rogers was also told by the insurance company that van Witsen had a pre-existing heart condition that he hadn’t mentioned while filling out insurance forms.

“Before he left Toronto, there was concern that he could have a heart problem but he was told he was OK and could travel,” said van Witsen’s daughter-in-law in Calgary, adding that he did not know that he had a heart condition.

A representative of the insurance company told the family it would refund what van Witsen paid for insurance, she added.

The family estimates his hospital stay could cost as much as $50,000; the doctors’ bills will come later.

“We are very frustrated and confused,” said Rogers. “He’s been denied total coverage and we don’t know what to do.”

One reason the family has gone public with van Witsen’s insurance woes is “so that other seniors can take their medical insurance papers to their doctors,” she said.

The family has tried to keep the insurance muddle as low-key as possible around van Witsen, however, so he can focus on getting better. “I think he knows something is amiss but not the enormity of it,” said Rogers.

Meanwhile, van Witsen was brought to Toronto on Thursday in an air ambulance and taken to Toronto General Hospital. His condition is stable but he still needs care.

The air ambulance cost him another $18,000.

Here are my comments

I refer you to the question he was asked on the form. Keep in mind that there only two possible answers he could give. They were yes or no choices.

The form asked, “Do you have high blood pressure?” He ticked of the ‘NO’ box. The form didn’t ask if he ever had high blood pressure in the past. It asked him if he was having high blood pressure at the time he was filling out the question.

Since he was taking medicine that would keep his high pressure normal and he felt that his high pressure was normal because of the ingestion of the medicine, he honestly answered the question when he ticked off the ‘NO’ box.

The heart pumps blood into the arteries with enough force to push blood to the far reaches every aspect of the human body from the top of the head to the bottom of the feet. Blood pressure can be defined as the pressure of blood on the walls of the arteries as it circulates through the body. Blood pressure is highest as its leaves the heart through the aorta and gradually decreases as it enters the arteries and the smaller blood vessels (arterioles, and capillaries). Blood returns in the veins leading to the heart, aided by gravity and muscle contraction.

Hypertension is the medical term for high blood pressure. It is known as the ‘silent killer’ since it has no initial symptoms but can lead to long-term disease and complications.

Many people have high blood pressure and don't know it.

Important complications of uncontrolled or poorly treated high blood pressure problems include heart attacks, congestive heart failures, strokes, kidney failures, peripheral artery disease, and aortic aneurysms (weakening of the wall of the aorta, leading to widening or ballooning of the aorta). Public awareness of these dangers has increased. High blood pressure has become the second most common reason for medical office visits.

Blood pressure is measured with a blood pressure cuff and recorded as two numbers, for example, 120/80 mm Hg (millimeters of mercury). Blood pressure measurements are usually taken at the upper arm over the brachial artery of the arm. The doctor or nurse pumps the cuff tighter (it can become painful around the arm as the cuff is being tightened) and when this is being done he or she then releases the tightness of the cuff and the readings are then noted.

The top, larger number is called the systolic pressure. This measures the pressure generated when the heart contracts (pumps). It reflects the pressure of the blood against arterial walls. The bottom, smaller number is called the diastolic pressure.

This reflects the pressure in the arteries while the heart is filling and resting between heartbeats.

The American Heart Association has recommended guidelines to define normal and high blood pressure.

Normal blood pressure is less than 120/80
Pre-hypertension is 120-139/ 80-89
High blood pressure (stage 1)is 140-159/90-99
High blood pressure (stage 2) is higher than 160/100

As many as 60 million Americans have high blood pressure.
Uncontrolled high blood pressure may be responsible for many cases of death and disability resulting from heart attack, stroke, and kidney failure.

According to research studies, the risk of dying of a heart attack is directly linked to high blood pressure, particularly systolic hypertension. The higher your blood pressure, the higher the risk. Maintaining lifelong control of hypertension decreases the future risk of complications such as heart attack and stroke.

High blood pressure itself usually has no signs or symptoms. Rarely, headaches ever occur. You can have high blood pressure for years without knowing it. But in Mr. van Wisten’s case, there was a sign that he had high blood pressure but he had no way of knowing that the problem he had with his breathing was in any way connected to his blood pressure. I will explain this later in this article.

Today's blood pressure medicines can safely help most people control their blood pressure. These medicines are easy to take. Blood pressure medicines work in different ways to lower blood pressure. Some remove extra fluid and salt from the body to lower blood pressure. Others slow down the heartbeat or relax and widen blood vessels. Often, two or more of these kinds of medicines will work better than one.

ACE inhibitors keep your body from making a hormone called angiotensin II. This hormone normally causes blood vessels to narrow. ACE inhibitors prevent this, so your blood pressure goes down. If Leon was taking this kind of medicine, in all likelihood his blood pressure would be normal. But even if it wasn’t and it was higher than it should have been when he filled in the form, this won’t let the insurance company off the hook. They have to prove that he knew that at the time he was filling in the form, his blood pressure was high. They could never prove that since as I said earlier, there is no way he could have known one way or another while he was filling out the form as to whether or not his blood pressure was high.

If he believed that his medicine he was taking was reducing his blood pressure to normal then was he right to state ‘NO’ to the question since the question was asked in the present tense and not the past tense. I will deal with that question later in this article.

Now I will refer you to his second question in which his answer gave him a problem with his insurance company.

The insurance company also claimed that he didn’t let them know while preparing his form that he had a pre-existing heart problem. They arrived at that decision because when he began having difficulty in his breathing while he was in Texas, tests later showed that he was suffering from ‘congestive heart failure’.

Congestive heart failure (CHF) is a condition in which the heart's function as a pump is inadequate to meet the body's needs. When the heart’s pump is inadequate to deliver oxygen rich blood to the body, this can create real problems. Many disease processes can impair the pumping efficiency of the heart to cause congestive heart failure. The symptoms of congestive heart failure vary, but can include fatigue, diminished exercise capacity, shortness of breath, and swelling.

As the body becomes overloaded with fluid from congestive heart failure, swelling (edema) of the ankles and legs or abdomen may be noticed. This can be referred to as "right sided heart failure" as failure of the right sided heart chambers to pump venous blood to the lungs to acquire oxygen results in buildup of this fluid in gravity-dependent areas such as in the legs. The most common cause of this is longstanding failure of the left heart, which may lead to secondary failure of the right heart.

Fuid may accumulate in the lungs, thereby causing shortness of breath, particularly during exercise and when lying flat on his bed. In some instances, patients are awakened at night, gasping for air. When a person is suffering from a shortness in breath because of the excess fluid in his lungs, sleeping in a comfortable sofa chair makes it easier for him to breathe when he is sleeping because sitting up makes his breathing easier.

This is a subject I am familiar with. In 1999, I had a heart attack and I required a triple bypass heart operation because the four major arteries feeding my heart were clogged quite badly. The first one was clogged forty percent, the second one, ninety percent, the third one, ninety percent and the fourth one, ninety-nine percent.

When you are given a heart bypass operation, they take out your major veins from your legs and they are used to replace your clogged arteries. When the oxygenated blood goes to your feet and the oxygen is used up, the un-oxygenated blood has difficulty returning to your heart because it has to find its way back via the capillaries in your legs. This can make you weak and this is why I am classed as a disabled person. It also causes swelling in your feet.

However, sometime in the summer of 2010, I noticed that I was having difficulty in my breathing. As the weeks progressed, my breathing became much more laboured. At first, I thought it was because of mucus forming in my bronchial tubes (airway). I began taking over-the-counter medicine to reduce the mucus. It didn’t work. It just kept getting worse. By the time the beginning of October came about, I was convinced I had pneumonia. My breathing was so laboured, I was afraid to go to sleep for fear that I would die in the middle of the night.

On October 5th I went to see my doctor. He sent me to a cardiologist who did an electrocardiogram (ECG) test which is a noninvasive test that is used to reflect underlying heart conditions by measuring the electrical activity of the heart. By positioning leads (electrical sensing devices) on the body in standardized locations, information about many heart conditions can be learned by looking for characteristic patterns on the ECG. As instructed, I returned to my doctor with the ECG chart and he immediately said that I was suffering from congestive heart failure and because of that, excess fluid was getting into my lungs which resulted in me slowing drowning in my own body fluid.

He told me to go directly to the emergency ward of our nearest hospital and they did the test also and came to the same conclusion. I was immediately placed on a gurney and given oxygen. This was the first time in months that I could breathe comfortably. Then they gave me a very powerful diuretic which provided a means of forced diuresis which elevates the rate of urination. All diuretics will increase the excretion of water from our bodies. Within minutes, I began urinating and over a period of six hours, I had urinated several litres of the excess fluid from my body. Later, my doctor gave me a prescription for a diuretic which resulted in me urinating at least ten times a day. Part of the reason for this is because of my age. As man gets older, his prostate grows larger and this causes him to urinate more often than when he was younger but the diuretic medicine is what was and still is doing the trick.

One of the great side effects of this treatment became more obvious to my friends than it did to me. Before I went to the hospital, I weight 300 pounds. Within a month, my friends were telling me that I must have been losing weight because I looked thinner. Nine months later, my weight was 255 pounds. Since I hadn’t changed my eating habits or my physical activity, I can only attribute this to the gradual release of excess fluid in my body.

The amount of water in a human being can range form 50 to 80% because there is body fluid between all of our cells which makes up the bulk of the water in our bodies. The extra fluid in the body may cause increased urination, particularly at night.

I have gone to the trouble to explain what congestive heart failure is by referring to my own experience with it so that you will understand why it is quite conceivable that Mr. van Witsen had no idea he was suffering from congestive heart failure until he was taken to the clinic in Texas. If that is the case, then he didn’t lie when he didn’t make any reference to having any heart problems when he was filling out the insurance form.

Now obviously, he had a pre-existing heart problem because congestive heart failure doesn’t come to you suddenly. You could have it for years and not know it unless a ECG test is given to you. I probably had it for years and it was only when I began having difficulty breathing that I finally went to see my doctor and that is when I learned of it. Had I not had a problem with my breathing, there would have not been any reason for the ECG test and I may have gone on living for another couple of years before the breathing problems finally came to me. The same could apply to Mr. Van Witsen.

Now the insurance company is re-evaluating his claim and for good reason. In the year 2002, the Supreme Court of Canada ruled in Whiten v. Pilot Insurance Co., that because the insurance company was not acting in good faith or fair dealing with a homeowner who lost her home to a fire and the insurance company wouldn’t cover her claim for the loss, the one million dollar award for punitive damages awarded to her by the jury that heard her case, was to stand. The jury decided a powerful message of denunciation, retribution and deterrence had to be sent to the respondent and they sent it. For this reason, insurance companies are taking great steps to make sure that their decisions will stand up before a court with or without a jury.

The Law

In the case of contracts, an insurance contract for example, a failure to disclose a material fact, however innocent from the moral point of view, or a misstatement of fact, however innocent from the same point of view, is conduct to which adjusters of insurance companies commonly apply the term “fraud”.

The uberrima fides doctrine (absolute candor and honesty) is a longstanding tenet of insurance law which holds parties to an insurance contract to a standard of utmost good faith in their dealing. It places a heavy burden on those seeking insurance coverage to make full and complete disclosure of all relevant information when applying for a policy.

In Derry v. Peek (1889), [Lord Herschell said at p. 13 All English Reports;

“I think it is important that it should be borne in mind that the common law action of deceit (decisions of judges) differs essentially from one brought to obtain rescission of the contract on the ground of misrepresentation of a material fact. The principles which govern the two actions differ widely. Where rescission is claimed, it is only necessary to prove that there was misrepresentation. Then, however honestly it may have been made, however free from blame the person who made it, the contract, having been obtained by misrepresentation, cannot stand.” unquote

Supreme Court of Canada Justice Peter Cory referred to the decision of Lord Mansfield in Carter v. Boehm as follows:

“The keeping back such circumstance is a fraud, and therefore the policy is void. Although the suppression should happen through mistake, without any fraudulent intention; yet still the under-writer is deceived, and the policy is void; because the risk run is really different from the risk understood and intended to be run, at the time of the agreement.” unquote

I think what this means is that if van Witsen had been previously told that he was suffering from congestive heart failure and forgot to mention that he was suffering from that heart problem when he filled out the insurance form, his forgetfulness would be negligence on his part and the insurance company could rightfully refuse to honour his claim.

I suppose the logic in that kind of decision is based on the premise that anyone could claim they merely forgot to mention their heart problem. It is no different that a man who by mistake, presses the gas pedal in his car when he unknowingly had the car in the reverse mode and runs over someone. That mistake doesn’t mean that he is not responsible for his actions.

In Ford v. Dominion of Canada General Insurance Co., Justice Peter Cory speaking for the Court, agreed with the minority reasons of Justice Philp in the Manitoba Court of Appeal which provided that:

“A contract of insurance is uberrima fides; utmost good faith must be observed by both parties. It has been said that the relationship between an insurer and an insured is one in which the insurer knows nothing of the risk to be undertaken, and the insured knows everything. From this relationship arises the obligation of the insured to disclose all material facts so that the risk the insurer undertakes will be a risk he intends to undertake.”

A fraudulent misrepresentation consists of a representation of fact made without belief as to its truth or made recklessly without regard to whether it is true or false and which causes the person to whom it was made to act on it.

Was Mr. van Witsen reckless in not attempting to find out why he was having difficulty in breathing before he signed the form? In my opinion, he had to have known that something was definitely wrong with him because shortness of breath is not something that suddenly occurres if you are suffering from congestive heart failure. It hits you gradually and I suspect that by the time he had signed the form, he was have great difficulty in breathing. Had he seen his doctor, he would have then known that he was suffering from congestive heart failure. This was not what he did and in my opinion, that was rather stupid on his part. He could have died in Texas since he must have let his shortness in breathing go on for so long.

But as I mentioned earlier, did he know that he was suffering from congestive heart failure when he signed the form? Probably not. I too didn’t know that I was suffering from congestive heart failure during the months I was having difficulty in my breathing.

Where does the insurance law stand in the case of a person who is seeking travel insurance and doesn’t know that he is suffering from a heart problem or from high blood pressure? What protection does he have then if he is required to be in a hospital while out of the country?

Well unfortunately for Mr. van Wisten, he is facing an uphill battled with respect to these two reasons why the insurance company doesn’t wish to pay for his medical expenses he incurred in Texas.

As I said earlier, the Supreme Court of Canada ruled that even though the suppression of the true nature of his ailments came about by Mr. Wisten’s honest mistake without any fraudulent intention on his part; the under-writer of the policy was still deceived and for this reason, the policy is void. This is because the risk that actually incurred was really different from the risk the policy holder believed and the insurance company accepted on the basis as to what was written by Mr. Wisten’s honest belief that he was not suffering from any of the ailments the insurance company was concerned with.

There is a very important lesson to be learned from this. If you are going to take out a traveller's insurance policy with respect to any medical problems that may come up while you are travelling, take the insurance form to your doctor and have him do a complete medical on you. If you are not suffering from any of the ailments listed in the insurance form, then check them off in the ‘no’ box and ask your doctor to initial the form. If he won't initial the form, that isn't a big deal. His records will show what your real health was at the time of your visit to him.

If you are suffering from any of the ailments listed on a form that the insurance company gives you, then admit to it. It is better to have to pay a higher premium for this than simply ignore the coverage in the first place. If Mr. van Wisten had chosen to ignore the insurance coverage, he definitely would have been stuck with those high medical bills. If he had gone to his doctor and subsequently he wrote on the form that he had those problems; as I said earlier, he would have paid a higher premium but he wouldn’t have been stuck with those high medical bills.