ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, FERRIER AND PITT JJ.
B E T W E E N:
BRIAN DOUGLAS LYTTLE
Appellant
(Respondent on Appeal)
- and -
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN
Respondent
(Appellant on Appeal)
- and -
MEDICAL REVIEW COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Respondent on Appeal)
Joseph J. Colangelo, for the Respondent on Appeal
John W. R. Johnston and Lise Favreau, for the General Manager, the Ontario Health Insurance Plan (Appellant on Appeal)
HEARD: October 25, 2004
MEEHAN J.: (Orally)
1This is an appeal by the General Manager of the Ontario Health Insurance Plan from a decision of the Health Services Appeal and Review Board, dated July 10, 2003, wherein the Board set aside the Direction of the Medical Review Committee of College of Physicians and Surgeons of Ontario, dated August 16, 2001, directing the respondent Doctor, Brian Douglas Lyttle, to reimburse the Ontario Health Insurance Plan for monies he had billed for "General Assessments" in his practice as a paediatric respirologist.
2The General Manager seeks upon this appeal, an order setting aside the decision of the Appeal Tribunal and reinstating the MRC's decision.
3The standard of review in regard to this decision is based upon the principles set out in College of Physicians and Surgeons v. Dr. Q., and in our opinion, is that of reasonableness. In this case, the Appeal Board heard substantial evidence from the respondent doctor, another respirologist, another witness and as well the drafter of the fee schedule and some of its definitions. As well, evidence was called on behalf of the Manager, producing a Dr. Olson, who was familiar with billing matters arising from past experience.
4At the times in question from March 1, 1997 to February 28, 1999, there was a code for general assessments available to respirologists. The definition of "general assessment" for a portion of that time was originally: "includes a full history, an enquiry into and an examination of all parts or systems (and may include a detailed examination of one or more parts or systems)." The second definition in 1998 was: "includes a full history, the elements of which must include a history of the present complaint, former medical history, past medical history and a functional enquiry into all body parts and an examination of all body parts and systems and may include a detailed examination of one or more parts or systems."
5The Medical Review Panel fixed the amounts at the difference between the fee payable for a general assessment and the amount payable for an intermediate assessment for 85% of the matters billed as General Assessment A473 by Dr. Lyttle between the relevant time periods and as well, 5% of the payments made for 5% of the General Assessments A473 billed during that time. We are informed that the amount approximately at issue is approximately $76,000.00.
6The evidence discloses that the Doctor himself could not have billed at the level which was recommended to the Manager by the original Board.
7The material upon which the original Board based its decision was a review of a portion of the Doctor's bills and records. He was dissatisfied with the result and appealed the matter to the Appeal Board. That Board found upon the evidence, that the definition of General Assessment did not require a rare paediatric respiratory specialist to do a full bodily assessment and examination as set out in the definition. The evidence, not surprisingly, disclosed that when he dealt with a full general assessment, it related to the portions of his patient's bodies affected by cystic fibrosis and asthma. Namely, those portions of the body relevant to the respiratory system.
8No issue was taken at that hearing as to other criteria which might affect the billability by a specialist of this nature for a general assessment.
9The Board found that the realities of medical practice, particularly specialty practice encompassed some notion of relevant or affected body parts and systems. In light of those findings, they were unable to conclude that Dr. Lyttle misrepresented the services as general assessments, either deliberately or inadvertently. It also followed in the circumstances that there was no evidence to support a finding that services were not performed to standard with respect to documentation.
10It appears upon the evidence that sometime later the Regulations were amended to allow respirologists to bill for medically specific assessments which required a full history, but only in relation to the complaint and an examination of the particularly affected parts.
11Considering the nature of the Board, the issues before the Board, the conflicting definitions of general assessment between the MRC and the Board, and the evidence particularly heard by the Board, we are of the view that the decision in the circumstances was reasonable and the appeal will be dismissed.
12Costs fixed at $15,000, including disbursements.
MEEHAN J.
FERRIER J.
PITT J.
Date of Reasons for Judgment: October 25, 2004
Date of Release: November 2, 2004
COURT FILE NO.: 484/03
DATE: 20041025
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, FERRIER AND PITT JJ.
B E T W E E N:
BRIAN DOUGLAS LYTTLE
Appellant
(Respondent on Appeal)
- and -
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN
Respondent
(Appellant on Appeal)
- and -
MEDICAL REVIEW COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Respondent on Appeal)
ORAL REASONS FOR JUDGMENT
MEEHAN J.
Date of Reasons for Judgment: October 25, 2004
Date of Release: November 2, 2004