Your current location >> Cases
Laparoscopic Sleeve Gastrectomy = Cosmetic Plastic Surgery? Does the Medical Insurance Cover It?
[2022-10-17]

   

Laparoscopic Sleeve Gastrectomy = Cosmetic Plastic Surgery? Does the Medical Insurance Cover It? Court: Indemnity Shall be Made for Pathological Resection According to the Principle of Proximate Cause

 

Miss Tian had a laparoscopic sleeve gastrectomy in a Grade-A tertiary hospital for metabolic syndrome. After surgery, she filed a claim with the insurance company for medical expenses, but was refused on the ground that the surgery was a cosmetic plastic surgery that fell within the scope of deductibles agreed in the insurance contract. Then, Miss Tian sued to the court.

[Case Review]   

Miss Tian’s family bought a medical insurance for her online. During the insurance period, Miss Tian’s weight increased progressively in a short period. After diagnosis, she suffered from metabolic syndrome and thus had a laparoscopic vertical (sleeve) gastrectomy according to the doctor’s advice, which costed more than 30,000 yuan. Then, Miss Tian claimed indemnity from the insurance company.

However, the insurance company held that the surgery was a cosmetic plastic surgery that fell within the scope of deductibles agreed in the insurance contract, that is, no indemnity will be made if the insured undergoes orthopaedic surgery, vision correction surgery, cosmetic surgery, transsexual surgery,  dental care, or cosmetic surgery caused by non-accidental injuries.

Miss Tian sued to the court, requesting the insurance company to pay the above medical expenses.

[Case Study]

After the trial, the court of first instance held that Miss Tian had the laparoscopic sleeve gastrectomy based on the doctor’s advice for metabolic syndrome, which, according to the relevant notices of the National Health Commission, is a kind of endocrine disease. Therefore, the surgery performed on Miss Tian is a pathological resection surgery, which belongs to the insured accident agreed in the insurance contract. It’s ruled that the insurance company should pay Tian the insurance benefit of more than 30,000 yuan.

The insurance company appealed to Shanghai Financial Court.
Shanghai Financial Court held that according to the principle of proximate cause, the proximate cause of Miss Tian’s laparoscopic sleeve gastrectomy was her metabolic syndrome. In this case, this surgery was a pathological resection surgery. The insurance company’s rejection of Tian’s claim on the ground that the surgery was a cosmetic plastic surgery wasn’t supported.

Accordingly, Shanghai Financial Court dismissed the appeal and affirmed the original verdict.

“Sleeve gastrectomy” is one of the fastest and hottest ways to lose weight, but do sleeve gastrectomy for all purposes belong to cosmetic plastic surgery? Does the insurance company have the right to reject the claim according to the “beauty terms”? It should be determined according to the principle of proximate cause.

The principle of proximate cause, which refers to the most direct, effective, dominant and decisive cause of loss, is a basic principle in determining the insurance liability under insurance law. If the proximate cause is an insured risk, the insurance company shall be liable for indemnification; otherwise, it won’t be liable for indemnification.

In this case, the most direct, effective and decisive cause for Miss Tian’s laparoscopic sleeve gastrectomy is her metabolic syndrome, which is an endocrine disease and is covered by the medical insurance involved. Therefore, the insurance company shall indemnify Miss Tian for her medical expenses.

It should be noted that if the surgery is performed simply for body shaping, it belongs to the deductible scope stipulated in the medical insurance according to the aforementioned principle and the insurance company has the right to reject the claim.

[Relevant Laws]

I. Civil Code of the People’s Republic of China

Article 509 The parties shall fully perform their respective obligations as contracted.

...

II. Insurance Law of the People’s Republic of China

Article 17 Where an insurance contract is concluded by using the standard clauses provided by the insurer, the insurer shall provide an insurance policy with the standard clauses attached and explain the contents of the contract to the policy holder.

For those clauses that exempt the insurer from liability in the insurance contract, the insurer shall make sufficient warning to the policy holder of those clauses in the insurance application form, the insurance policy or any other insurance certificate, and expressly explain the contents of those clauses to the policy holder in writing or orally. If the insurer fails to make a warning or explicit explanation thereof, those clauses shall not be effective.

Article 23 The insurer shall, after receiving a claim for indemnity or payment of insurance benefits from the insured or the beneficiary, determine the matter without delay. If the circumstances are complex, the insurer shall determine the matter within 30 days, unless the insurance contract provides otherwise. The insurer shall inform the insured or the beneficiary of the outcome. If responsibility lies with the insurer, the insurer shall fulfill its obligation for such indemnity or payment within 10 days after an agreement is reached with the insured or the beneficiary. If there are stipulations in the insurance contract on the period within which indemnification or payment should be made, then the insurer shall fulfill its obligation accordingly.

If the insurer fails to fulfill its obligations as prescribed in the preceding paragraph in a timely manner, then, in addition to paying the insurance benefits, the insurer shall compensate the insured or the beneficiary for any damage incurred thereby.

 

(Authors: Yu Yongfan and Wu Bin, Shanghai Financial Court)

 

>> Chinese Version
The English version of this article, which is translated from the Chinese version by CTPC, is for reference only and shall be subject to the corresponding contents on the Chinese webpage.
Copyright @2014 Shanghai High People's Court, All Rights Reserved.