It's Monty here!!  Thanks for trying to help me to remain anonymous but at this point, I have nothing to hide and the jury will decide this issue at some point, soon I hope.

I do want to thank you for giving me a different perspective on my situation.  I appologize if I was abrupt before, but if you read my linked Complaint at the end of this post, I am sure you will understand why.

Here are a few more things to consider.

The fact that I started the enrollment process in November and finished in January proves that I was not in a hurry to get coverage because I needed to defraud an insurer.  Also, the only reason I had that scan on January 13 was because no one else would book that day because it was Friday the 13th.  It was either that day or wait 2 months for the next available date.  Since I had been trying to get my dad to have the scan for 6 months, I figured the quicker the better.  If I would have been superstitious, I would have saved myself a lot of grief it seems.

When I had the scan on the 13th, I had no symptoms and it was not done for any medical reason whatsoever.  I did not have the results of this scan on the 18th and did not schedule a follow up consultation to go over the results.

When I was told by phone on February 3 that I had a tumor, I did not hide the results of this scan from my doctors.  As a matter of fact, when I met with my PCP I gave him both a paper copy of the report as well as a CD that contained a 3-D holographic fly through video of the entire scan.

When I was referred to the Urologist, I also provided him with both a written report and the CD images as well.  The doctor who gave me the second opinion was also given the written report and the CD.  When I met with the Oncologist, he was also made aware of the scan that found the tumor, so there was no intent here to decieve which California Law requires.

Every doctor I had seen within the plan had a written report and CD images of my scan and all of them knew that my coverage started on February 1, 2006 as each had to verify coverage for a new patient. 

Even with the written report and CD images, the Urologist and my PCP ordered an additional MRI to confirm diagnosis as well.

I think that if you knew the entire hell I have gone through, maybe you might think different.  My lawsuit was filed yesterday against UnitedHealth and Pacificare.  The complaint explains the situation and provides more detail on my entire saga with this HMO.

You can read it here.

SBD 

1389.3.  No health care service plan shall engage in the practice of postclaims underwriting.  For purposes of this section, "postclaims underwriting" means the rescinding, canceling, or limiting of a plan contract due to the plan's failure to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application before issuing the plan contract.  This section shall not limit a plan's remedies upon a showing of willful misrepresentation.

If an applicant for insurance has no present knowledge of the facts sought, or fails to appreciate the significance of information related to him, his incorrect or incomplete responses will not constitute grounds for rescission. Moreover, questions concerning illness or disease do not relate to minor indispositions, but are to be construed as referring to serious ailments which undermine the general health. 

JEFFERSON STANDARD LIFE INSURANCE COMPANY, Plaintiff and Appellant, v. RAY DRAPER ANDERSON, Defendant and Respondent

Civ. No. 7612

Court of Appeal of California, Fourth Appellate District

The partner made the application for insurance on the life of his business partner, the insured. The insurance company sought recission of the policy following the insured's death on the ground of false misrepresentation. The trial court entered judgment in favor of the partner. On appeal, the court held that even assuming that the insured was suffering from an ailment or disease at the time he answered the questions in the application, he had no knowledge thereof and that it was not a ground for the insurance company's avoidance of the policy. The court held that the evidence adequately supported the trial court's finding that the insured's failure to list the examination given him at a clinic used for business publicity purposes was not a cause for his consulting a doctor and did not constitute a false representation. The court held that the insured's negative answer to the question whether he had been a patient in a hospital was not false and affirmed the judgment from the trial court.

Among other things, the trial court found: "That it is not true the decedent Coltrain made any false representation as to his physical condition which would affect his insurability and concerning which any question was asked in the application for insurance."

The foregoing finding disposes of plaintiff's contention based on the allegation in its complaint that Coltrain falsely represented that he never had suffered from or been suspected of having any ailment or disease of the heart or chest. Even assuming Coltrain was suffering from such an ailment or disease at the time he answered the questions in the application he had no knowledge thereof. Where an applicant for insurance is asked whether he has suffered from or been suspected of having a specific ailment, his answer in the negative, although contrary to the fact, if the result of ignorance and made in good faith is not a ground for avoidance of the policy. ( Cohen v. Penn Mut. Life Ins. Co., 48 Cal.2d 720, 726 [312 P.2d 241]; Telford v. New York Life Ins. Co., 9 Cal.2d 103, 106 [69 P.2d 835]; Travelers Ins. Co. v. Byers, 123 Cal.App. 473, 481 [11 P.2d 444].)

Likewise, by this inquiry Coltrain was not asked to disclose that he had been examined by a doctor at Scripps Clinic. He did not seek the examination to ascertain the cause of any "Ailment, Disease or Injury" and, thus, did not "consult a doctor" in the clinic for this purpose. The evidence adequately supports the court's finding that Coltrain's failure to list the examination given him at Scripps Clinic was not a "cause" for his consulting a doctor and did not constitute a false representation.

METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff and Appellant, v. JOSEPHINE DEVORE, Individually and as Administratrix, etc., Defendant and Respondent. JOSEPHINE DEVORE, Plaintiff and Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant and Appellant. (Consolidated Cases)

L. A. No. 27982

Supreme Court of California

Prior to his death, the insured signed an amended insurance application about one month after the initial application, which amendment provided that the insured "confirmed the statements therein made as of the date hereof." The insurer contended that the statement referred to the date of the amendment, and not the date of the initial application, thus making the insured's answers fraudulent. The court held that the date provision was ambiguous, and in view of the rule that ambiguities must be interpreted against the insurer, the insured could have reasonably understood that he was confirming the answers in his original application. The court held that the rule that a representation was presumed to be made at the completion of the insurance contract, was a rebuttable presumption. The court found that the presumption was properly rebutted by findings that the representations were referable to an earlier time. The court held that the insurer could not rely on the "good health" provision of its conditional insurability because the insured reasonably believed he was in good health at the effective date of the policy and his doctor had not informed him of his new illness.

(Huey P. Savage v. Louisiana Health Service & Indemnity Co. d/b/a/ Blue Cross/Blue Shield of Louisiana, No. 33,853-CA, La. App., 2nd Cir.).

The Fifth District Court for the Parish of West Carroll, La., found that BCBS had not attached Savage's policy application to his policy and said that the application therefore was not admissible to prove a material misrepresentation. The trial court also found no pre-existing condition and that the health insurer was therefore liable for treatment expenses. Finally, the trial court awarded attorney fees for both actions.

SBD

Where do you get off by saying that I deliberately "omitted a salient fact" when I answered the questions on January 10.  That application needed to be resubmitted due to it being a 2005 app rather than a 2006 app and for no other reason.  The scan on January 13 was not for an "ailment, disease, etc.".

Just because you can't admit you are wrong does not give you the right to say that I deliberately omitted a salient fact.  You are not in a position to play judge over my honesty or integrity and are quite frankly rude and lacking factual basis in your belief.  Your behavior of attacking someone on your blog is probably the reason no one actually posts comments on this blog.

I just gave you court decisions that prove you are wrong and instead of acknowleding them, you respond by calling me a liar.  Good job, I hope the Medical Blog Network doesn't condone your behavior.

SBD

It's really quite simple: According to the facts he posted, SBD (an unfortunate moniker, BTW) underwent a medical procedure (body scan) on January 13th. On January 18th, he submitted an application for health insurance, but neglected to disclose this. The insurance company relied on the application when it agreed to issue coverage.

Why he underwent the scan may have been relevant at the time of application; we'll never know. As it stands, when he submitted the application on the 18th, he misrepresented his health history. Case closed.

You'll notice that I make no reference above to the initial app (on the 10th); this is because that one is irrelevant. That is, the company only saw the app dated 1/18, and thus it became the one on which approval was based. Everything else is just static.

When one completes and submits an application for insurance, one warrants that the information is accurate to the best of one's knowledge. No one is disputing whether or not SBD knew of his tragic condition, but it is obvious that he deliberately withheld the fact that he'd recently had a procedure (having undergone it less than a week before).

Seems pretty clear cut to me.