Friday, 16 December 2011


The Health Care Costs Recovery Act effectively permits the state to steal an individual’s claim.

How so?

The Health Care Costs Recovery Act applies to all personal injury claims other than claims arising out of certain motor vehicle accidents and Workers Compensation claims. While it does not apply to injury claims brought against wrongdoers having basic coverage under the Insurance (Vehicle) Act, claims against auto policies other than ICBCs basic coverage likely will be affected.

It does apply to slip and fall claims including even claims that fall within the jurisdiction of the Provincial Court; that is, where the amount involved is under $25,000.00.

A claim for health care services must be added to every statement of claim where there is a claim "against a person alleged to be a wrongdoer for damages arising from or related to ... personal injury or death". This is not a claim for damages that might have been previously incurred (or to be incurred) by the litigant but instead is a claim for public costs. These ‘public costs" would not in the past have been included in a damage award because they are not costs of the claimant. 

A beneficiary and his or her personal or other legal representative must cooperate fully with the minister and the government and their agents and legal counsel in the government's recovery of past and future costs of health care services under this Act in respect of that beneficiary. Section 11 goes on to impose numerous duties and requirements on the beneficiary including "at the request and expense of the minister and as often as the minister considers necessary, do one or more of the following: (i) "allow a health care practitioner selected by the minister to examine the beneficiary" (ii) "allow any evaluation required by the minister to be performed by a person selected by the minister" and (iii) "provide to the minister" ... "a report, in any form required by the minister concerning "the nature and extent of the beneficiary's injury, "the treatment, current condition and prognosis of the injury" and "any other aspect of the beneficiary's injury or rehabilitation".

The legal proceeding must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court (Section 5). At least 21 days before a beneficiary or his or her legal representative enters into any settlement relating to the personal-injury, the beneficiary or legal representative must give notice to the Minister in the prescribed form and in accordance with the regulations. (Section 12). The claim against a person alleged to be a wrongdoer can not be settled unless the person who would be liable to make payments under the proposed settlement gives to the Minister notice of the proposed terms of settlement and the Minister consents in writing to the proposed settlement (Section 13). 

The government has the right to intervene in the litigation or step in and take over the healthcare services claim portion of the proceeding (Section 6).

There are ameliorating provisions. The government must indemnify a beneficiary or his or her personal or other legal representative for expenses reasonably and necessarily incurred by that person in complying with section 11(1) and (2)(a) and the beneficiary’s claim has priority over the government’s.

How would this affect a slip and fall claim. Lets suppose the Plaintiff is a 78 year old lady who has slipped on a banana peel on the floor of Good Prices Supermarket. A claim for health care services must be added to the Plaintiff’s claim although it is of no benefit to the Plaintiff. The Crown is given notice of this claim made on its behalf and from then on has an interventionist role in the process and as discussed above the case can not be settled unless the Crown approves. The Crown will not approve any settlement unless it gets its two pennies - the cost of any healthcare received by the Plaintiff.

These requirements will necessarily make the whole litigation process much slower and more onerous. This particular third player, i.e government, is notorious for not moving quickly. Files will inevitably linger on someone’s desk in the bureaucracy. Typically government officecrats are reluctant to agree readily to a result; there is a systematic tendency not to say yes until every "t" is crossed and every "i" dotted - two or three times. This will particularly be the case If the plaintiff is elderly and the full extent of public health costs arising out of incident are somewhat indeterminate. Repeated requests will be made for the information and reports referred to in section 11. A year or more could be added to the settlement process.

The Plaintiff and her lawyer are in effect required to make the Crown a client. To some extent the government will be a freeloader since it is unlikely that the government will readily concede that those "expenses reasonably and necessarily incurred by that person in complying with section 11(1) and (2)(a)" will extend to all the additional costs incurred by the Plaintiff as a result of Big Brother’s presence in the law suit. The amount that is required to be paid to the Crown will also have the inevitable effect of lowering the amount paid to the Plaintiff, notwithstanding the stated priority of the Plaintiff’s claim. That is just the way things work.

The Civil Forfeiture Act also steals a victim’s claim but in a different and nastier way - that will be the subject of another blog.

No comments:

Post a Comment