The Estate of Ruggiero v. The General Manager, The Ontario Health Insurance Plan [Indexed as: Ruggiero Estate v. Ontario Health Insurance Plan (General Manager)]
78 O.R. (3d) 28
[2005] O.J. No. 4276
Court File No. 672/03
Ontario Superior Court of Justice
Divisional Court,
Aston S.J., Greer and Swinton JJ.
October 5, 2005
Insurance -- Health insurance -- Insured services -- Appellant diagnosed with ovarian cancer and travelling to Germany for chemotherapy -- Appellant suffering perforated bowel which required immediate surgical attention while in Germany -- Health Services Appeal and Review Board finding that treatment of bowel perforation did not come within "insured services" as bowel perforation was not "unexpected" in view of underlying condition of ovarian cancer -- Board's decision not unreasonable.
R was diagnosed with breast cancer and ovarian cancer and went to Germany for chemotherapy. While she was in Germany, she suffered a perforated bowel which required immediate surgical attention. She sought reimbursement from the Ontario Health Insurance Plan ("OHIP") for the cost of the hospitalization and treatment of the bowel perforations. The General Manager of OHIP declined to reimburse her because the health services in Germany were not "insured services". The Health Services Appeal and Review Board affirmed that decision. R's estate appealed.
Held, the appeal should be dismissed.
"Insured services" are defined in s. 28.3 of Regulation 552, R.R.O. 1990 as medically necessary services rendered outside Canada in connection with an illness, disease, condition or injury that is acute and unexpected, arose outside Canada and required immediate treatment. There was evidence before the Board that intestinal perforations are to be expected when a patient suffers from ovarian cancer. The Board concluded that the condition in question was not "unexpected". The standard of review of the Board's decision was reasonableness. The Board rested its decision not on the subjective knowledge of R or her family, but on the objective perspective of whether the illness or condition was unexpected. The weight of the evidence favoured a finding that the cancer mass was sufficiently progressed by the time that R was in Germany that intestinal perforations could be expected. The Board's decision was not unreasonable.
APPEAL from the decision of the Health Services Appeal and Review Board dismissing an appeal from the decision of the General Manager of the Ontario Health Insurance Plan.
Cases referred to Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1 Statutes referred to Health Insurance Act, R.S.O. 1990, c. H.6, ss. 11.2 [as am.], 24(1) [as am.] Rules and regulations referred to R.R.O. 1990, Reg. 552, s. 28.3 [as am.] [page29 ]
Avril Hasselfield, for appellant. Jennifer Hall and Miriam Young, for respondent. Melanie Hubbard, for Health Services Appeal and Review Board.
The judgment of the court was delivered by
[1] SWINTON J.:-- The Estate of Rosa Ruggiero appeals from a decision of the Health Services Appeal and Review Board (the "Board") dated September 9, 2003, which dismissed an appeal from a decision of the General Manager of the Ontario Health Insurance Plan dated June 10, 1996 denying payment for out-of- country medical treatment.
Factual Background
[2] Rosa Ruggiero was diagnosed with breast cancer and ovarian cancer in 1993. She underwent surgery and chemotherapy, but her condition deteriorated. In or around May 1995, her husband was advised that she had about six months to a year to live.
[3] In September 1995, Mrs. Ruggiero went to Germany to receive perfusion chemotherapy, also called "regional chemotherapy treatment", in the hope of prolonging and improving her life. This treatment is no longer offered in Canada, although her sister had had it in Ontario.
[4] On September 21, 1995, Mrs. Ruggiero was admitted to Asklepios Clinic in Wiesbaden, Germany, and she received the first stage of the treatment. She intended to return home on October 8, 1995, as her daughter's wedding was scheduled for October 14 in Ontario. However, on October 7, her temperature rose significantly, and she was diagnosed with a perforated bowel, which required immediate surgical attention. Subsequent perforations required further hospitalization and treatment in Germany. Ultimately, her husband arranged for her to fly home on May 29, 1996. She died in September of that year.
[5] Mrs. Ruggiero sought reimbursement from the Ontario Health Insurance Plan ("OHIP") for the cost of the hospitalization and treatment of the bowel perforations and complications in Germany. The General Manager of OHIP declined to reimburse her because the health services in Germany were not "insured services". This led to the appeal to the Health Services Appeal and Review Board by the Estate of Rosa Ruggiero. [page30]
The Legislation
[6] The purpose of the Ontario Health Insurance Plan is to provide insurance against the costs of "insured services" for residents of Ontario (Health Insurance Act, R.S.O. 1990, c. H.6, s. 11). "Insured services" are defined in s. 11.2 to be the prescribed services of hospitals and health facilities, prescribed medically necessary services and prescribed health care services rendered by prescribed practitioners.
[7] Regulation 552, R.R.O. 1990 is the regulation which sets out the services insured under the plan. Section 28.3, which deals with in-patient services provided outside Canada, reads:
28.3 In-patient services rendered outside Canada in an eligible hospital or health facility are prescribed as insured services if,
(a) the services are medically necessary;
(b) it is medically necessary that the services be provided on an in-patient basis;
(c) in Ontario, the insured person would ordinarily have been admitted as an in-patient of a public hospital to receive the services; and
(d) the services are rendered in connection with an illness, disease, condition or injury that,
(i) is acute and unexpected,
(ii) arose outside Canada, and
(iii) requires immediate treatment.
The Board's Decision
[8] The Board considered documentary evidence from the German physician, Dr. Aigner, and heard testimony from Mr. Ruggiero and Dr. Reingold, a medical oncologist who had treated Mrs. Ruggiero before she left for Germany. In its reasons, the Board stated,
Based on the evidence, the Appeal Board observes that the parties do not dispute that the tumors in the Appellant's abdomen were growing in 1995. The Appeal Board finds that the parties agree on the likelihood of bowel obstruction formed by growing cancer masses. The Appeal Board accepts that the goal of the perfusion treatment was to reduce the size of the tumor mass and therefore to reduce the pressure on the bowels.
The evidence is clear that the Appellant had growing tumors in her abdomen during 1995 and that upon admission to the Asklepios Clinic, she had observable peritoneum carcinomas. The Appeal Board is persuaded by Dr. Reingold's evidence that with the Appellant's cancer history, the peritoneum had many active cancer growths that would continue to grow and eventually [page31 ]perforate the tissue they surrounded including the bowels. The Appeal Board is further persuaded by Dr. Reingold's evidence that the treatment itself was not necessarily likely to create bowel perforations. Despite the evidence of tumor necrosis following the perfusion therapy, the weight of the evidence is that cancer mass growth was sufficiently progressed by the time the Appellant was seen in Germany that intestinal perforations could be expected. The Appeal Board finds that intestinal perforations could have been expected in the natural course for someone with the Appellant's cancer history.
The Board also concluded that the later complications were also to be expected from the underlying condition of ovarian cancer. Therefore, the Board held that the initial intestinal perforations and complications were in connection with an illness, disease, condition or injury that was not unexpected, and the appeal was denied.
Standard of Review
[9] The appellant argues that the standard of review is correctness, while the respondent argues that it is reasonableness.
[10] In order to determine the standard of review, a court is to apply the pragmatic and functional approach, which requires consideration of four factors: whether there is a privative clause, the expertise of the tribunal relative to that of the reviewing court, the purpose of the legislation and the provision in question, and the nature of the question at issue (Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 26).
[11] The Health Insurance Act does not contain a privative clause, and a broad right of appeal exists to this court (s. 24(1)), which suggests less deference.
[12] The Board hears appeals under the Health Insurance Act and 13 other health-related statutes. Its role is primarily adjudicative and does not include a policy development role, which also suggests less deference.
[13] However, the problem before the Board raised a question of mixed fact and law. Indeed, in this case, the question was more fact-intensive than law-intensive. In order to determine whether the illness or condition was "unexpected", the Board had to assess the evidence and make findings of credibility. It had the benefit of hearing the direct examination and cross- examination of Dr. Reingold and Mr. Ruggiero. Therefore, considerable deference is owed to the Board in this case, and the proper standard of review is reasonableness.
Analysis
[14] Determining whether an illness or condition is "unexpected" turns on an examination of the facts of a particular case. [page32] It requires an examination of both the likelihood of the illness or condition occurring and the likely timing of the occurrence.
[15] Both Dr. Aigner and Dr. Reingold were of the opinion that bowel obstruction was likely to occur with advanced ovarian cancer. Dr. Aigner, for example, stated in a letter that Mr. Ruggiero, not being a doctor, would not know that "the end point of such a medical history is a multilocular obstruction of the bowel". The letter also states that when Mrs. Ruggiero arrived in Germany, she had "subileus (subtotal bowel obstruction due to her bulky tumors) but nevertheless sufficient bowel motion not requiring imminent surgery". Dr. Aigner was of the opinion that when she arrived in Germany, "she most evidently was in a clinical stage of disease where complete bowel obstruction on multiple sites was most likely to occur within four to eight weeks", although he described the sudden tumor breakdown with necrosis and bowel perforation as a "by no means foreseeable event".
[16] Dr. Reingold had treated Mrs. Ruggiero prior to her departure from Canada, and he commented on his treatment and the documents from Dr. Aigner. The following exchange between Dr. Reingold and counsel captures his evidence:
Q. At this stage, as you read the notes from the stage of Mrs. Ruggiero's status, in the fall of 1995, is there anything in the notes from the German facility that would lead you to believe that the illness is developing other than in a normal or routine or predictable fashion at this time?
A. Unfortunately, everything is predictable, I mean, I would expect this.
You can argue that if you did nothing, she'd probably, she may have a better quality of life. I mean, you can only surmise that. But everything we're seeing here I would have expected.
If you said to me when I last saw them on the 29th of August, where are we going? I would have told you this is where we're going. I wouldn't have known the date for it, obviously, but it was unfortunately predictable, as it is predictable today and probably for the next 50 years for everybody else, until we find something new to help these patients, unfortunately.
(Transcript, pp. 132-33)
[17] Dr. Reingold also testified that he would have warned the Ruggieros that it was a real risk to leave the country at that time (Transcript, p. 137). Again at pp. 161-62 of the Transcript, there was the following exchange during cross- examination.
Q. And would you agree with me that the collapse, which seemed to be a very quick onset ...
A. I don't agree with that, but ... [page33 ]
Q. The perforation of the bowel?
A. This is not an acute process, this is a chronic process, so you're mistaken.
Q. Right. Well then would you have expected that, in August, that this could occur in September?
A. I expect everything. Everything that happened to her was predictable, expected, no matter what you tell me, and I've stated that before.
Q. So when you say that at the end of August when you met with her and Frank and discussed it, you expected this would collapse so quickly?
A. I'm not surprised at all by it.
Q. Notwithstanding you're not surprised, did you . . .
A. This is not a surprise, it was predictable. Not the day, the day is not predictable, it can happen the day after I saw her, it can happen three months after I saw her, and there is no predictability in terms of the day. But the process is predictable.
[18] The standard of reasonableness requires the reviewing court to ask, "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at para. 47).
[19] The appellant argued that neither Mr. nor Mrs. Ruggiero expected that Mrs. Ruggiero would experience any bowel problems while she was in Germany, as she had not been informed that there was a risk of bowel obstruction. The Board rested its decision not on the subjective knowledge of the patient, but on the objective perspective of whether the illness or condition was unexpected.
[20] The Board weighed the medical evidence and opinions presented by both sides and found that the weight of the evidence favoured a finding that the cancer mass was sufficiently progressed by the time that Mrs. Ruggiero was in Germany that intestinal perforations could be expected. Viewed as a whole, the Board's decision is supported by tenable reasons that are grounded in the evidentiary record.
[21] Therefore, the Board's decision was not unreasonable, and the appeal is dismissed. If the parties cannot agree on costs, the respondent may make written submissions within 21 days of the release of this decision, and the appellant may make responding submissions within ten days thereafter.
Appeal dismissed. [page34]