Account of the cas

On 19 February 2024, A applied for a health insurance for their child B (born in 2017). Together with the application, A filled in the health report and replied in the negative to the questions related to B’s earlier diseases and traumas. The Insurance Policy was granted with standard terms and entered into force on 19 February 2024. A terminated the child’s earlier medical expenses insurance on 8 April 2024.

Once the Insurance Policy had entered into force, A claimed compensation for doctor’s visits of 1 April 2024 and 17 April 2025. When processing the claim, the Company went through the claims history under B’s earlier Insurance Policy, and on 3 May 2024, asked A to provide further information on B’s earlier medical visits. The information was received by 24 May 2024.

The Insurance Company issued its decision on the case on 31 May 2024. The Company found that when applying for the Policy, A had failed to observe their obligation to provide information as per Section 22 of the Insurance Contracts Act. The Company found that, while filling in the health declaration, A should have given an affirmative answer regarding atopic or allergic eczemas, eye infections, allergies with eye or respiratory tract symptoms, the medical visits during the past two years as well as treatment contacts related to mental health or behavioural disturbances during the past five years.

On 11 October 2017, B had been seen by a doctor due to skin symptoms and had been prescribed allergy tests and hydrocortisone creams and basic creams to treat eczema. On the visits of 30 October 2017 and 13 October 2017, further hydrocortisone and basic cream prescriptions were made. On the visit of 24 June 2020, prescriptions for Sibicort cream, Bepanthen and a moisturiser were written. The creams were prescribed for the treatment of atopic eczema. On 18 June 2021, B got a prescription for the allergy preparation Zyrtec and Nasonex for allergic rhinitis. On 27 February 2023, B’s mother contacted the healthcare services for eye discharge. The doctor prescribed antibiotic eyedrops to treat conjunctivitis. On 14 March 2023, B was diagnosed with acute conjunctivitis and prescribed Oftan Akvakol drops. As the symptoms persisted, Fucithalmic drops were prescribed on 17 March 2023. At the eye specialist appointment the same day, the prescriptions for the antibiotic creme Oftan Dexam, the cortisone drops FML Liquifim and the relief eye gel Oftagel were given. At the doctor’s appointment on 13 June 2023, the observed eye rubbing, running and blinking resulted to the prescription of Oftan Dexa-Clora and Zaditen eye drops. At the eye specialist’s appointment on 19 June 2023, B reported having a feeling of compulsive need to blink the eyes. B was prescribed relief eyedrops and other eyedrops to treat allergy. At a childhood disease and allergy specialist’s appointment on 21 June 2023, it was suggested that B’s eye blinking symptom, persisting for about two weeks, was compatible with a typical TIC symptom. According to the doctor’s statement of 13 May 2024, B had seen a doctor on 19 September 2023 due to eye blinking, and at that point, it was assumed that the symptom was due to the dry eye syndrome. On 13 May 2024, B’s mother called the doctor that the blinking syndrome had disappeared soon after the appointment in September 2023. B’s mother told the doctor that the relief drops against dry eyes did not help in the symptom in question and that the paediatrician had suggested it might be a TIC symptom. Despite the request, the patient record text of the 19 September 2023 appointment was never sent to the Company.

The Company said that the correct information would have resulted in the following individual exclusion being included in the Policy terms:

- atopic or allergic eczema
- conjunctivitis or dacryostenosis  
- allergic breathing symptoms, allergic rhinitis, allergic eye syndromes and nasal polyp
- mood, mental health or behavioural disturbance or sleep, emotional or neurotic disturbance.

The Company communicated that they would add the said exclusions in the Policy based on Section 24.2 of the Insurance Contracts Act.

A sought redress from the Insurance Company’s internal appeals body. In its decision of 24 June 2024, the Company’s internal appeals body did not recommend any change in the decision.

Customer’s complaint

A declares to be dissatisfied with the decision of the Insurer and request that the Insurance Complaints Board issue a recommended solution in the case.

According to A, B does not have any diseases and the Insurance Policy should be issued without any exclusions. A has provided the Board with a paediatrician’s statement according to which A is in basic health and has had a normal number of childhood viral infections. The child does not suffer from permanent diseases. At no point was B diagnosed with atopic eczema or allergic rhinitis or respiratory tract symptoms, pollen allergy symptoms, mental health problems, eye ophthalmia or dacryosteonis. The replies to the questions in the health declaration were given on the basis that B had not had any diagnoses related to the questions posed. A had acted in bona fide and it was not a question of intent or neglect. A also points out that B had had an insurance with this Company since his birth, and the Company could avail of the information in the previous claims.

Secondarily, A requests that B’s earlier health insurance be put into force. According to A, the Insurance Company had promised, prior to the application for a new Policy that B’s former health insurance with one individual exclusion can be held in force should A not be satisfied with the new Policy.

Reply by the Insurance Company

The Insurance Company contests the claim made by A. The exclusions are justified and there are no grounds to reinstate the old Policy. As regards the neglect of the information obligation, the Company refers to the details put forward in the decision of 31 May 2024.

As concerns the request of A to put the old Policy into force, the Company notes that A has been told repeatedly that when a new Policy is being applied for, a new health declaration must be filled in, and if the Policy offered would include exclusions on that basis, A would have, under such circumstances, the possibility to cancel the new Policy and the old Policy would remain in force. On 8 April 2024, A terminated the old Policy.

Further clarifications acquired                                    

 1. Health declaration

A has filled in and signed the health declaration on 19 February 2024. A gave negative answers, among others, to the following questions regarding B’s state of health:

”Has the insured had at least two eye infections during the last year, or does the insured have lacrimal duct obstruction?”

”In the last three years, has the insured had allergies that manifest as eye or respiratory symptoms, such as shortness of breath, coughing or rhinitis?”

”Does the insured currently have, or has the insured previously had (…) atopic or allergic dermatitis (…)?”

”In the last five years, has the insured visited a doctor, a psychologist or other health care or social welfare professional due to (…) other mental or behavioural disorder?”

”In addition to the examinations and treatments under the previous questions, has the insured been examined or treated by a doctor for some other illness, injury or symptom in the last two (2) years?”

2. Medical information

The Insurance Complaints Board has been provided with B’s medical information for the period from 24 May 2017 to 13 May 2024.

According to the details in the patient records by the paediatric specialist on 11 October 2027, attempts were made to start feeding B with solids in which occasion a potato and meat purée caused redness in B’s face. At the appointment, it was noted that the skin on the cheeks was dry and rough, and prone to erythema flashing. Allergy testing was programmed for B, giving the instruction to change the alternative milk product. A prescription was given for a course of hydrocortisone and basic cream for the skin in the face. The diagnosed recorded was atopic eczema and a rash caused by swallowed foods. According to the patient record text of 30 October 2017, one month earlier, eczema symptoms had started in B’s face area. At the appointment, mild atopic eczema was detected in skin of the cheeks. B had got prescriptions for hydrocortisone and basic creams. According to the recording of 5 December 2019, the paediatric specialist had written a prescription of the Bepanthen cream to treat B’s long-term skin disease. According to the recording of 24 June 2020, B had had a prescription of Sibicort, Bepanthen, Cerave Moisturizing Cream and Cerave Lotion products to treat a long-term skin disease.

According to what was written by a paediatric specialist on 18 June 2021, B had a prescription of Zyrtec for allergy and Nasonex for the treatment of allergic rhinitis.

According to the patient records written by the health centre on 27 February 2023, B had a prescription of eyedrops for the treatment of a mucopurulent conjunctivitis. According to the referral of 14 March 2023 by the health centre physician, B’s conjunctivitis diagnosed in late February 2023 had rapidly improved with the antibiotic drops. Now there was redness around the right eye, and B had told he had pain in the eye and under it. A referral was written for B to the University hospital paediatric outpatient clinic. According to the text written by the on-call duty paediatric service on 14 March 2023, B’s right eye had started to show symptoms the Saturday before, with itching and irritation. The eye was swollen but there was no discharge. B was treated with eyedrops, and that helped to reduce the swelling. Now B had rubbed the eye, and the surrounding were seen to be reddish. Based on the visit, a probable conjunctivitis was diagnosed, and the redness was assumed to result from rubbing the eye. According to the instructions, the medication with Oftan Akvakol drops was to continue for the total of one week. According to the marking of 17 March 2023 by the health centre physician, B had a prescription of Fucithalmic for conjunctivitis. According to the recording of 17 March 2023 of the eye specialist, B had a prescription for eye lid inflammation and conjunctivitis, including the Oftan Dexa eye cream, the ML-Liquifilm cortisone drops and the Oftagel relief drops against dry eyes.

According to the text of 13 June 2023 written by the eye specialist, B came for a checkup for eye irritation and blinking. B was diagnosed with unspecified conjunctivitis and was prescribed relief eyedrops and other eyedrops to treat allergy symptoms. According to another eye specialist’s marking of 19 June 2023, B had come to be seen for the blinking of the eyes. B had told there was a feeling in the eyes forcing to blink, as if the lid was rubbing against the eye. In February 2023, B had an eye infection and a prescription of Akvakol and Chlora drops. In March 2023, there was redness to the right eye, in the lid area, treated successfully with a cortisone cream. A week prior to that, there was a prescription to treat an allergic inflammation of the eyes. Based on the exams made at the appointment, some blinking was detected but no clear TIC-type symptoms. The diagnosis made was dry eye syndrome, to be treated by prescribed eye drops. According to the text written by a paediatric and child allergy specialist on 21 June 2023, B had had a two-week period of eye blinking with a prescription of Oftan Dexa and Zaditen drops not helping. The eye specialist found that the eyes were healthy. At the appointment, occasional eye blinking was noted. The doctor thought it was a typical TIC symptom and gave the instruction to administer some drops to the eyes if necessary. The diagnosis was transient TIC. According to the text written by the eye specialist on 13 May 2024, B’s mother had taken contact by phone. B had seen the eye specialist on 19 September 2023 because of the blinking. When examined, a thin tear film on the eye surface was found but nothing inflammatory. The symptoms were found to related to the dry eye problem. However, B’s mother reported that the blinking syndrome discontinued soon after the September 2023 visit. The eye drops for dry eyes were of no use. The paediatrician has suggested that the reason for blinking could be a TIC symptom.

Recommended solution

Formulation of question

The question here is whether A, when filling in the health declaration of 19 February 2024, neglected his obligation to provide information as per  Section 22 of the Insurance Contracts Act, and whether the Insurance Company had the right to impose, retrospectively  the individual exceptions in the Insurance Policy. Moreover, the question is whether A has the right to have B’s earlier health insurance reinstated, terminated by A on 8 April 2024.

The applicable norms of law

Under Section 20 Subsection 1 (14 May 2010/426) of the Insurance Contracts Act (28 June 1994/543), if the policyholder or the insured wilfully or out of negligence that cannot be considered slight fails to fulfil the duty of disclosure imposed on them as per Section 22, and the insurer would have issued the insurance only against a higher insurance premium or on terms and conditions other than those agreed had true and complete information been given, the insurance continues to be in force against such higher premium and on such other conditions. The same applies if the policyholder or the insured has acted in bad faith while fulfilling his duty of disclosure and the insurance contract is nevertheless binding on the insurer pursuant to Section 24 Subsection 3.

According to Subsection 3, after learning about the failure to fulfil the duty of disclosure or about a change in any circumstance relating to the insured the insurer shall, without undue delay, dispatch the insured a notice  on how and from what time on, the premium and other insurance terms change. The notice shall include a mention that the policyholder is entitled to terminate the Insurance Policy. If the insurer fails to dispatch a notice in accordance with the provisions contained herein, its right to alter the premium or any other terms or conditions is forfeited.

Under Section 22 of the Insurance Contracts Act, before the issuance of an insurance contract, the policyholder and the insured shall give true and complete answers to the insurer's questions which may be of importance for the assessment of the liability of the insurer. Moreover, throughout the insurance period, the policyholder and the insured shall without undue delay rectify any errors or deficiencies that they may discover in the information given to the insurer.

Under Section 24 Subsection 2, the insurer is discharged from liability if the policyholder or the insured has, either wilfully or through negligence which cannot be considered slight, failed to fulfil the duty of disclosure, and if the insurer had not issued the insurance had true and complete answers been given. If, however, the insurer had issued the insurance in any case but only against a higher premium than agreed or otherwise on different terms, the insurer's liability is limited to an amount which corresponds to the agreed premium or to the terms and conditions on which the insurance would have been issued.

Under Section 35 Subsection 1 of the same Act, the insurer may not invoke failure to fulfil the duty of disclosure if the insurer or a competent representative of the insurer knew or should have known at the time the insurance was issued that the information was incorrect or incomplete. This provision does not apply if the policyholder or the insured acted in bad faith and the insurer or its representative did not know that the information was incorrect or incomplete. 

Evaluation of the case

1. Neglect by the Policyholder to disclose information

The Insurance Complaints Board notes that under Section 22 of the Insurance Contracts Act, the party applying for the insurance shall give true and complete answers to the Insurer's questions in the health care report. Has he or she failed to fulfil this legal obligation, the consequences of the negligence must be assessed, as far as the liability of the Insurance Company are concerned in cases of insurance of the person, under Section 24 of the Insurance Contracts Act and for the change of Policy terms, under Section 20.

When assessing whether or not the Policyholder of the Insured has neglected the duty of disclosure as well as assessing the quality of his or her eventual negligence, the information available to them and in force during the closing of the contract and the relevant circumstances must be taken into account. Attention must also be paid to the quality and clarity of the questions posed by the Insurer. It can be deemed that there is no negligence or it is of minor importance if, for example, the Insurer’s question is so general or open to interpretation that it is difficult to provide an accurate or complete answer.

The Policyholder A has filled in the health declaration of the Insured B on 19 February 2024. A has provided a negative answer to all questions related to B’s diseases and traumas. Among other, the health declaration included questions of whether the Insured had had, during the past year, at least two eye inflammations, whether they had had allergies during the past three years, causing eye or respiratory tract symptoms, whether the Insured had now or whether they had ever had atopic or allergic eczemas, whether the Insured had, during the past five years, seen a healthcare or social welfare professional for mental health or behavioural disturbances or whether the Insured had been treated for a disease, trauma or symptom, other than those mentioned in the health declaration, by a doctor or treated during the past two years.

According to the medical information available to the Insurance Complaints Board, B has been examined and treated for skin symptoms since the year 2017. The diagnosis given has been atopic eczema, and B has had prescriptions for cortisone and basic creams. The most recent prescription for eczema creams dates to 24 June 2020. The Insurance Complaints Board finds that on the basis of the above, A should have given an affirmative answer to the non-time-limited question in the health declaration concerning atopic or allergic eczemas. The Complaints Board find that the question is clear and unequivocal. Taking the long-term skin symptoms, several doctor’s appointments and the medicinal and basic creams in use, the Complaints Board finds that the negligence of A has, in this respect, been major than minor.

Based on the medical details, B has been diagnosed with conjunctivitis on 27 February 2023. The inflammation improved with the help of antibiotic drops, but in March 2023, B had conjunctivitis anew, and several subsequent contacts to the healthcare system and several different prescriptions of medicinal products. On 13 June 2023, B was diagnosed with a non-specified conjunctivitis. The Insurance Complaints Board finds that A should have given an affirmative answer to the question whether the Insured had had, over the past year, at least two eye inflammations. According to the Board’s view, the question was clearly formulated and unequivocal. The Board finds that A’s negligence is major than slight, considering especially the number of treatment visits related to the inflammations.

On 18 June 2021, B had a prescription of Zyrtec for allergy and Nasonex for the treatment of allergic rhinitis. On 13 June 2023, B had a prescription for eyedrops for the treatment of allergy symptoms. The Insurance Complaint Board finds that on such grounds, A should have given an affirmative answer to the question whether the Insured had, during the past three years, had allergies causing eye or respiratory tract symptoms. According to the Board’s view, this question was also clearly formulated and unequivocal. A’s negligence cannot be regarded slight, considering the clear formulation of the question.

In 2023, B was examined because of the eye blinking symptom and B was seen by an eye specialist and paediatric doctor. On 21 June 2023, the paediatrist suggested that the symptom is compatible with the so-called TIC symptom, i.e., perturbation ticiformis. The diagnosis was transient TIC. However, on 19 June 2023 and 19 September 2023, the eye specialist made an assessment suggesting the dry eye syndrome. The Insurance Complaints Board finds that based on these visits, A should have given an affirmative answer to the question about medical exams or treatments in the past two years. The Complaints Board finds that the question is clear and unequivocal. The Board finds that A’s negligence was major than slight, especially considering the fact that the symptoms had required several visits to a specialist.

In the reply, A refers to the fact that the Insurance Company was aware of B’s treatment history since the claim for expenses had been applied on the basis of B’s former Insurance Policy. Under Section 35 Subsection 1 of the same Act, the insurer may not invoke failure to fulfil the duty of disclosure if the insurer or a competent representative of the insurer knew or should have known at the time the insurance was issued that the information was incorrect or incomplete. According to the legislative preparation (HE 114/1993 vp, p. 49), when the provision is being applied, the awareness of the insurer is deemed to be the awareness of the person employed by the insurer, charged to present the case or make the decision on the potential granting of the policy. The representative of the insurer in question refers to a full-time employee of the insurer or their part-time agent, otherwise participating in the handling of the application at hand or with whom the customer has had negotiation about the policy.

The awareness of insurer’s representative regarding the incorrectness or inadequacy of the customer applying of an insurance shall have significance if the representative participated in the chain of events leading to the signing of the insurance contract. Therefore, such representative need not have the competence to conclude the insurance contract with the customer (Hoppu, Esko – Hemmo, Mika: Vakuutusoikeus. WSOYpro 2006, p. 81). In the precedent decision practice of the Insurance Complaints Board (VKL 559/03), it has been found that in Insurance Contract negotiations, the insurer or their representative have become aware of the information given verbally on the applicant’s state of health as per Section 35 Subsection 1 of the Insurance Contracts Act. In contrast, information provided by the applicant, for example, during claims handing, to the Company, are not considered to be given to the insurer or their agent (VKL 470/01 and VKL 294/02).

Referring to what has been said above, the Insurance Company points out that the fact that claims have been made to the same Insurance Company for B’s diseases based on a previous Insurance Policy, does not prevent the Insurance Company from pleading A’s negligence of the information obligation. Therefore, a judgement must be made on the consequences of A’s obligation to provide information as per Section 24 of the Insurance Contract Act.

2. Consequences of the neglected obligation to provide information

Under Section 20.1 and 24 of the Insurance Contracts Act, if the policyholder or the insured wilfully or out of negligence that cannot be considered slight fails to fulfil the duty of disclosure imposed on him and the insurer would have issued the insurance only against a higher insurance premium or on terms and conditions other than those agreed had true and complete information been given, the insurance continues to be in force against such higher premium and on such other conditions.

The Insurance Company has declared that had it had the correct information on B’s state of health, the Policy would have included individual exceptions related to atopic and allergic eczema, conjunctivitis or dacryostenosis, allergic breathing symptoms, allergic rhinitis, allergic eye symptoms and nose polyposis as well as mood, mental health or behavioural disturbances or sleep, emotional or neurotic disturbances. The Insurance Complaints Board finds that the Insurance Company’s information on their risk selection solution is credible. According to the information presented, B had had atopic eczema, eye inflammations and allergic respiratory tract and eye symptoms. In the summer of 2023, he was suspected of having a transient TIC disorder (T95.0). In the ICD-10 Diagnosis Code, TICs are classified under diagnoses related to mental health disorders.

The Insurance Company has informed the A about the continuation of the Policy under amended terms as required by the law in question and without undue delay. The Policy is in force with the individual exceptions as per the decision of 31 May 2024 of the Company.

3. Request of reinstating the terminated Policy

A has demanded that the Insurance Policy terminated by A on 8 April 2024 be put back to force should the Insurance Complaints Board find that the Insurance Company’s decision on the new Policy’s exceptions be justified.

Based on the online messages between A and the Insurance Company, given to the Insurance Complaints Board, on 15 January 2024 A asked the Insurance Company for the grounds for the exceptions on atopic or allergic eczema included in B’s then Insurance Policy. A found that the exception was not justified. On 16 January 2024, A was given the instructions that, if so desired, A could apply for a new Policy for B but that would call for the filling in of a new health declaration. On 17 January 204, A was told that they would be sent an offer for a new Policy and the health declaration to be filled in. A was told not to terminate the old Policy before it was known under which terms the new Policy could be granted. On 22 January 2024, A was told that if any further exceptions were to be included in the Policy on the basis of the health declaration, A would have the right to withdraw the new Policy and the earlier Insurance Contract would remain in force. On 8 April 2024, A terminated the old Policy.

The Insurance Complaints Board notes that B’s old health insurance ended as a result of the termination by the customer A. The Insurance Company is not under obligation to reinstate the Policy. The Company has not committed itself to put the old Policy back to force upon A’s desire but has instructed A to take the decision on the old Policy only when it is known on which terms the new Policy can be granted, given the health declaration. The Insurance Complaints Board does not recommend that the terminated Policy be put again in force.

Final outcome

The Insurance Complaints Board does not recommend any change in the case.

The Insurance Complaints Board’s decision is unanimous.

INSURANCE COMPLAINTS BOARD

Chairman Luukkonen                                     
Secretary Laine

Members

Korkeamäki
Kummoinen
Rahijärvi
Sibakov