Bobroff responds to Discovery 'attack'

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Cape Town - Attorney Ronald Bobroff is not satisfied with the version of Discovery Health [JSE:DSY] regarding the way they approach Road Accident Fund claims.

He reacted to an article on Fin24 in which Discovery explained that it always pays for the treatment of any member or dependent injured in a motor vehicle accident in accordance with the member’s specific medical aid plan.

READ: Discovery hits back at road accident claims

"Discovery fails to explain why it has a special rule 15.6.1, which specifically imposes special obligations on a member, who sustains an injury 'as a result of or arising out of the negligent driving of a motor vehicle …. The member or dependent shall be obliged to take all steps which are necessary to timeously submit to the RAF … a claim for compensation for the costs of any health care services performed and which in the future may be necessitated in connection with such injury'," said Bobroff.

He claims Discovery is being "dishonest" by being "silent as to Annexure C to its rules headed "exclusions and limitations".

Bobroff claims section 2 of Annexure C states “expenses incurred in connection with clause 15.12 of the main body as well as any of the following, will not be paid by the scheme: All costs of whatsoever nature incurred for treatment of sickness conditions or injuries sustained by a member or a dependent and for which any other party is liable”.

Bobroff claims Discovery compels members or their dependents, who sustain injury in road accidents, to sign what he calls "an illegal and immoral undertaking document, which specifically states in paragraph 4 thereof 'I have been informed that should I not undertake to reimburse Discovery Health or if I fail to honour my obligation in terms of this undertaking for past hospital and medical expenses paid on my behalf for injuries sustained by me in the incident, any payments made by Discovery Health will be reversed and will be for my account'".

Bobroff claims Discovery Health will disavow liability for payment of any future costs relating to the incident and makes it clear that the member is compelled to bear the legal costs involved.

Discovery said in its statement that "if a member or dependent subsequently becomes entitled to any benefit from the RAF, the member or dependent may submit a claim to the RAF for compensation and reimbursement of related medical expenses. The scheme does not force members to claim from the RAF."

The medical scheme explained that if a member or dependent receives compensation from the RAF for medical expenses, the member must then refund those amounts previously paid by the scheme for the member’s medical expenses.

This is to avoid the member being unjustly enriched at the expense of the scheme by receiving double compensation for the same health event.

To this Bobroff responds that members pay an insurance premium in return for which they reasonably expect that they will receive medical care from the scheme arising out of any instance.

"Discovery constantly refers to the principal of subrogation - that is where an insurer compensates an insured, the insured in return for such compensation agrees at absolutely no risk and cost to assist the insurer in recovering whatever the insurer has paid out from the wrongdoer," according to Bobroff.

"The insurer specifically indemnifies the insured against any adverse cost order which might be made against the insured if the claim instituted by the insurer in the name of the insured is dismissed by the court."

He claims Discovery, "as is noted in its rule 15.6, its exclusion annexure and its undertaking document specifically requires the member to bear all the legal costs involved and offers no indemnity to the member against the adverse costs order in the event of an unsuccessful claim".

Bobroff claims Adv. J. Kemp (SC) wrote an opinion regarding Discovery's rules "to the effect that Discovery was not entitled to receive any reimbursement whatsoever, save that in respect of future medical expenses arising after the accident the injured person would be limited to claiming either from the medical scheme or the RAF but not both".

Discovery responds:

In response to these allegations Discovery referred back to its statement in this regard and once again said that no member who has suffered any injury from a motor vehicle accident has ever been denied cover and no member will ever be denied cover.

All medical claims irrespective of their cause are paid in accordance with a member’s plan type and benefits.
No member has ever been forced to claim from the RAF by Discovery. However, Discovery is not aware of any member who has voluntarily not claimed from the RAF where they have a claim given the benefit to a member of claiming from the RAF.
It is an accepted principle of insurance law that no member should be compensated twice for the same event - that is, if the RAF pays claims which have previously been paid by the scheme, such claims must be refunded to the scheme.

Informing members

Bobroff claims Discovery "does not adequately inform members of the scheme rules and, as a result, has no right to be refunded RAF claims in respect of medical costs incurred by the scheme on behalf of the member".

"Despite repeated allegations by Ronald Bobroff since 2011 that Discovery has not and does not comply with cardinal peremptory provisions of the medical schemes act, in that it has not and does not inform or instruct its brokers to make full disclosure of Discovery’s own risk exclusions and conditions applicable to Road Accident medical costs, that  it has not and does not furnish members on admission as members of the scheme with the detailed summary of the rules required by the act, and numerous other sections of the act as referred to in Annexure 1 in RBP’s main document; Discovery has never furnished proof or indeed specifically alleged that it has and does comply with those sections of the act," said Bobroff.

Bobroff also claims that Discovery Health members and their families are approached while in hospital and forced to sign undertakings to refund the scheme in respect of RAF reimbursements. An allegation Discovery denies.

Bobroff mentions affidavits by Mark and Jody Bellon in which they claim "to have been harassed and intimidated by Discovery".

"Jody whilst Mark was in a coma in hospital, and Mark while he was still suffering major sequelae from his brain injury. RBP has affidavits in its possession by other Discovery members deposing as to similar harassment and intimidation," said Bobroff.

Regarding Discovery's statement that all Discovery Health members are guaranteed coverage in respect of the medical costs incurred as a result of a motor vehicle accident, Bobroff responds that "if this is so why then does Discovery have its notorious and never disclosed Rule 15.6.1 and Annexure C of exclusions as referred to above?"

"Why does it continue as recently as last week to compel members injured in road accidents to sign its illegal undertaking document under threat of termination of medical care and the reclaiming of the costs of care already rendered. Given the inability of the vast majority of South Africans, and certainly a large proportion of Discovery’s members to afford to pay for the cost of private health care following serious road accident injury, members have little choice but to sign Discovery’s undertaking document," writes Bobroff.

Discovery responds:

The scheme fully complies with all provisions of the Medical Schemes Act. This has been confirmed by the Council for Medical Schemes in its Bellon ruling and media release.

Discovery categorically denies that Jody Bellon was approached while her husband was in a coma. Discovery also categorically denies that either Jody or Mark were harassed or intimidated in any way whatsoever.
Discovery no longer requires any member to sign an undertaking to reimburse medical expenses paid by both the RAF and the scheme, on the basis that members are legally required to reimburse any payments received from a third party and also paid by the scheme.

This principle was confirmed in the Bellon ruling.

- Fin24

* Are you a member of Discovery? Had any dealings with the Road Accident Fund? Share your experiences - you could get published.

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