On May 30, 2016 Master McAfee strengthened the arsenal available to insurers in Ontario in the battle against clinic-centered fraud.
In Economical Insurance Company v. Fairview Assessment Centre Inc. et. al. the plaintiff insurer alleged the defendant clinics had submitted false assessment reports and treatment plans under the SABs. The defendant clinics counterclaimed for unpaid services and products provided. The defendant clinics brought a motion for directions, arguing they could not produce personal health information (PHI) of SABS claimants because they did not have the consent of the non-party claimants and because of the privacy provisions in the Personal Health Information Protection Act.
Master McAfee ruled that Part 12 of the OCF-1 Form provides the required consent regardless of the fact that it does not specifically refer to disclosure in the context of civil litigation. She also found PHIPA expressly permits the plaintiff insurer, as recipient of personal health information, to use and disclose the medical documentation without consent. To address the issue of fairness, the disclosure was limited by an order that the documents were not to be filed in public court, subject to a further court order. The documents were to be sealed in a separate envelope and filed directly with the presiding judicial officer, whether they were to be used on a motion, case conference, pre-trial or trial.
Clinic fraud cases turn on the discrepancies between the paper trail and the evidence of SABS claimants. The clinics have the upper hand at the outset of such litigation because of the information in their exclusive possession. Master McAfee’s decision evens the playing field, making it clear that the legislation created to shield personal health information will not be used as a sword in the hands of clinics that are alleged to have engaged in fraud.