My personal injury lawyer says that part of my settlement must go to OHIP because they have a subrogated interest claim, what does this mean?
Ottawa car accident and personal injury lawyers provide explanation of your rights and interests when it comes to OHIP’s subrogated interest claim.
When you receive indemnity (meaning compensation) as an injured person in Ontario, the law recognizes that you should be fully indemnified (meaning receive full compensation). It also recognizes that third parties, such as OHIP, should be reimbursed for their expense associated with your care.
Associated with the legal principle of “indemnity” is the reciprocal principle of “subrogation”. In such cases, a third party such as OHIP (meaning the Ministry of Health and Long Term Care) has a right by statute under the Ontario Heath Insurance Act to recover from the injured person what they paid to provide care services to the injured person. The injured person in turn recovers the amount from the person who caused them injury. The principle of subrogation exists in part because, in general, the law recognizes that the injured party is not entitled to “double recovery.” An injured person only pays this if it receives it from the wrongdoer. However, the injured person and their injury lawyers must advance a claim for OHIP at the same time it advances a claim for the injured person.
How does it work? In practice, as long as there is no conflict of interest, your personal injury lawyer will also be hired by the Ministry of Health and Long Term Care to advance a claim for reimbursement of the expenses OHIP paid to care for you as a result of your injuries. When the case settles, the wrongdoer (or their insurer), will provide compensation to you and also have to pay OHIP’s subrogated interest claim.
What does the Ministry say about their subrogated interest claim?
This is what the Ministry of Health and Long Term Care has to say about their subrogation interest.
“Personal Injury Accidents: Recovering Health Care Costs
If a person is injured in an accident caused by someone else’s negligence or wrongdoing, and makes a claim for damages or initiates a lawsuit, the Ministry of Health and Long-Term Care can recover its costs for health care and treatment.
Each year, the ministry recovers over $12 million from insurance companies through subrogation. Subrogation is a legal term unique to Insurance Law. It means “the right to recover costs for an injury caused by the fault or negligence of another person.” The ministry’s right to subrogation is enforced through legislation.
By being familiar with the principle of subrogation, those representing an injured person can ensure costs for appropriate health care and treatment are included in claims for damages.
Providers of health care services should read the fact sheet, Who Pays for Health Care: Injuries from Motor Vehicle Accidents to ensure costs for services are billed appropriately.
The most common examples of personal injury accidents for which the ministry recovers health care and treatment costs are :
- slip and falls
- boating, air and rail accidents
- product liability or manufacturing defects
- medical malpractice or professional negligence
- dog bites
- municipal liability
- some motor vehicle accidents
- class actions.
The ministry is notified by the injured person, their legal counsel or by the at-fault party’s liability insurer. The ministry’s right of recovery applies to any incident regardless of the location. This includes other provinces, and foreign jurisdictions that allow subrogation or other reimbursement rights.
The ministry can recover costs for :
OHIP insured services including :
hospital services including in/out patient, acute and chronic care;
air ambulance; out-of-country/out-of-province medical and hospital services;
Extended care services typically arranged or provided through Community Care Access Centres (CCACs) in the home, school or community including :
professional services such as nursing, physiotherapy, occupational therapy, speech-language pathology, social work or nutritional services.
non-professional services :
personal support including assistance with personal hygiene and homemaking services such as house cleaning, laundry, banking, shopping, preparing meals;
attendant care services such as assistance with personal hygiene and activities for daily living;
long-term care accommodation and services in nursing homes, charitable homes and homes for the aged (accommodation costs cannot be claimed in other facilities such as supportive housing).
community support services such as meals and transportation, caregiver support, adult day programs, home maintenance and repair, social or recreational services.
Recovering Past and Future Health Care Costs
The ministry recovers the cost from insurance companies (or at-fault parties) for all OHIP insured health services provided up to the time of settlement or judgment. It also claims the costs for future insured health care services that an injured person may need.
Where an injured person has been assessed for long-term care services and benefits, funding is provided on a bridge or interim basis until settlement funds have been received. The ministry’s claim includes these costs, and the subrogation unit endeavours to contact CCAC or other funding agencies upon settlement.
Subrogation does not apply for future non-professional health care services or benefits (such as attendant care, personal support and homemaking). The injured person must include a claim for the cost of these services in his or her personal claim for damages. Once settlement funds are received, he or she can then purchase these services directly. (source: www.health.gov.on.ca).”
OHIP at the moment (February, 2012) does not claim subrogated interest claims in cases of injured persons who are injured due to motor vehicle accidents in Ontario.
Health Insurance Act of Ontario
The relevant section of the Health Insurance Act is section 31 which reads as follows:
Subrogated claim included in action
31. (1) Any person who commences an action to recover for loss or damages arising out of the negligence or other wrongful act of a third party, to which the injury or disability in respect of which insured services have been provided is related shall, unless otherwise advised in writing by the General Manager, include a claim on behalf of the Plan for the cost of the insured services. R.S.O. 1990, c. H.6, s. 31 (1).
Recovery paid to Ontario
31. (2) Where a person recovers a sum in respect of the cost of insured services, the person shall forthwith pay the sum recovered to the Minister of Finance. R.S.O. 1990, c. H.6, s. 31 (2); 2006, c. 19, Sched. L, s. 11 (5).