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Lyttle vs. OHIP
For the last three years, the OMA has supported
London pediatric respirologist Brian Lyttle’s
struggle with the medical audit system. On
August 16, 2001, the Medical Review Committee
(MRC) directed Dr. Lyttle to repay OHIP the difference
between the payment for the General Assessment
and Intermediate Assessment codes for 89 per
cent of his GA billings during the two-year period
under review.
On July 10, 2003, the Health Services
Appeal and Review Board (HSARB)
granted Dr. Lyttle’s appeal and
reversed the MRC’s direction.
The HSARB ordered the Ministry
of Health and Long-Term Care to
repay Dr. Lyttle the monies that the
Ministry collected after the MRC
decision. The Ministry appealed to
Divisional Court.
On October 25, 2004, Justices
Meehan, Ferrier and Pitt of the
Divisional Court heard the Ministry’s
appeal.
The justices unanimously held the
HSARB decision was “reasonable”
and dismissed the appeal with costs
payable by the Ministry.
The Court dismissed the appeal
without even hearing from Dr.
Lyttle’s counsel.
The time period for the Ministry to
move for leave to appeal the decision
to the Court of Appeal has now
expired.
Accordingly, it appears that the
Lyttle matter is now concluded and
the Divisional Court’s decision may
be viewed as being a precedent for
the interpretation of the Schedule of
Benefits.
The HSARB held that the Schedule
of Benefits must be interpreted “contextually.”
It found the “very literal
interpretation [taken by the General
Manager of OHIP] problematic when
viewed in the context of a specialty
practice such as Dr. Lyttle’s and are of
the view that the result of such an
interpretation cannot be supported
on the evidence.”
The HSARB accepted that the
interpretation of the General Assessment
code urged by the General
Manager would result in, “most
specialists would for all practical
purposes never be able to bill for a
GA, even though the Schedule provided
separate and specific GA
billing codes for each of the listed
specialist groups.
“We are not persuaded that the
Lieutenant Governor in Council
intended to include in the Schedule
of Benefits 12 billing codes which
could never be billed by physicians
in the 12 listed specialty groups.”
The HSARB concluded: “We
have reviewed all of the evidence
and find that it does not support
the very narrow and literal interpretation
urged for by the Respondents.
“The evidence on the history of the
Schedule of Benefits, the development
and interpretation of the GA
code, the nature and scope of Dr.
Lyttle’s practice (and specialty practice
more generally) and the billing
code options available during the relevant
time period all suggest that the
descriptor should be read in a manner that reflects the realities of medical
practice ...
“We are of the view that the meaning
to be accorded to the words ‘all
body parts and systems’ must be consistent
with common sense and avoid
absurdity when viewed in the context
of the realities of medical (especially
specialty) practice.
“In our view, the broader and
more contextual interpretation proposed
by counsel for the Appellant
leads to a result that is more acceptable
and appropriate than the very
literal interpretation suggested by
the [Ministry], and can be better justified
in terms of its purpose, plausibility,
efficacy and acceptability ... we
cannot accept the very narrow and
literal interpretation proposed by the
[Ministry] and prefer an interpretation
that better reflects the realities of
medical practice ...
“We are of the view that the definition
should be read in a manner
that reflects the realities of medical
(particularly specialty) practice by
encompassing some notion of relevant
or affected body parts and systems.”
The HSARB and Divisional Court decisions in Lyttle were an important part of
the OMA’s recent written and oral submissions to Justice Peter Cory, who is
conducting a review of the Ontario medical audit process (see “Ontario
medical audit process fundamentally flawed — sweeping changes required,”
November 2004 OMR, pp. 17-19).
The OMA urged Justice Cory to
recommend in his report that the
“contextual” interpretation approach
to the Schedule of Benefits be codified
in amendments to the Health
Insurance Act.
On November 16, Dr. Lyttle forwarded a letter to the OMA expressing his thanks
to the Association for its support. A copy of the letter
appears on page 26.
The HSARB decision is posted online for member reference at: (http://www.hsarb.on.ca/english/decisions/0147_Lyttle_FDR.pdf).