Morris v. Continental Cas. Co.

• Full Citation: Morris v. Continental Cas. Co., 423 S.W.2d 42 (Mo. App. 1967)
• Decision Date: 02 October 1967
• Citation: 423 S.W.2d 42
• Docket Number: No. 24625,24625
• Parties: Thomas A. MORRIS, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 42

423 S.W.2d 42

Thomas A. MORRIS, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.

No. 24625.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 4, 1967.

Application for Transfer Denied Feb. 12, 1968.

R. Lawrence Ward, Shughart, Thompson & Kilroy, Kansas City, for appellant.

Samuel J. Molby, Clayton R. Smalley, Kansas City, of Counsel, Watson, Ess, Marshall & Enggas, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a suit to recover medical and hospital expenses under a group major medical insurance policy issued by the appellant company. Respondent obtained a judgment below and the company duly appealed to this court. We shall refer to the parties as they appeared below.

Plaintiff was employed as a claims attorney by Bruce Dodson and Company in Kansas City, Missouri. As such employee he elected to become insured as to himself, his wife and family for medical, hospital and surgical expenses under the group policy issued by the defendant to Bruce Dodson and Company and covering its employees. This policy and the rider on which defendant relies, were both effective as to plaintiff and his wife on June 1, 1960. Plaintiff's wife had long been a diabetic and plaintiff so stated on his application for insurance. By a rider to the policy the coverage was limited as follows:

'1. Subject to the limitation in Paragraph 2 hereof, 'sickness' wherever used in the policy means sickness or disease causing loss commencing after the effective date of coverage of the insured employee or insured dependent whose sickness is the basis of claim and resulting in loss covered by the policy.

'2. Expenses incurred after the effective date of this rider as the result of sickness for which medical treatment was received or recommended by a legally qualified physician or surgeon prior to the effective date of insurance as to the insured employee or insured dependent will be covered only if a period of 24 months ending after the effective date of coverage as to the insured employee or insured dependent has elapsed, and during which period there has been no medical treatment rendered or recommended for such sickness.'

Defendant originally denied plaintiff's claim on the ground that the expenses resulted from the diabetic condition of plaintiff's wife; that she had diabetes long before the effective date of the policy and had received continuous treatment therefor, and that the claim was specifically excluded by the above quoted portion of the rider.

Plaintiff brought this suit on the basis that his wife contracted glomerulosclerosis after the effective date of the policy and that she had not received treatment therefor until January of 1962. Plaintiff's wife had been a diabetic since 1945 and was under the continuous care of various doctors for that condition, and took daily injections of insulin. In December of 1959 she was hospitalized in St. Luke's Hospital in Kansas City, Missouri, for the treatment of a persistent infection in her right thigh and other complaints. The final diagnosis listed in the discharge summary in the hospital records for this period of hospitalization was cellulitis right thigh; diabetes mellitus; Kimmelstiel-Wilson's syndrome; fungus infection of the fingernails with a secondary paronychia. The medical witnesses agree that 'Kimmelstiel-Wilson's syndrome' and 'glomerulosclerosis' are synonymous and mean the same thing. The doctors who treated Mrs. Morris during this December 1959 hospitalization did not appear as witnesses at the trial. The record does not explain why they were not called as witnesses. In August, 1961, Mrs. Morris first went to Dr. Kettner, who testified for plaintiff. During all this time Mrs. Morris had been an active housewife, leading a relatively normal life caring for three children and performing all her household duties. After Christmas in 1961, or early in January of 1962, there was a pronounced change for the worse in her condition, and she was hospitalized in St. Mary's Hospital, in Kansas City, Missouri, on January 26, 1962. At this time, Dr. Kettner for the first time definitely diagnosed her condition as glomerulosclerosis. She was discharged from St. Mary's February 7, 1962 'even though it is felt that her prognosis is very poor and that she will undoubtedly have to be rehospitalized. However, it is felt that she should be permitted to spend some time at home at this stage'. The doctor advised Mr. Morris of the seriousness of her condition.

Mrs. Morris's older brother was a doctor in New York City, and when he was advised of the situation he insisted that she come to New York and consult with the doctors there. She did so and first entered New York Eye and Ear Infirmary. She was then transferred to Doctors Hospital in New York City, on March 17, 1962, where she died on April 7, 1962. Plaintiff's claim is for hospital and doctor bills incurred from the time of her hospitalization in St. Mary's Hospital, in Kansas City, Missouri, on January 26, 1962, until her death on April 7, 1962.

On this appeal defendant alleges error in the failure of the trial court to sustain its motion to set aside the verdict and judgment for plaintiff and enter judgment for defendant in accordance with its motion for directed verdict. Defendant's contention is well summarized by a paragraph from its brief which reads as follows: 'The transcript of the trial of this case will reflect that the only evidence in this case was to the effect that Lorraine Morris was afflicted with and suffering from the disease of glomerulosclerosis prior to June 1, 1960. That she continued to receive treatment for glomerulosclerosis subsequent to June 1, 1960, and prior to her death, and that no twenty-four month period elapsed subsequent to June 1, 1960, during which time she was not undergoing treatment for the disease of glomerulosclerosis.'

As heretofore indicated the doctors who treated Mrs. Morris during her December 1959 hospitalization in St. Luke's Hospital did not testify. Dr. Kettner was plaintiff's only medical witness and Dr. Charles B. Wheeler, Jr., then coroner of Jackson County, a pathologist, was defendant's only medical witness. Dr. Wheeler had not examined or treated Mrs. Morris.

Glomerulosclerosis was described as 'a condition in which there are deposits of a peculiar material in certain parts of the kidneys, which lead to generalized deterioration of kidney function, among other things'. The evidence indicates that this condition caused the very small blood vessels in the kidneys and in the eyes and in other places of the body to deteriorate and fail to function properly. The result is kidney failure, which in Mrs. Morris's case caused uremia, nephrosclerosis and death. Not all diabetics develop glomerulosclerosis. The percentage was set by the witnesses at 20% to 25%. It may be that persons who are not diabetics can develop glomerulosclerosis, but the evidence as to this is not satisfactorily clear.

Both Drs. Kettner and Wheeler examined the hospital records from St. Luke's Hospital for Mrs. Morris's stay in 1959. Dr. Kettner testified that he would not base a diagnosis of glomerulosclerosis on the findings contained in the record. However, he specifically refused to state that she did not have glomerulosclerosis at that time. He stated that he would not quarrel with the diagnosis of the doctors who treated her. Dr. Wheeler from his examination of these records gave his opinion that Mrs. Morris did have glomerulosclerosis at the time of her hospitalization at St. Luke's in December of 1959.

From the testimony of these two doctors it appears that glomerulosclerosis is what is described as an 'irreversible' disease. There is no cure for the disease, and the only thing that can be done is to try to control the patient's diabetes, so as to keep the condition of glomerulosclerosis from getting progressively worse. Dr. Kettner testified: 'Q. What sort of treatment is there for this glomerulosclerosis? A. Well, essentially, there really is none, because once they have it, it's what we call an irreversible illness. In other words, you can't do anything that will cure it; all you can do is to try to prevent it from getting worse'. Although Dr. Wheeler used different words to describe the situation, his testimony was to the effect that there was no cure for glomerulosclerosis and that the only thing that could be done was to control the diabetes. Both doctors testified that the hospital records from December, 1959, at St. Luke's showed no treatment for glomerulosclerosis, as such, but only treatment for the diabetes and the infection. During this hospital stay her insulin dosage was increased. Dr. Kettner testified that when Mrs. Morris became his patient in August of 1961, he did not at that time diagnose her condition as glomerulosclerosis, although he stated that with her, as with any other long term diabetic, there was always a strong suspicion of glomerulosclerosis. In the early stages of this disease it is very difficult to diagnose the only certain way is laboratory examination of tissue from the kidney and this is seldom done, and was not done in Mrs. Morris's case. He stated that he treated her for the diabetes and not for the glomerulosclerosis. This treatment consisted of strict diet and insulin.

Dr. Kettner did not diagnose Mrs. Morris's condition as glomerulosclerosis until her hospitalization in January of 1962, and he did not treat her for such condition until that time. He, as well as Mr. Morris, testified that there was a profound change in Mrs. Morris's condition early in January, just prior to this hospitalization.

Defendant contends that it was entitled to a directed verdict under the provisions of the rider on the policy excluding coverage of expenses resulting from any disease existing, and for which treatment was received or recommended, prior to the effective date of the...