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The Health Care Costs Recovery Act, [SBC 2008] Chapter
27 (the "Act"), came into force on April 1, 2009. The Act
allows the Ministry of Health Services to recover all health
care costs paid by government related agencies, such as MSP,
on behalf of a beneficiary (a plaintiff), in respect of an injury
that was caused by the wrongful act of a third party (a defendant),
but only where that wrongdoer was not insured by the Insurance
Corporation of British Columbia ("ICBC") at the time.
The Act obliges plaintiffs, defendants and their respective
counsel in the action to take special steps in the course of
initiating, litigating and settling personal injury claims.
What claims are included: The obligations under the
Act arise where there is any negligence claim involving
health care costs, including but not limited to, slip and falls,
boating, air and rail accidents, swimming, diving, skiing, explosion,
fire, falling objects, motor vehicle accidents involving non-ICBC
insured defendants and class actions.
| What claims are excluded:
The parties to an action are not required to make a
claim on behalf of the province for any costs related
to heath care services arising out of a wrongdoer's
use or operation of a motor vehicle, if the wrongdoer
was "covered by the Plan", as defined in the British
Columbia Insurance (Vehicle) Act: |
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"plan" means the plan of universal
compulsory vehicle insurance referred to in section
2 and operated by the corporation under Part 1 and the
regulations under that Part. |
| Also, there is no obligation
to make a claim for heath care costs arising from injuries
or illnesses that fall under the jurisdiction of WorkSafeBC
or under the terms of the Tobacco Health Care Costs
Recovery Act. |
The Breach: A special circumstance arises where a
defendant is insured by ICBC, but breaches the terms of his
or her insurance at the time of the accident. Currently, the
Ministry has taken the position that both the plaintiff and
defendant are obligated to notify the Ministry of any action
involving a personal injury claim where the defendant is in
breach.
Do the obligations apply when there is no action:
In short, yes. If the parties come to a settlement without commencing
an action, the obligations arising under the Act still
apply. The Ministry's right of subrogation is maintained. The
Act provides that no settlement is final or binding without
Ministry approval and, as such, any settlement reached without
appropriate notice to the Ministry is void.
| Obligations: The
obligations imposed on the plaintiff in a personal injury
claim, and on the plaintiff's legal representatives,
are relatively straightforward: |
| 1. |
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To include a health care services claim
for past and future health care costs in any legal proceeding. |
| 2. |
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To notify the Ministry of Health, in
writing and in the prescribed form, of any legal proceeding
within 21 days of commencement, and to include a copy
of the originating documents with that notice. |
| 3. |
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To not settle a claim unless the Ministry
is notified of the settlement terms. |
| 4. |
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For the defendant, there is an additional
requirement in that the Ministry must give written consent
to the settlement. A settlement to which the Ministry
has not consented is void. |
Pre-April 1, 2009 Actions: The obligations arising
under the Act apply in relation to any personal injury,
whether the action was commenced before or after the Act
came into force (April 1, 2009); however, the requirements of
sections 3 [obligation to claim], 4 [notice requirement]
and 5 [final disposition] do not apply in relation
to legal proceedings commenced before April 1, 2009. The requirement
for Ministry approval of the settlement, however, applies.
Settlements: Section 12 of the Act requires
both the plaintiff and defendant to provide written notice to
the Ministry, in the prescribed form, of entering into a proposed
settlement at least 21 days prior to entering into it. Failure
to provide notice gives rise to consequences. Specifically,
subsection 13(5) of the Act provides that the government
has the right to recover, from the person required to give that
notice (i.e., the plaintiff and/or the defendant), the total
cost of past and future health care services related to the
personal injury, as a debt due from that person to the government.
The other obligations, to obtain the Minister's written consent
to the settlement terms and the actual payment to the Ministry
of the settlement funds, fall solely on the defendant.
Final Dispositions: A health care services claim may
not be discontinued unless the Ministry has consented and the
plaintiff and defendant have provided the court with adequate
proof of such consent. A court may not strike out a health care
services claim unless the Minister has received notice and had
an opportunity to appear and make representations. Finally,
a court may not make a final order in relation to a claim unless
the Ministry has received notice that a final order is pending,
again putting a notice requirement on the parties.
Ministry Rights: The Act creates a right of
the Ministry to subrogate to the plaintiff's right to recover
past and future health care costs. The Ministry may commence
a proceeding for health care costs in its own name or in the
name of the plaintiff, with or without that plaintiff's consent.
Alternatively, the Ministry may intervene or, on written notice
to the plaintiff, assume conduct of the health care services
claim portion of the proceeding. The Ministry now also has a
separate right of appeal.
Scope: The Act covers not only past heath care
service costs, but future costs. "Future cost of health care
services" means the present value of the estimated total cost
of all health care services that are provided, or are reasonably
expected to be provided, to a beneficiary as a direct or indirect
result of a personal injury described in section 2 after the
date of settlement or, if there is no settlement, after the
first day of trial.
| Health Care Costs:
The enumerated costs recoverable under the Act
include: |
| (a) |
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benefits as defined in the
Hospital Insurance Act, which covers medical
care provided at hospitals; |
| (b) |
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benefits as defined in the
Medicare Protection Act; |
| (c) |
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payments made by the government
under the Continuing Care Act, which covers long-term
and facility based care needs; |
| (d) |
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expenditures for emergency
health services provided in respect of a beneficiary
under the Emergency and Health Services Act,
which covers costs such as ambulances, the fees are
set out in the Act; and |
| (e) |
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any other act or thing,
including, without limitation, the provision of any
health care treatment, aid, assistance or service or
any drug, device or similar matter associated with personal
injury, |
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I. |
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for which a payment or expenditure is
or may be made, whether directly or through one or more
agents or intermediaries, by the government in respect
of a beneficiary, and |
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II. |
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that is designated by regulation under
subsection 25(2)(b) [regulations]. |
| The regulations
provide the following cost items are also recoverable: |
| (a) |
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the following services provided
by the Government of Children and Family Development
or the Community Living Authority: |
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I. |
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At Home Program Medical and Respite
Benefits; |
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II. |
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Supported Child Development; |
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III. |
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Nursing Support Services; |
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IV. |
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Therapies; |
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V. |
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Family support; |
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VI. |
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Professional support; |
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VII. |
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Specialized residential services; |
| (b) |
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the following professional
services paid for by a regional health board: |
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I. |
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Nursing; |
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II. |
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Social work; |
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III. |
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Registered dieticians; |
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IV. |
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Occupational therapy; |
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V. |
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Speech pathology; |
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VI. |
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Physical therapy; |
| (c) |
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prescription drugs that
are funded under the PharmaCare program operated by
the Government of Health Services. |
Case law: MacEachern v. Rennie, 2009
BCSC 652
Facts: By notice of motion dated April 21, 2009, the
plaintiff sought leave to amend its statement of claim in order
to add a claim under s. 2 of the Health Care Costs Recovery
Act, S.B.C. 2008 c. 27 (the "Act"). In this case
the total amount of the claim under s. 2 of the Act was
$875,457.84. The defendants opposed the application to amend
the statement of claim.
Law: The transition provisions in s. 24 of the
Act stipulated the requirement in s. 3 did not apply to
legal proceedings commenced before the Act came into
force on April 1, 2009. Accordingly, although the plaintiff
in this case had voluntarily chosen to apply to the court for
leave to amend her statement of claim in order to include a
claim for the past cost of health care services, she was not
required to do so under the Act since the proceedings
were commenced before the Act came into force.
Holding: Regardless of whether the limitation period
for the government to bring a claim under s. 8(1) had expired
or not, the court was satisfied that the plaintiff's application
to amend the statement of claim to bring a claim under s. 2
of the Act should be dismissed on the ground that the
application was brought after the start of the trial near the
end of the plaintiff's case, and to grant the application at
this late stage would unfairly disrupt the trial and would significantly
prejudice the defendants.
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