Skroopka v. Royal Indemnity Co.

THE COURT.

Action upon an insurance policy insuring against loss resulting from accidental bodily injury and sickness, wherein plaintiff recovered judgment, from which defendant appeals.

The policy sued upon became effective September 19, 1952, and insures plaintiff and his wife “against loss resulting from ... sickness which is contracted while this Policy is in force but after this Policy has been maintained in force for not less than (30) days.” It further provides that “If such injury or sickness shall require treatment... by a legally qualified physician or surgeon, the Company will pay to the Insured” the expense incurred for hospital and medical charges, and fees of physician and surgeon in the treatment of such injury or sickness within the limits therein specified.

The loss here sought to be recovered is the expense incurred in the medical and surgical treatment of plaintiff’s wife, and the sole question presented, is whether such treatment was for sickness which was contracted after 30 days from the effective date of the policy.

The evidence is to the effect that Mrs. Skroopka, who at the time of trial was 47 years of age, had suffered from pain in her breasts before menstrual periods since she was 20 years of age, since which time she was also aware of the fact that she had nodules or lumps in her breasts, which just before the menstrual period would swell and become painful. In November, 1951, she underwent a hysterectomy, following which she experienced little, if any, pain in her breasts, but at times felt some tenderness during the period of the normal menstrual

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cycle. From time to time she consulted physicians, in the course of which her breasts were examined, but at no time was it suggested or was she advised that any medical care or treatment was required for her breasts. In May, 1952, she consulted Dr. Sperling, a surgeon. In the course of his examination Dr. Sperling examined her breasts and recorded that they “seem cystic and have palpable marble-like masses which are very firm in both outer quadrants. ’ ’ The doctor noted that at that time it was his impression that this was “probably Sehimmelbusch’s disease, which means chronic cystic mastitis. ’ ’ The doctor further stated that he did not then feel that this condition required any medical care, treatment or surgery. The doctor further stated that the condition of the breasts was not uncommon—“many women have that.”

Mrs. Skroopka again visited Dr. Sperling on September 2, 1952, who made an examination of her breasts which involved ‘ ‘multiple cystic areas with two rather firm areas in the outer upper quadrant of the right breast and a similar area in the left.” He then noted on his records, “to watch these areas very carefully for question of excision,” although he did not mention this to the patient. The doctor stated that he was concerned about the condition of the breasts because a week earlier he had operated upon Mrs. Skroopka’s sister for cancer of the breast and of the incidence of cancer in members of the same family. He did not, however, recommend any medical or surgical treatment of the breasts at that time. Dr. Sperling again examined Mrs. Skroopka on November 10, 1952, when he noted that the examination was the same as before, cystic areas of both breasts with some tenderness in the right and some increase in size, no real alarm, and no treatment recommended.