May I Presume Dr. Watson is a Better Physician

May I Presume Dr. Watson is a Better Physician

With the rising costs of health care, and the growing demographics of baby boomers, health administrators are always looking for savings. A new and provocative study out of the Indiana University suggests that computer modelling can choose better and less-expensive treatments than the physicians alone, resulting in a 50% reduction in costs and 40% increase in patient outcomes.

  By using a new framework that employs sequential decision-making, the previous single-decision research can be expanded into models that simulate numerous alternative treatment paths out into the future; maintain beliefs about patient health status over time even when measurements are unavailable or uncertain; and continually plan/re-plan as new information becomes available. In other words, it can “think like a doctor.”

 Although Derrick Harris at Digacom states that nobody is suggesting we replace physicians with computers, he does point out other advances in this area:

 

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.

Project Whiplash Ringleader Sent to Prison

Project Whiplash Ringleader Sent to Prison

On February 23, 2012, Toronto Police arrested 37 individuals in connection with an insurance scam. The operation, called Project Whiplash, targeted a group that allegedly staged 77 motor vehicle collisions.

This week the ringleader of the operation, Uthayakanthan Thirunavukkarasu, was sent to prison for 3.5 years and was ordered to pay restitution of $375,000. An estimated $1.2 million flowed through his account for the scam.

At least one of the staged crashes in May 2007 resulted in a brain injury.

Josh Tapper and Wendy Gillis of the Toronto Star explained how the scam worked:

 A recruiter might scope possible participants inside a public space, like a coffee shop, insisting the plan is foolproof, an easy way to earn money. From there, the recruiter acts as coach. He tells people where the accident will occur, where inside the vehicle they should sit and what to tell authorities following the crash…

While police say that numerous collisions allegedly submitted for insurance claims did not actually occur, those that did were also planned carefully. In one collision racket, a scheming driver might stop in front of a laneway and motion an oncoming vehicle to enter traffic; his partner, driving in the opposite lane, then “accidentally” collides with the car… emergency personnel are sometimes called to make the scene more realistic.

With a police investigation underway, the scammers would allegedly forge medical documents claiming injury, often signing on behalf of doctors who never actually assessed the patients. Some of the accused are identified as paralegals, who allegedly filed the insurance claims seeking financial recovery for vehicle damage, physiotherapy, chiropractic work and lost wages.

Insurance companies have decried the practice of staged collisions as one of the reasons for higher premium rates.

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.

Nell Toussaint v. Attorney General of Canada, 2011 FCA 213

This week, the Supreme Court of Canada refused leave to appeal from the Federal Court of Appeal in the case of Nell Toussaint v. Attorney General of Canada. The case considers constitutional arguments against the denial of health coverage to people in Canada contrary to immigration law. Human rights advocates denounced the decision citing Canada’s commitment to international human rights which supports the provision of health care to all people even if they have committed the most heinous of crimes. The case, therefore, provides an interesting look at health law in the immigration sphere.

Facts

Ms. Toussaint had come from Grenada in 1999 on a visitor’s visa and never left. She worked until 2006 when her health began to deteriorate and she could no longer work. In order to receive medical benefits, she needed to legitimize her immigration status. In 2008, she attempted to apply for permanent or temporary residency status. She also applied to have the application fees waived but was denied, and so the applications were never processed. In 2009, she applied for benefits under the Interim Federal Health program, in which Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada under an Order in Council. She was denied coverage because of her illegal immigration status.

She brought an application for judicial review and made the case that a denial of coverage infringed her rights under ss. 7 and 15 of the Charter. The Federal Court dismissed her application, as did the Federal Court of Appeal. As mentioned, the Supreme Court of Canada refused leave to appeal. The crux of the decision in both courts was summarized by Stratas JA. in the FCA decision.

If the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.

This is a summary of the FCA decision.

Order in Council Interpretation

The Order in Council (OIC PC 1957–11/848) reads:

The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of:

(a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and

(b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer,

in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare.

The Director, Program Management and Control, Health Management Branch decided Ms. Toussaint’s initial application for medical coverage. In his decision, he stated:

The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients:

  • Refugee claimants;
  • Resettled Refugees;
  • Persons detained under the Immigration and Refugee Protection Act (IRPA); and,
  • Victims of Trafficking in Persons (VTIPs).

As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved.

Ms. Toussaint argued, first, that “immigrant” in paragraph (a) of the ought to mean “a person who seeks admission to Canada for permanent residence” and that she was in the process of apply for permanent residence. Stratas JA did not accept this interpretation, and instead relied on the definition of an immigrant as set out in the Immigration Act, where

(i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or

(ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.”

Ms. Toussaint did not fulfill this definition. Stratas JA stressed that the OIC was focused on providing coverage for those who were entering Canada for the first time. The applicant was a visitor who had decided to remain in Canada contrary to immigration laws.

Paragraph (b) of the OIC refers to any “person”, rather than immigrant. Stratas JA again agreed with the Federal Court’s decision in interpreting this paragraph.

However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.

The FCA thus agreed with the interpretation of the OIC as excluding Ms. Toussaint from coverage.

Charter Challenges

s. 7 Right to Life and Security of the Person

Ms. Toussaint argued that her exclusion from medical coverage infringed on her right to life and security of the person under s. 7 of the Charter. The court agreed that, despite receiving emergency surgery and life-saving medication without having to pay, Ms. Toussaint was exposed to serious health risks. However, the court did not accept that the Order in Council was the operative cause of the injury to her rights to life and security of the person. (See TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114) Rather, the court suggested that the applicant’s own conduct endangered her life, and that had she acted legally and obtained proper immigration status, she would have been entitled to coverage.

Principles of Fundamental Justice

Ms. Toussaint also argued that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.” Stratas JA rejected this argument as well. In doing so, he cited the broad finding in Chaoulli by McLachlin CJC that the Charter does not confer a freestanding constitutional right to health care (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para. 104). Also,

The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 169 at para. 36.)

The court also did not accept an argument that the Order in Council’s exclusion was arbitrary. (at para. 83) Stratas JA took these findings as support that there is no recognized principle to fundamental justice under s. 7 that the applicant receive medical care.

s. 15 Discrimination Under Enumerated and Analogous Grounds

Stratas JA rejected the argument that the applicant had been denied coverage was contrary to s. 15. With regards to discrimination on analogous grounds, he commented

“Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. (at para. 99)

A final policy comment was made by the court.

If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Ontario Expected to Slash Physician Funding

When an Ontario Medical Association (OMA) agreement with the Province of Ontario expires on March 31, 2012, the Province is expected to reduce physician compensation to address growing costs.

Ontario currently spends approximately $10 billion a year on the Province’s 24,000 physicians, and health funding of $47 billion a year typically represents the largest line item on provincial budgets at 42 per cent .

The cuts may come in the form of wage freezes. The previous agreement had included a 5% global increase to the OHIP Schedule of Benefits on October 1, 2009, a 3% increase on October 1, 2010, and a 4.25% increase on September 1, 2011.

Ontario’s 2010 budget prominently featured wage restraint measures, including a three-year MPP salary freeze and two-year freezes for non-bargained employees. No funding was allocated for fiscal increases in any future collective agreements. The Ontario Public Service had already been reduced by five per cent in the three years before the budget.

Adam Radwanski of The Globe suggests that the Province could look for savings in the following areas:

  • increased emphasis on Family Health Teams instead of Fee For Service
  • tighter guidelines for referrals and prescription refills
  • reduced fees for some costly specialist procedures
  • greater requirements for hospital duties
  • remote physician services via telephone and Internet, and electronic health records

The 2010-2012 agreement with the OMA allocated $340 million for new programs that will not likely be reproduced in the next agreement.  The previous agreement did include funds for hiring an additional 500 licensed nurses to assist physicians in their offices through collaobrative health strategies like Family Health Teams

Depending on the success of these programs, greater funding for allied health staff could be perceived as a way to keep physician costs down.  Either way, physician funding is quickly being perceived as one of the more ineffeicient ways to deliver primary care.

 The Drummond Report, expected shortly, will likely frame the discussion further, especially highlighting the role of physicians with health institutions like hospitals. 

OMA Contract With MOHLTC – March 31, 2012

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.

Neurontin® (Gabapentin) Certification Disseminated

The London, Ontario law firm, Siskinds LLP, disseminated the Notice of Certification in Goodridge et al. v. Pfizer Canada Inc. et al. today for the class action over Neurontin® (Gabapentin), the  GABA analogue used for epilepsy and neuropathic pain.  The claim alleges that the use of Neurontin increases the risk of suicidal behaviour.

The Plaintiffs were successful in having the action certified on February 18, 2010.  On certification, the Defendants were succesful in part in striking portions of the statement of claim, with leave granted to amend.   The basis of the claim was described by Justice Perell,

[5]               There are five aspects to the claims being brought against the two Pfizer companies.

First, the Plaintiffs allege that the Defendants were negligent and caused harm to Neurontin consumers by falsely and wrongfully promoting Neurontin for “off-label” uses, which is to say for uses for which the drug has not received Canadian regulatory approval.

Second, it is alleged that the Defendants were negligent and caused harm to Neurontin consumers by designing and distributing a drug that was useless for its off-label uses.

Third, it is alleged that the Defendants were negligent and caused harm to Neurontin consumers by designing and distributing a drug that had a harmful side effect; namely, propensity for suicidal behaviour.

Fourth, it is alleged that the Defendants are liable not only for the harm caused to consumers of Neurontin but they are also liable for the harm caused to consumers of generic gabapentin that was manufactured and distributed by the Defendants’ competitors.

Five, it is alleged that the family members of the Neurontin consumers and the generic gabapentin consumers have derivative claims under the Family Law Act or similar provincial statutory provisions.

Justice Perell held that the certification would not include claims about wrongfully and falsely promoting Neurontin for off-label purposes.  Although he agreed that it was reasonably foreseeable that harm would be caused by competitors manufacturing the drug, he did not find a duty of care due to lack of proximity and policy reasons under the Anns/Cooper test,

[98]           Would it be fair to make the Defendants, as innovators, liable simply for releasing an idea that is copied? I think not, because once again this would be to impose strict liability and because the harm in releasing the idea is caused by releasing the idea without appropriate warnings about how the associated product may be used, but the innovator is not in a position to give any warnings about the uses being made by consumers of a copied version of the innovator’s product. A drug innovator cannot issue warnings about the hazards of a drug manufactured and sold by another pharmaceutical company, particularly when the hazards may be associated with off-label uses. Although the drug innovator can control the manufacture of its own product, monitor for adverse reactions to its product and give warnings about its own product, the innovator is not in a position to stop the generic manufacturer from releasing the generic drug or to stop physicians from prescribing the generic drug for off label uses. This conduct is not the innovator’s conduct, and, in my opinion, it would be unfair to impose a duty of care on the innovator for another’s conduct when the innovator cannot control, qualify, or stop that conduct. In my opinion, it would not be fair or just to make the innovator liable for failing to do something that should and can only be done by others.

[99]           Put differently, normally, an innovator of a prescription drug may discharge its duty of care by giving a warning about the risks associated with its own drug, but imposing a duty of care on the innovator for simply releasing the idea of the drug into the stream of commerce is to impose strict liability on the innovator and also to deny the innovator the defence of having given an adequate warning to a learned intermediary. In my opinion, such an imposition of liability would be unfair. 

[102]      In my opinion, in the case at bar about the duty of care between a drug innovator and the consumer of a drug manufactured by another pharmaceutical company, there are two public policy factors that ought to negative the scope of any duty of care and the class of persons to whom the duty is owed by the innovator of a drug. First, the imposition of a duty of care on the innovator to the competitor’s consumer would be to impose strict liability for defective products and to make an innovator an insurer against all harm from its innovation, which would be a radical change in Canadian law and one for the legislature and not the courts to make. Second, the imposition of liability on the innovator would discourage medical advances and innovative technologies that could be beneficial to society.

The class was certified subject to a number of changes, including a removal of the generic  gabapentin and a narrowing of the scope.  A copy of the Amended Statement of Claim is available here, and Notice of Certification follows.

Neurontin – Notice of Certification

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.

Romanow Foresees End of National Health-Care System

Roy Romanow, who headed the 2002 Healthcare Commission, interprets the new funding model announced by the Federal government as an ominous sign for the Canadian health care system. 

He claims that the Prime Minister has delegated more responsibility to the provinces out of a deliberate move to weaken the public health care system, which would open to doors to greater for-profit privatization,

To say, ‘Goodbye and good luck’ could be the beginning of the end of a reformed modern-day functioning health care system.

If that argument is advanced, we have a prescription for a patchwork-quilt series of programs by the provincial governments based on their fiscal capacity.

It will mean more privatization in more provinces, or some combination of private and public. It will be a very much weakened fabric of national unity without Mr. Harper’s direct involvement.

The effects of these changes could be so far reaching as to threaten national unity and Canadian identity,

This is a very big turning point in the making of the federation…

There’s a question here of federalism and Canadian citizenship. Do we want to have the possibility of disparate regions in the country?

This is a question now of how you build the country. It’s federalism. It’s Canadian unity. And programs such as medicare define what it means to be a Canadian.

The changes were made despite the promises in the Conservative Party of Canada’s 2011 platform to support universal health care and work collaboratively with the provinces. 

The Premiers will be meeting in Victoria next week to discuss health care further.

CPC on Health Accord

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.