PI Brief Update

Does the insurance policy cover COVID-19? - Dr Mark Burgin

27/11/20. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses the role of the medical expert in interpreting insurance policies and whether a primer would be useful.

COVID-19 has led to hundreds of thousands of claims on health, life and non-life policies. Each claim depends upon the exclusion criteria but raises medical questions. What is a communicable disease and what is an epidemic? What class of disease is COVID-19? There are thousands of court cases and medical expert reports considering these questions.

Medical experts might be expected to be pleased for the extra work but there is some unease. As the same arguments are made in each report - would a primer be better value? A primer could provide the tools needed to resolve a case before litigation. It is unclear why the insurance industry has not taken this route. Insurers appear to prefer their customers to face a series of barriers where the insurance company has the power.

Insurers have caused much concern amongst GPs when they state the claimant ‘has forgotten’ to mention some minor problem many years previously. The previous problem is then used by the company to avoid paying out even when there is no association to the claim. GPs can find themselves in the middle trying to fight the insurance company by advocating for their patient. Commonly this leads the GP being in breach of their professional obligations.

GMC Good Medical Practice 2013 paragraph 71 - You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a You must take reasonable steps to check the information is correct. b You must not deliberately leave out relevant information.

Approaches to interpretation of insurance policies

The strict approach to interpretation of policies is favoured by those who demand equality of power. The insurers write the policy so they should explicitly exclude the situation e.g. ‘SARS like illness’ or pay up. Medical experts would still be involved in determining whether the condition is of the class excluded. There is some dispute amongst medics about whether COVID-19 is a respiratory virus or a multisystem disorder for instance.

COVID-19 causes a variety of patterns - a minor flu-like illness, gastrointestinal upset, severe respiratory injury, renal failure and cardiomyopathy. Even mild acute illness can be followed by Long-Covid which includes a chronic fatigue pattern thought to be due to brain inflammation. COVID-19 could reasonably be called a respiratory illness but also has the pattern of a multi-system disease.

Notifiable diseases can change so COVID-19 was listed as a notifiable disease 6.15pm on 5 March 2020. Insurance policies signed before that time would be expected to cover COVID-19. The insurers would argue that it is the time when the claimant became ill that matters. This retroactive interpretation of the policy is not a matter for a medical expert.

Force Majeure would appear to apply as COVID-19 is an extraordinary event or circumstance beyond the control of the parties. Medical experts may argue that the political reaction to the disease is extraordinary but outbreaks of infectious diseases are not. Respiratory viruses are generally only lethal in those with underlying conditions. The COVID-19 outbreak has led to lower rates of other respiratory viruses such as flu and the common cold.

Possible defences

Bioterrorism has been blamed for the unusual set of features in COVID-19. Although independent scientists have studied the COVID-19 genome for signs it was made in a lab, no evidence has found. Doubts remain as it is possible to create a new virus by infecting an animal with two strains. As this method occurs naturally there would not be any difference in the genome. Many insurance policies exclude acts of terrorism, so it is only a matter of time before this is raised as an issue.

Novel diseases such as HIV, Zika or outbreaks of previously known diseases such as Ebola, H1N1 influenza have the potential to overwhelm the insurance industry. Had a disease like Zika led to claims for brain injury there would be have been a risk that the insurance industry would collapse. There is a public policy argument that the government should manage this type of risk. It does not make sense to deprive the majority of insured people of their insurance.

COVID-19 is a coronavirus, some coronaviruses (HCoV-NL63, HCoV-229E, HCoV-OC43, HKU1) are found in the UK. The potential of COVID-19 to cause a more severe illness has been known since 2013 when SARS and then MERS (two other coronaviruses) caused outbreaks. Insurers cannot argue that COVID-19 was unexpected when there were warnings. If they have failed to make reasonable changes to their policies, then the person taking out the insurance should be able to rely upon their policy.

COVID-19 has largely caused losses as a result of the requirement to follow the government advice to close down businesses for lockdown. The role of the medical expert in these cases is to consider a list of diseases and determine whether COVID-19 is part of this list or not. This task has uncertainty, the expert must determine what categories the list indicates. Then determine whether COVID-19 is part of any of those categories. There is always a range of opinion as few diseases fit easily into any one category.

What are the major issues?

There can be more than one mechanism of transmission for one disease. COVID-19 is generally considered to be a respiratory disease and transmitted by coughing and sneezing. COVID-19 can also be transmitted by touching. The virus is then swallowed in a similar way to gastroenteritis. As it is easier to detect COVID-19 RNA from stool than from sputum it might be that touch is the primary mechanism. Early studies on COVID-19 showed that transmission in food occurs meaning that some events could be plausibly argued as food poisoning.

Classification of illness is pragmatic rather than based on fixed criteria so that malaria and septicaemia both present like a flu-like illness. Neither could reasonably described as part the family of influenza. Other corona viruses have different clinical symptoms from COVID-19 whilst being closely related. Illnesses grouped by legal systems such as notification have little in common apart from danger to the public health. Where the lawyer drafting the policy has used a model inappropriately the result can be entirely illogical.

Medical experts can generally find a relationship between any two events. Often there are multiple connections that range from likely through plausible to theoretical. The correct approach is to provide a range of opinion such as some experts would consider COVID-19 as a type of influenza because both involve muscle aches and respiratory infection and have single-stranded RNA. Other experts would consider the two as separate because they have different structures under electron microscope, have a different genetic structures and COVID-19 causes damage to a wider range of tissues. My opinion would be that there are some aspects which overlap such as causing death and others than do not such as influenza is not a notifiable illness.

Conclusions

As long as there are no centrally held lists to define illness categories there will continue to be work for medical experts. A strict approach to resolving these cases would not help the industry or the claimants because policies are usually written poorly and claimants rarely disclose their whole past medical history. GPs cannot be universally relied upon to take a neutral view or follow GMC guidance. Insurance companies cannot be relied upon to obtain high quality independent evidence when making their decisions.

Placing the burden upon the claimant to prove the reasonableness of the claim is disproportionate and does not recognise them as the victim. They may not have the financial resources to fight for their legal rights and medical experts are not cheap. Having a primer would allow claimants to contest their claims without having to obtain a separate medical expert report. Agreed legal classifications have the advantage of reducing the need for medical opinion.

Clarity is more important than medical accuracy when resolving legal claims and a list provides a definitive answer. In the age of the internet and disruptive technology it makes little sense for each insurance company to re-invent a classification. Creating a definition for ‘flu-like illness’ can ensure that all legal documents mean the same thing. It remains open for insurance companies to use long lists to exclude particular diseases with the assumption that if they do not mention a name it is not excluded.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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