call the next case of dawn jones versus golden rule insurance company sorry good morning morning may it please the court my name is jennifer jordan and with josh still we represent the appellant in this matter this case involves golden rule insurance companies failure to provide coverage for appellants treatment of breast cancer in violation of its obligations under its contract of insurance with appellant the central issue in this case is whether golden rule can use a preexisting condition exclusion to deny coverage for the treatment of breast cancer where you have no diagnosis of breast cancer or cancer no symptoms of breast cancer no treatment or care provided to the appellant for breast cancer and no medical if by sri sieved by the appellant for breast cancer before the effective date of the contract of insurance but under a as i read it it is a condition for which medical advise diagnosis cure or treatment was recommended the operative word condition for which diagnosis was recommended which i interpret or and i think the defendants do as well that i diagnose das ti procedure was recommended to be conducted to clarify what was a suspicious circumstance is that not what happened here your honor what happened here and specifically with the facts we had appellant who went for her annual physical examination in the beginning of two thousand and fourteen at the physical examination she reported no symptoms whatsoever and none were documented in the medical records as part of the annual physical examination process her general practitioner ordered a screening mammogram like all women do over the age of forty she went in then had that screening mammogram in april two thousand and fourteen thereafter she received coverage from golden rule insurance company health insurance in june and i think it was effective june twenty sixth of two thousand and fourteen on july fourth ask if she has a second mammogram that was recommended because because of what had happened in the first mammogram current no your honor that's right you're right that's right the first am there and then after that through after that that was looked at then a second mammogram occurred after right she did not receive the recommendation or or the report that indicated that she needed to bauer in terms of the recommendation the report itself indicates that there needed to be a second mammogram you are you are correct but in terms of the actual receipt of that recommendation or even understanding or knowing what that result was appellant didn't get that until july fourteenth which was after the effective day but she has some notification she needed the second mammogram because she got mammogram the same day she got the report didn't she you have to make an appointment ahead of time no in terms of what we're talking about here is we've got the screening mammogram that happened in april twenty fourth we have insurance the insurance contract becomes effective twenty six on july of some other events we have her leave her job april thirtieth and declined to enroll in cobra because it costs too much and then we have her there dr bauer does a report in may noticing a lot of suspicious things and then she june twenty fifth gets this policy in july fourteenth she gets the second mammogram but the doctors analysis of this had occurred before she gets that second or his concern about the need for another diagnose it occurs the  reading of the film occurs before the effective date but actually understanding having any knowledge or any awareness of exactly what that that result was the appellant did not have that and neither did her general practitioner it is undisputed why did she get a second mammogram july fourteenth then she got a second mammogram on july fourteenth because that's when she actually got the results or got the recommendation found out she actually had the mammogram that same day she did because was back and she gets the report in the mail she drives over and gets a second mammogram actually she didn't get the report in the mail she was present at the doctor's office demanded to get the report they handed it to er and she said look at all y'all haven't gotten this to me you need to get me and get this done a set which they did that day so the day that she actually got the report and got the recommendation for the second mammogram she actually had it done that day in the key here what the word diagnosis means does it mean diagnostic procedure or does it mean diagnostic conclusion you're exactly right judge gilman and in terms of specifically under georgia law and how we've looked at these cases before diagnosis has never been necessarily defined under georgia law in one of these insurance cases however it's interesting because there is the case of bergen i believe it's bergen versus time insurance me and why is this important because in bergen there was a clause that was comparable to the one here except it didn't have the word diagnosis in it so you think well how is that important well it's important because in terms of the facts of that case you had a situation where there were signs or symptoms of ovarian cancer or some kind of got a cancer the doctor said to the insured prior to the effective date said you should probably go get an ultrasound or see somebody else about this she didn't do it the effective date happens and then she gets a diagnosis after the fact now diagnosis isn't there but the court they are said that it was proper for the insurance company to deny coverage because of the vice  received so the whole idea that telling someone or there being a recommendation for a diagnostic procedure actually means the word diagnosis when you have georgia law that indicates when there has been a recommendation for a diagnostic procedure that that actually falls under the word advice you basically if you if you construe diagnosis to mean diagnostic procedure or recommendation for diagnostic procedure you basically render advice  it's just extra they can mean the same things if in fact what we're talking about is the receipt of some advice to get another procedure it can paul under vice the problem here in why this was such a forced reading of the language and why we use the word diagnosis to mean a recommendation for a diagnostic procedure is because the fact she had no clue she was not given a recommendation she was not told what the results showed or that there was anything on it in terms of it being suspicious judge carnes specifically it was inconclusive they did not get a good read and so by read zero that basically means we have to do a redo because we can't see what's going on and there is there has been this interpretation or this kind of extra gloss on things to say that somehow because you have to you have an inconclusive mammogram that doesn't say cancer doesn't say malignancy doesn't say anything like that and in fact uses terminology medical terminology to mean that it's inconclusive to somehow it quite to cancer is just not in line with as medicine or with fact as judged saying that whenever she actually physically got the report the diagnosis a diagnostic procedure was recommended you would agree before within the last sixty months before her policy again it was recommended in may that she have a diagnostic procedure i would  respect to that the report itself says you know there should be a redo right that's what the report says but you can't have a recommendation in a vacuum and also you can't force you know recommendation for diagnostic procedure when under the actual language of the exclusion policy you have the word the receipt of advice and under all of the cases all of the cases what was important in the cocoa in terms of when you sat on that panel judge gilman or any of the other cases at the end of the day what we're talking about is either objective awareness of the condition right for which objective knowledge or in the cocoa what we were doing as we were looking at ohio law to basically say look even if you don't have an objective diagnosis if there are subjective symptoms that would lead a reasonable person there then then it's ok to deny coverage under this here we don't have any that we absolutely don't have any of that we have no knowledge we have no symptomology we have nothing except someone who has no idea that anything is wrong with them they enter into an insurance contract and they're after are told well maybe you need to get your mammogram redone and then when they do that it ends up turning into a diagnosis of cancer or you could even take it back a step further i mean every woman over forty is supposed to get an annual screening mammogram results of not so sure about this better go have a three d or go have another one that point the loss of better get health insurance and your argument would be at that point you don't have a diagnosis of cancer so it's ok to get the health insurance and cover it but according the defendant's reading of this is it for which diagnosis is recommended means that if your recommended they've seen something it's recommended you get a diagnosis you go have a procedure and if it turns out the diagnosis is related to that condition which the recommendation procedure was may then defend its argument is that it's preexisting correct and you disagree without that i disagree in terms of of what you say the appellant's argument is basically what we're saying is if she would have received that recommendation to get a second mammogram that would have been receipt of medical advice under the thing now do i dispute whether or not that was your big point then the fact that even the recommendation for a diagnosis was made in may that she didn't get the recommendation until later is that your argument well that's one of them i would i would argue that there is no competent evidence in the record or no medical evidence to say that even that result that was inconclusive it was absolutely inconclusive he said i can't see anything right that is what the doctor says i can't see anything she needs to come in we need to get another we need to get a redo on this that i don't think that that is for cancer that is a recommendation for a diagnosis of cancer but even if it were right even if we were to say that on its face the fact that she did not receive that recommendation that she did not receive that where well it does in terms of the subject of awareness prong which is be too but in terms of anything talking about a right absolutely in terms of ambiguity we think a and b should be read together but well we'll move on but in terms of a what a does is it is kind of the objective awareness criteria part of it right we know back in law school that's what we were taught that for preexisting condition exclusion there are two ways to look at it either you object if we know you have a condition or you should know either you do or he should in here we don't meet either of those and so i'll reserve the rest of my time and thank you so much comeau good morning morning my name is chris campbell along with brooke graham we represent golden rule let me start out by responding to what the panel seemed to be most interested in the discourse and that is is there a requirement jones be aware that any of the interpretation of the mammogram has occurred and it's very clear from the way the policy is worded and preexisting exclusions of paragraph a that it's not it says recommended or received it doesn't say recommended and recy doesn't say received only if the appellate is correct they are taking recommended out and the court would have to read recommended out of the exclusion in order for them to find in her favor ms jones condition triggered subparagraph in three of the full ways that it could be triggered obviously you've talked already about diagnosis but also her cancer was a condition for which she had also for which medical advice and care also had been recommended so even though the trial court focused on diagnosis we raised all three of those and the court can affirm if it has a concern about diagnosis and the proper definition and why why why why just a minute a is i look at it the eels with known condition b deals with unknown conditions and i basically right on th absolutely right ok and say deals with pregnancy and any lay person looking at that would say there's an order to that a deal's a something for which medical attention has been directed by the plaintiffs and have to know about that or this patient doesn't have to be aware of  has to be i mean particularly if you just look at words that aren't key here but the care or treatment or two of the four words and essay and if she had been recommended for care or treatment of cancer clearly she'd be out the window here in this case that's correct but those recommendations also constituted medical advice that would trigger the exclusion also the reading of the mammogram itself is care that would have constituted not care for cancer no certain care in the sense of who who is not license in georgia right that's correct that's not a requirement for him to get best for testimony in the case and this test on this case and chats requirement under b b one that's correct your honor but we did not move on the move solely on a and that's the issue that's presented for and that's what the district court looked at but it's forty years of treatment he is able to testify having ordered many screening mammograms and many diagnostic mammograms that they are not one in the same thing this screening mammogram was reading the interpretation that dr mauer she is concerned about the possibility of a malignant see she says we need to have a diagnostic mammogram with these specific views to see how desiring the boy say and it's clear what d with is what dr dubois testified to regarding his interpretation of the medical record let me ask you then that's undisputed if the word diagnosis is ambiguous because it could mean diagnostic procedure or it could mean diagnostic conclusion then it clearly were in the april mammogram even as read in may it was not a diagnostic conclusion that the plaintiff had cancer that's correct you know what has to be for you to win it has to be a fact the word diagnosis could mean diagnose diagnostic conclusion then you're out the window if that's all it means yes because we don't have a diagnostic and lie but if it's ambiguous you also lose right because of there's any ambiguity in this contract is construed against golden rule drafted it not necessarily if a word can have two different meanings like the court found in the cocoa case it can mean both in this particular case a recommended diagnosis makes no sense just like it made no sense in the cocoa so the only reasonable interpretation of that is that it's a recommendation that she go get a diagnosis well you know let's look outside on the word advice which is one of those four words you know just say recommended the recommended vice makes no sense either does it well though if i go back i say advice itself is a recommendation that's true that's exactly right oh so the word recommand may not mean the same thing as  you know only it could mean the playing of says it could mean a dimension or introduces being worthy of acceptance but that's not an ambiguity in the contract s a s an inconsistency or an ambiguity perhaps in the facts and how you apply them but that doesn't make the contract itself in this well let me ask you this if golden rule had wanted to exclude coverage for a diagnostic procedures you know as a condition that occurred within the last five years it could have said so explicitly couldn't it i think they did say so explicitly because their cases but i've found that in other cases where the the language of the policy includes diagnostic procedures yes or and where you have and those are arising out of similar cases to the ones that bind us rely on in this case the ross case bergen i'm sorry ross and others that we cited where and the cocoa court dealt with all of those because the preexisting condition exclusion was different it said all of them said that treatment must be risky we don't travel on treatment here the reason those course went off in the direction that they did is because treatment necessarily intimate the diagnosis has been made and  because those preexisting condition exclusions did not specify whether a diagnosis was fired they were found to be ambiguous in those cases we don't have that situation here otherwise the solution in the cocoa immaterial arc is who specialized in long cancer and all that was before the policy became a fact so in that case fairly distinguishable from what we've got here now and there is no designation of that there was no mass saying there was no recommendation that she go to  oncologist i mean to say that there was no cloud you know i think the difference in a doesn't it's not a distinction that makes a difference in that case is there was more attention devoted to his condition before the policy became effect and then in this case also he was aware of the attention that had been devoted to it was a lot of suspicion but that's the area where this fish and here based on the april mammogram it's in the fact that she says further studies need to be done well is that she says inconclusive right she needs a more detailed mammogram that's correct but she doesn't say i can't see anything here repeat this screening mammogram that's not what happened dr bower saw enough a lot of calcifications that are significant because they couldn't follow a ducting and indicate the presence of cancer she said more detailed examination not to repeat more detailed examination of these areas need to be done and perhaps and ultrasound as well and that's significant because that is diagnostic that it went toward what is the evidence in the record the the mass in the cancer there within the cancer that will based on the testimony of dr de that's correct but that also the testimony the treating physicians he said aren't cancer and so this is going to boil down to whether we think that under a whether the diagnosis of cancer was a known condition at the time and that's the question that because of its diagnosis isn't tarbert the main diagnostic conclusion you don't have a d dictionary definition says well i was thinking there is either one i mean i read it if you can define diagnosis is either diagnostic procedure or a diagnostic conclusion and if that if it can if you have two different interpretations of what the word diagnosis means you're going to lose aren't you know your honor because it makes no sense to conceive to construe it the way an ordinary lay person would under georgia law and that doesn't mean splitting hairs it means what would a layperson see if they saw that and what they would understand is that if you have been recommended to go get a diagnosis that's preexisting the idea behind the policy exclude conditions that existed whether you knew it or not right but mostly  and treatment are pretty clear if she had had any care or treatment for cancer you know before the policy became effective clearly she's out the window i don't know that the policy requires care and treatment for the cancer it requires care treatment for the condition i'll go that far and how what is it that well that the condition we're talking about his breast cancer or the condition we were talking about at the time the mammogram was taken was a line of calcifications that later was diagnosed as breast cancer that diagnosis doesn't have to condition proved to be is what it is but the point is not me don't typically get treated for just calcification no your honor but you will have diagnostic tests devoted to that to determine whether it's cancer and it's the condition whatever it happens to be if it turns out to be fiber cystic disease if it happens to be scar tissue from some unrelated infection or if it happens to be cancer which is the first thing that dr de boys testified you think whatever it is that was the condition which you don't get treated for fibrocystic disease you don't get three nestor calcification you get treated only if it's cancer that's true and if all we were talking about is treatment you'd be right but the valuation that you go through determine whether it's cancer or five or six a disease that's certainly because as the district court found that was squarely on point and it also admitted because there are it's very clear and you can put aside the medical advice i understand your concern about that you can't really get around care you can't really get around diagnosis either one of those is sufficient to trigger the conclusion one way or the other that is resisting and it's a paragraph if you have any more questions i'm glad to answer them thank you and this journey opposing counsel talked about bergen if you could help me a bit more that case my notes indicate that in bergen says georgia case the doctor during the lookback period found a large pelvic mass in the patient and he recommended she undergo an exploratory procedure it wasn't diagnosed as as to ovarian cancer though until after she had gotten a policy apparently and the georgia court said an illness or injury for which medical care treatment medicine or advice was received during the lookback period how how do you distinguish that your opposing counsel says that is his best case your honor i think is one of our better cases to specifically because in terms of the recommendation made is that i require the patient to receive the advise accurately so we have this you have a recommendation by a physician or for a patient to go get a diagnostic procedure or to see a specialist because he thinks something is wrong and they are what they did is they construed the receipt of advice to be where that falls under whenever there's a recommendation for a diagnostic procedure and so here in light of that where we have that language it vice is specifically well here let me anticipate he can't stand up again but i think what the next question i would have and that this policy  recommendation of a diagnosis i recommend gnosis that is an ant for example a doctor would say if cancer is being suspected i recommend that you have a diagnosis whether there's cancer the doctor would say i recommend a diagnosis of cancer you don't recommend the result you can only recommend the procedure correct that is correct but that's what the procedure or the recommendation for a procedure would fall under advice diagnosis is the fact  of a certain condition correct and so what judge gilman was saying is that there are two different ways we can look at this you can look at it as a diagnosis in that this is you have cancer or you can go further which is what the district court did and say well we recommend that you get a diagnostic procedure now is that a reasonable way to look at it sure is that the way i read it no but the fact of two different interpretations here that means that it's same big us when you have an ambiguity you have to construe it in favor of the insured and in favor of of coverage and so that's why you know if you read it just like it is a diagnosis that's for c there you go that is not what happened here and so a is you know we don't come and i don't know man did you would say then to make that word still have some use you would tie recommended only other nouns you would recommend you tie that to treatment i guess or care i would say a condition for which medical advice was received a condition for which a diagnosis was received a condition for which care was recommended or received or a condition for which treatment was recommended or received it's how you would normally read this in any other context and just because it's an exclusion you don't do otherwise and when you look at the word diagnosis yes you can go to the dictionary in come up with three or four different ways that you can you can say what diagnosis may mean but but the ordinary reading of this or the way i read it initially was that you actually have to have some kind of diagnostic result and it makes sense here because if you're talking about the recommendation for a diagnostic procedure we know per bergen that that would fall under the advice  you have cancer and i won't know until you have a biopsy and check it out you have a problem i gather your position is though that there was no suspicion based on the april mammogram only that we needed further further diagnostic procedure to see if she had cancer right i mean what is your position though about the calcium the calcifications well even dr de bose is not qualified under the contract and i daresay under  any analysis he would not be he would not be qualified to offer expert testimony with respect to this that you don't have excluded underdog no because this is a breach of contract issue in terms of whether or not they met what they were supposed to do under the contract and they specifically define qualified doctor under the contract to someone who is licensed in this state that's basically what we were going with in terms of the calcifications if you look at his testimony he says he doesn't know the buy read systems the calcification is something he would have to leave for a radiologist to interpret he said that he didn't read the imaging he didn't find of this mass they find months later somehow equals the calcifications that's just not true and there is no medical evidence to that effect whether it's from doctor to bose who is not qualified  otherwise or just on the face itself of the mammogram report that we're talking about that was first issued by d in calcifications can be present on a mammogram when you have for any number of reasons which is why you usually then go to the next step and say ok why is this here am i seeing everything or am i not i mean it's just good medicine to go to the next step it doesn't mean that dr bauer said ha look at those calcifications that's breast cancer if she really thought that do you think there would be a delay in months of even getting the information to appellant that she needed to do a redo of a mammogram i mean that just doesn't that that just kind of belies common sense and so what we have is we have an inconclusive mammogram that shows calcifications which could mean something or nothing and what we do know is that they don't equal cancer so even if we're talking about in terms of golden rules counsel he conceded that the condition they're talking about on the mammogram is the  are not cancer so if you go back to the condition the preexisting condition that was the basis for the exclusion that even they are the calcifications aren't cancer what they're trying to do or what they did is did not coverage for the treatment of cancer it wasn't denied treatment for the coverage of calcifications that's not what it's you hear now if she had received that report earlier or if someone had told her that she needed to go get a redo earlier before the effective date of the cancer we wouldn't be here i mean we just wouldn't be so the idea that we have i don't why wouldn't you be because i dare say that if she would have received that she would have gotten  is a very cheap policy one hundred sixty eight dollars a month you can't win that cheap and obviously that means that the insurer has to have a pretty you know stiff preexisting clause it's not affordable care act where you can walk in she could have still gotten cobra even i think it's within sixty days why she didn't go back when she gets this result and just say i want my cobra and her testimony have been she didn't want cobra because it costs too much that your last point doesn't make any sense to me that she would have gone back and and gotten insurance with cobra well either she just would have acted differently i mean because we act based on the information we have but that's what i did she win this case and i know is exactly what happened and how it happened in what the language says or doesn't say here we have him but yours was absent at your position so if somebody the nurse that too or the doctor said there's that i recommend something here that in a could be nothing could be something i recommend that you go get another mammogram if she had heard those words same facts we've got here somebody just told her that you're saying then that the insurance company be correct a preexisting condition would  would be a different case i'm not saying exactly that we wouldn't be here which suggests that what i believe that she would have she would have gotten treatment and probably would never have gotten the short term passage you are saying that would mean that she'd know she had been had a diagnostic procedure she had heard that recommendation meaning that you would then conclude diagnosis could include diagnostic procedures now if she would have heard that i recommend you go get a diagnostic procedure because i think that this is suspicious for cancer know or suspicious for malignancy then absolutely under the policy in of itself in terms of i don't think we would be here i just don't think she would have had a short term health insurance policy and i don't think we would have been dealing with  coverage here in terms of her cancer treatment and you would say that but she then stretch the word diagnosis to diagnostic procedure in that context then no it would come under advice section it would come under the receipt of advice before the effective date and that would squarely fall under bargain and so that's that's what we're talking about here all of the cases look cocoa picher all of them all deal with some kind of awareness of the condition for which coverage is denied some kind of awareness either subjective well you had a lump in your breast or you had a headache or you had a cough or objective you were told that you had cancer or you had signs of cancer airco it's preexisting here it is disputed there is no subjective awareness at all undisputed go rule in undisputed that objectively we have no awareness of this in because of that it is a case of first impression in the sense of that worst thing that someone who had no idea that anything was going on is now not going to be able to get coverage under a preexisting condition exclusion that really require some kind of awareness whether objective or subjective per the golden rule counsel said earlier in his argument i'm happy to take any other questions i thank you very much thank you