Cancer colon liver metasteses

Health care: Applicability of arbitration clause

Finding a "patent ambiguity" in an arbitration clause in an employer's group health insurance policy, the Supreme Court of Ohio held that the claims of an insured cancer patient against the insurer for denial of coverage, and her husband's claim for loss of consortium, were not required to be arbitrated.

In this case, an insured sought coverage from CIGNA for cryoblative surgery to combat colon cancer, which had metasticized to her liver. CIGNA took the position that the surgery was experimental and investigational and therefore not covered. The insured went through CIGNA's grievance procedure, during which time her liver tumors doubled in size. Although CIGNA's experts stated that cryosurgery was an accepted technique for destroying liver metasteses, and that it conformed to acceptable medical standards, they did not approve the procedure for the insured and CIGNA denied her claim.

The insured and her husband filed suit, alleging breach of contract and other claims, including negligence, intentional infliction of emotional distress, bad faith, and loss of consortium. CIGNA moved to stay the suit pending arbitration based on the arbitration clause in the contract with the insured's employer. It stated that "[a]ny controversy between GROUP, a Subscriber or Dependent...arising out of or in connection with this Agreement shall, upon written notice by one party to another, be submitted to arbitration." While the motion was pending, the insured died. Subsequently the trial court granted CIGNA's motion to stay the suit. The court of appeals, however, reversed but only as to the husband's loss of consortium claim.

On further appeal, the Ohio Supreme Court reversed the portion of the order staying the action as to the various claims by the insured. It found that the arbitration clause was at best ambiguous, at worst unintelligible.

Since the "preposition" "between" was lacking a second object, it was not possible to determine what parties were to be in contention. Construing the arbitration clause strictly against CIGNA and in favor of the insured, the court concluded that it could not bind the insured to arbitration. The court also noted that neither the insured nor her husband signed anything binding her to the arbitration clause. The court declined to determine whether the insurer violated public policy in taking two months to decide whether the insured could have potentially lifesaving surgery.

Branham v. CIGNA Healthcare of Ohio, Inc., 692 N.E.2d 137 (Ohio 1998).