Non-Disclosure: Medical history not disclosed in Proposal Form Case 1
The assured was diagnosed of ‘Left Breast Infiltrating ductal carcinoma’ on 10 June 2016. Her claim under the critical illness benefit was repudiated on the ground of non-disclosure of history of Ultrasound of abdomen and pelvis and Bilateral mammogram which was not disclosed in the proposal form dated 19 October 2015.
The insurer’s decision was based on the medical report wherein it was reported that:-
- the assured had undergone an ultrasound of abdomen and pelvis on 29 August 2013, which revealed presence of liver cysts and uterine fibroids;
- the assured was informed of the test result on 2 September 2013;
- the assured had undergone a mammogram on 29 August 2013; and
- the assured’s mammogram report showed a few small cyst.
Investigation and Findings
The issue to determine was whether the assured has fulfilled her duty to disclose all information to the insurer in the proposal form dated 19 October 2015 and whether there was a non-disclosure of material fact.
The relevant questions in the proposal form :-
“6. Have you ever had, been diagnosed to have, been investigated or treated for or advised to seek any medical treatment or surgical treatment for any of the conditions listed below:-
(g) Jaundice, Hepatitis B or C, gall bladder or biliary system stone or obstruction, pancreatitis or other disease of disorder of the liver, gall bladder, biliary system or pancreas?
(i) Cancer, tumour, cyst, lump, growth, lymphoma, leukaemia, melanoma, Hodgkin’s disease. Bone marrow disorders, any malignant or pre-malignant condition?
9. In the past 5 years, have you ever had or had been advised or intend to undergo any investigation or screening test but not limited to blood test or urine test, pap smear, mammogram, ultrasound, biopsy, X-ray, CT scan, MIR, ECG, treadmill ECG, echocardiogram, lung function test, bone density test, angiogram, scope, EEG, sleep study?
10. FOR FEMALE ONLY
(c) Have you ever been or currently being informed, investigated, treated or advised to seek any medical or surgical treatment for breast lumps, fibroids, ovarian cysts, polycystic ovarian syndrome, endometriosis, cervicitis, abnormal papsmear(s), or any other disease or disorder of the breast or female organs?
11. Are there any other circumstances not already disclosed elsewhere in this proposal form that would render an assurance on your life more hazardous? If you are in doubt on whether certain circumstances are more hazardous, these circumstances should be disclosed.”
The Case Manager was of the view that based on the above questions, it is clear that the assured need to disclose the following information:-
i) ultrasound of abdomen and pelvis on 29 August 2013; and
ii) mammogram on 29 August 2013
It is important to note that had the material fact, i.e. history of ultrasound and mammogram, been disclosed it would have influenced the Insurer in determining whether to accept the risk, on what condition and at what premium.
The Case Manager was of the view that it is an irrefutable fact that the assured has the knowledge of history of ultrasound and mammogram, when she completed the Proposal Forms. Despite having a specific question which requires her to disclose this information, she had failed to provide such information.
The assured contended that, “Ultrasound of abdomen and pelvis and mammogram were done on 29 Aug 2013 as part of the company's routine check-up offered by my company…. In the past 5 years, though I have gone for screening test in Aug2013, this was just a routine medical checkup provided by my employer. I answered 'No' as I thought the question relates to PERSONAL medical checkup done by myself for a special medical condition which was none.”
On this issue, the Case Manager stressed that Question 9 requires disclosure of ‘any investigation or screening test but not limited to blood test or urine test, pap smear, mammogram, ultrasound’. The Case Manager was of the view that the question requires a proposer to disclose any type of investigation or screening test which includes ultrasound and mammogram.
Reference was also made to the case of Goh Chooi Leong v. Public Life Assurance Co. Ltd. (1964) MLJ 5, Gill J. said: “It is a trite law that a contract of insurance is a contract ‘uberrimae fidei’ which can be avoided for non-disclosure of material facts.”
Thus, the Case Manager was of the view that the assured had failed to fulfill her duty to disclose all information to the insurer in the said form.
Based on the above reasons, the Case Manager found that there was a non-disclosure of material facts in the proposal form by the assured. Under the circumstances, the Case Manager recommended that the decision of the Insurer to repudiate the claim be affirmed.
The assured decided not to refer her dispute to the Ombudsman for adjudication although she was given 30 days to do so.