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Kissil v. Beneficial National Life Insurance Co.

Decided: May 9, 1974.


For reversal -- Chief Justice Hughes and Justices Jacobs, Sullivan and Pashman. For affirmance -- Justices Clifford and Mountain. The opinion of the Court was delivered by Sullivan, J. Clifford, J. (dissenting). Mountain, J., joins in this dissenting opinion.


Plaintiff, the holder of, and named beneficiary in, a Major Medical Expense Policy issued by defendant, filed suit seeking reimbursement for medical expenses incurred on behalf of his son Matthew, a child born while the policy was in force. Involved were the medical costs of treating Matthew for a condition of cystic fibrosis.

Defendant denied liability. It admitted that its policy insured plaintiff and the covered members of his family against loss resulting from sickness which was defined in the policy as "sickness or disease contracted and commencing after the effective date of this Policy as to the person whose sickness is the basis of claim." It also admitted that under the terms

of the policy a child born to the named insured automatically became a "Covered Member," but only "upon attaining the age of fifteen days." Its contention was that Matthew's cystic fibrosis had been contracted and had commenced at birth or within a few days thereafter, which was prior to the effective date of the policy as to him.

At trial, defendant moved to dismiss plaintiff's case on the ground that coverage did not exist as a matter of law. However, the trial court ruled that a factual issue existed as to when the cystic fibrosis had commenced. The case was submitted to the jury which returned a verdict for plaintiff. Judgment was entered in favor of plaintiff for $3,241.91, the amount of medical expenses to date, with the further provision that plaintiff would be entitled to payment of future medical expenses incurred by reason of Matthew's condition of cystic fibrosis up to the maximum policy limit of $12,500.

On appeal the Appellate Division reversed in an unreported opinion, holding that no factual issue was involved since, on the proofs, reasonable minds could not differ as to the disease having commenced and become manifest within the first fifteen days of the infant's life. It held that defendant's motion to dismiss should have been granted. This Court granted certification. 64 N.J. 313 (1973).

Cystic fibrosis is an inherited disease present at birth, although indications of it may not appear immediately. The disease cannot be cured. The only treatment for it is supportive. Its symptoms include lung insufficiency, instability of the pancreatic glands and thick mucous secretions which tend to block various organs of the body.

In the instant case, Matthew was born on June 1, 1969 with a mucous blockage of his intestinal tract which required immediate surgery. His condition was diagnosed as meconium ileus. The condition results from enzyme, mucous gland and pancreatic malfunctions. All of the experts agreed that some degree of correlation exists between meconium ileus and cystic fibrosis. There was testimony

that 10% of all cystic children are born with meconium ileus. Conversely, most, if not all, meconium ileus children develop cystic fibrosis. Defendant's medical expert, Dr. Marano, said that meconium ileus is conclusively pathognomonic (indicative or characteristic) of cystic fibrosis. However, plaintiff's expert, Dr. Schiffman, testified that not all infants born with a condition of meconium ileus become cystic.

In the present case there was an immediate diagnosis of meconium ileus, and surgery had to be performed to relieve the condition. There was also a strong suspicion that the baby had cystic fibrosis and a presumptive diagnosis thereof was made. Enzyme treatment for this condition was attempted but was discontinued after a few days because of an adverse reaction. On June 27 a sweat test was administered to confirm the presumptive diagnosis of cystic fibrosis, but results were inconclusive since the child did not sweat enough.*fn1 He was discharged from the hospital on July 1, 1969 with a diagnosis of "cystic fibrosis -- meconium ileus -- pneumonia."

In August 1969, Matthew was brought to the Cystic Fibrosis Clinic at Hackensack Hospital and on August 22 another sweat test was administered, this time with positive results. All of the experts agreed that the ...

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