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Rubes v. Mega Life And Health Ins. Co., Inc.2/27/2002
tis. Liver function tests were ordered based on Rubes' enlarged liver and spleen. These tests revealed elevated liver enzymes.
The administration of antibiotics resolved Rubes' acute symptoms shortly after admission to the hospital. He was *267 eager to be discharged because he had no insurance to cover the expense and, moreover, his hospitalization conflicted with plans to attend his sister's wedding in California. Rubes' sister happens to be a physician, so Rubes prevailed upon his doctor to release him to her care. The physician's discharge notes reveal that he spoke to Rubes' sister, Dr. Susan Rubes-Heller, who assured him that she would draw "a CBC and set of liver function tests there as well."
Upon his arrival in California, Rubes was examined by his sister. She did not observe the liver or spleen enlargement noted in the St. Joseph's hospital records, nor did she observe any other symptoms of liver disease. Blood tests she performed revealed a low white cell count but the liver function results showed improvement when compared to the tests administered at St. Joseph's. She also learned, either from Rubes or from hospital personnel, that his HIV test was negative, as was the hepatitis screen. This was good news and minimized her concerns about liver disease. She evidently advised Rubes accordingly. What Dr. Rubes-Heller did not learn until mid-August was that not all the hepatitis results were reported before Rubes' discharge from the hospital. The full results disclosed the presence of the hepatitis B antibody (indicating a previous infection) and active hepatitis C.
Meanwhile, upon his return to Iowa, Rubes began shopping around for insurance. He called William Steiner, an agent for MEGA. Steiner testified that when responding to such calls he routinely inquires about medical history and treatment for drug and alcohol abuse because such matters may automatically disqualify the applicant, making further contacts futile. Evidently Steiner's preliminary inquiry revealed no such concerns because he arranged to meet with Rubes to fill out an application. What transpired at their meeting, and the answers contained on Rubes' application form, are at the heart of this controversy.
At this point additional facts about Rubes' personal history become important. Rubes candidly testified at trial that he is a recovering alcoholic. In 1991 he was convicted for drunk driving and completed a thirty-day outpatient treatment program for alcoholism. That treatment followed a long history of substance abuse, including IV drug use (heroin) during the 1970s and marijuana and cocaine use (as well as alcohol abuse) throughout the 1980s. He had an additional arrest for driving under the influence in the 1970s. He has reportedly maintained his sobriety since 1991 and actively participates in Alcoholics Anonymous (AA).
The MEGA application completed by Rubes on July 15, 1998 revealed none of this drug or alcohol history. In response to the question "Have you ... EVER had symptoms or been treated for ... alcoholism or drug addiction," Rubes answered "no." He likewise answered "no" to the question "Have you ... ever had your driver's license suspended ... or received any citations for driving while under the influence (i.e. DWI or DUI)?" Despite his recent hospitalization for pneumonia, Rubes answered "no" to a question regarding symptoms of "[r]espiratory disorder ... or breathing problems." Rubes, however, gave a positive response to an inquiry concerning "medical ... advice, hospitalizations, treatment or operations in the last 5 years." He described his May-June hospitalization this way: "bacterial infection, 100% full recovery, [n]o follow up medication or treatment." He also listed the names, addresses and phone numbers of the hospital and
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