Insurance Company Claims Acoustic Neuroma Is Not In The Brain

[mucha]

My wife was diagnosed with an Acoustic Neuroma which was removed leaving her deaf in one ear. Our Trauma Insurance (Critical Illness) company has denied our claim on the basis that whilst she fulfils every aspect of their definition, they consider that it did not occur "in the brain". These three words appear in the policy definition. Needless to say we are in the process of suing them and require all the help we can get, particularly international opinion/perspectives - we are based in Australia. I was hoping others on this forum could assist with any legal case precedents and or expert opinions that could assist us.

I think they expect us to back down in frustration as they have more financial resources than us, but we are committed to go all the way.

Any help or pointers would be greatly appreciated.

[Jim Scott]

mucha ~

As an American, I'm not conversant with the intricacies of the Australian health care system but I wanted to acknowledge your message and offer what I can to assist you and your wife.

To my knowledge - I'm nether an Australian or an attorney -  stipulations and exclusions to what the insurance will cover is stated on the policy and you accept those restrictions when you take the policy.  So, you're dealing with the toxic combination of semantics and legalities.   

You didn't state whether you were insured solely by the government-run Medicare system or have 'private' health insurance.  I suspect you have the non-government coverage.  If so, you may want to contract the Private Health Insurance Ombudsman to register an appeal for coverage in your wife's case. 

I believe physicians consider an acoustic neuroma to be a 'brain tumor' although it is not, literally 'in' the brain.  Insurance companies like to play games with semantics with the purpose of avoiding paying legitimate claims but an appeal to a 'higher authority' can often render positive results.  That is my suggestion but other posters may have better ones to offer. 

I wish you and your wife a positive outcome to her AN diagnosis.

Jim

[arizonajack]

Whether the insurance company breached the contract is entirely subject to Australian contract law (either by statute or by case law).

Getting international opinions or perspective isn't likely to do you any good but an academic discussion might help you understand what you are up against.

I hope you have a lawyer because going up against insurance company lawyers without one of your own is like taking a rubber knife to a gunfight. You'll be the one who ends up on the ground bleeding.

I spent 35 years in the insurance industry and I am quite familiar with insurance contracts and contract law.

The phrase "in the brain" doesn't give me enough information about the coverage to render any kind of opinion except to tentatively agree that an acoustic neuroma is not, literally, "in the brain" if you apply the medical definition of "brain."

From Merriam Webster:

"The portion of the vertebrate central nervous system enclosed in the skull and continuous with the spinal cord through the foramen magnum that is composed of neurons and supporting and nutritive structures (as glia) and that integrates sensory information from inside and outside the body in controlling autonomic function (as heartbeat and respiration), in coordinating and directing correlated motor responses, and in the process of learning."

What you have to understand about insurance policies is that something is either covered or not covered and if a limitation is clear and unambiguous then a denial is not based on profit motive, it's base on the clear and unambiguous limitation.

Sorry to have to say this, but your emotional reaction (feeling violated and abused), while understandable, is irrelevant with respect to the contract and there is no moral or ethical dilemma here.

That being said, you (your lawyer) will have to rely on Australian law with regards to how contractual terms are construed.

For all I know, Australian courts may have already wrestled with the definition of "brain."

What, if anything, has your lawyer come up with so far?

[nftwoed]

Hi;
   Was wondering if applying word definitions to human anatomy, whether an anatomical dictionary would be more applicable? E.G. "Gray's Anatomy": https://www.google.com/search?q=gray's+anatomy+brain&tbm=isch&tbo=u&source=univ&sa=X&ei=DDrxUcHfM8jQyAHZ1YCABg&sqi=2&ved=0CDMQsAQ&biw=1024&bih=705#facrc=0%3Bbrain%20anatomy&imgdii=_&imgrc=_

   Tiny URL: http://tinyurl.com/nhf9vnq

[nftwoed]

Hi;
   I believe in the USA, inside the cranium and through the dura, is considered brain surgery. Somehow I don't feel an ins. co. legal team could reasonably challenge neurosurgeons in a court hearing re, AN resection and it's definition.

[mucha]

Thank you all for your feedback.

The emotional comment was not related to the case, just our personal feelings (sharing). I have deleted it so we can stick to the main issue.

By way of clarification and in response to some comments provided, I’d like to state:
a.   The issue is not so much what an acoustic neuroma is – that has been agreed by all parties concerned. The only issue is whether its “in the brain” and therefore clarification of that the “definition” of the brain is, is critical.

b.   This is part of life insurance and not medical insurance. We had no issues with our medical insurance or government cover. So it’s a private (global) company we are dealing with.

c.   The definition in our policy is identical to one I found in a much earlier post (2009) and for which he that person had no issues claiming. Refer: http://www.anausa.org/smf/index.php?topic=9797.0 My issue is the consistency of application of definitions.

d.   The brain stem is considered part of the brain and it would logically follow that its integral components are too i.e. the cranial nerves.

e.   My research has now extended to the realm of “brain death” definitions which start to go into this level of complexity.

f.   We have expert opinions from some of Australia’s top neurologists who have dismissed the insurance companies claims, and clarified that the cranial nerves are part of the brain.

g.   @ArizonaJack - The insurance companies own supporting clarification documents (which we have found legally) confirm that the brain stem is part of “the brain”. Yet they still fight on, so we are not sure what their angle is and will only find out in court. Hence my need to find anything we can – and with all due respect, not web-links but actual substance.

h.   We do need international perspective as part of our strategy which I cannot go into on a public forum.

i.   Our lawyers are pro-bono and therefore the resources at our disposal and indeed our own very limited funds can only stretch so far. Supreme court cases do not come cheap and yes we have skipped the Financial Ombudsman in order to get a binding “legal” decision.

j.   As such we have personally extensively trawled the internet, written to over 100 institutes and leading experts and received some positive feedback, but as you would expect some are hesitant to do so across international jurisdictions even though they fully support us.

Lastly, it’s funny how much you learn about the law and medicine when you get involved in cases such as these. I’ll leave you with an analogy from one of our neurologists “even though we are as right as we can be with the medical interpretations, the subjective legal ones and their contexts are not as clear cut”. Therein lies the problem…

[ppearl214]

Hi all,

There has, for years, been the on-going discussion if AN's are "brain" tumors or not.  They occur inside the skull and yet, they do not "penetrate" the brain, much like malignant tumors.  They are deemed "skull base" tumors so it really is based on how one interprets it.  Overall, it has been deemed a "brain" tumor and treatments and coverage should remain as such.  I, also, cannot speak to Australian law but send wishes to you that this will be resolved and quick.

Phyl

[arizonajack]

b.   This is part of life insurance and not medical insurance.

Huh?

What does life insurance have to do with an AN if the patient is still alive?

Tell me more about the policy.

[mucha]

@Arizonjack

The insurance is a life insurance policy ‘add on’ called Trauma Insurance also sometimes known as critical illness insurance. There are others such as income protection and TPD. You don't need to die to claim against it.

It is not specifically for AN – it covers a range of traumatic events, disablement etc of which benign brain tumour is one. We have paid our premiums for years for the cover and as our event falls within the definitions of this cover we are entitled to claim against it. Here’s a link that gives a bit more detail: http://www.lifebroker.com.au/life-insurance/types

[nftwoed]

Hi;
   Just thinking, an AN tumor in the CPA, deviating the brain stem and compressing a 4th ventricle is indeed invading the brain. Not sure how Aussie law looks at it, but I would think medical terminology would win over dictionary definition.
   Now, an AN middle cranial fossa may be a different story.

[mucha]

Just to give you an update, we had our mediation on Friday. They have ‘softened’ their position now but still maintain their stubbornness.

Having viewed our overwhelming medical expert evidence, they are now hesitant to argue on ‘medical grounds’ and are now pushing that the definition of brain in their policy is based on the ‘old English’ interpretation. Given that every other definition in their policy is quantified or referenced to American Medical Association (AMA) medical definitions, we find this argument hard to follow.

So they have increased their offer from less than 5% prior to mediation to 15% during mediation to 30% at the end. In their own words, they are increasing their offer because they consider it a risky case to be fighting. Unfortunately 30% breaks even for us and we end up with nothing.

For us what defies logic, is that they still maintain that they will not settle the full amount. So we will now proceed to trial – a calculated risk. Fingers crossed…

[Jim Scott]

Mucha ~

I wish you all success in fighting the insurance company for coverage.  Unfortunately, this kind of situation is what motivates many people to hold insurance companies in low repute, whether that is fair or not.  Both my wife and I worked for a time in the insurance business.  I was in sales (life, income protection and auto), she was a claims supervisor (home, auto).  We both worked for large American insurance companies and learned a lot in the process.  One thing she learned was that there is a lot of fraud in claims and this puts the company and the claimant in an adversarial position. 

Your battle over the definition of what constitutes a brain tumor is the kind of semantic nit-picking that lawyers love to argue and insurance companies can use to avoid a large claim payment.  It seems quite reasonable that an acoustic neuroma is a 'brain tumor' by virtue of the fact that it impacts the brain stem.  If an acoustic neuroma is allowed to grow unchecked, it can cause death by pushing on the brain stem.  I was in that situation (my neurosurgeon was amazed that I was 'still walking around') when my 4.5 cm AN was discovered.  Fortunately, my medical insurance paid for 95% of the costs ($100,000. US). 

I very much hope that you'll win this battle.  I only regret that I can not offer the kind of legal data you need but I'm not an attorney, didn't have this issue with my insurer and don't live in Australia so I'm afraid I can only offer sympathy, thoughts and prayers to you and your wife.  Please keep us updated.  Thanks.

Jim    

[arizonajack]

@Arizonjack

The insurance is a life insurance policy ‘add on’ called Trauma Insurance also sometimes known as critical illness insurance. There are others such as income protection and TPD. You don't need to die to claim against it.

It is not specifically for AN – it covers a range of traumatic events, disablement etc of which benign brain tumour is one. We have paid our premiums for years for the cover and as our event falls within the definitions of this cover we are entitled to claim against it. Here’s a link that gives a bit more detail: http://www.lifebroker.com.au/life-insurance/types

A website guide to policy features is useless to me.

I would have to read the terms and conditions of that actual policy that addresses and defines brain tumor before I can comment.

However, that the company has raised it's offer to 30% means that it's negotiating from a weak position and you are likely to get better offers as you get closer to trial, perhaps even while sitting on a bench outside the courtroom.

If you have not actually filed a lawsuit yet I suggest you seek the services of an attorney who is experienced in suing insurance companies for bad faith and winning. Not just somebody who says he can do it but somebody who can demonstrate that he has done it and has won punitive damages. Those are the types of attorneys that scare the pants off insurance company executives.

[paulbds]

Morning
I had an AN diagnosed in Dec 2012 and am currently on watch and wait with review MRI next month.
I have been paying critical illness insurance sine 1997 and forgot all about the policy until the annual reminder arrived (inflationary rise) in April
I am 58 and the policy was due to run out at age 60
i submitted a claim and following a delay ( consultant mislaid the letter and report from my 2nd consultant required)
I must confess to checking and rechecking the definition of brain tumor and expected claim to be rejected
I found out yesterday that they have accepted my claim with payment due next week
It is a reputable UK insurance company(Wesleyan)  I used and apart from the delay (claim submitted May)
The policy states benign brain tumor - but did not specify AN - the two doctors at the insurance company accepted the claim

[Jim Scott]

Paul ~

Congratulations and thanks for sharing your experience with a UK-based medical insurance company.  I hope this may be of some help to 'Mucha' as he and his wife battle their insurer for payment of their claim to cover the AN surgical procedure.

Jim