The Divisional Court has ruled that Ontario Health Insurance’s decision not to reimburse the family of a deceased Ontario man who sought treatment in Texas was reasonable.
The Health Services Appeal and Review Board refused to provide $320,000 in compensation to the estate of William Dykie, who died of pancreatic cancer in 2012, saying he did not “face immediate risk of death” when he sought treatment.
The estate challenged the finding, but the court sided with the board and ruled that there was no evidence the board had acted “unreasonably.”
In order to successfully claim money spent on treatment in other countries, applicants must either get pre-approval from OHIP, prove that they were in emergency circumstances or show that they would have suffered irreversible tissue damage.
Lawyers say the case shows how difficult the process can be to get reimbursed in such applications if pre-approval is not granted.
“If you want to try to get funding, you better act quickly and you better have your evidence ready,” says Alfred Kwinter, an insurance lawyer and founding partner of Singer Kwinter Personal Injury Lawyers, who did not act in the case.
“If you don’t wait for the approval, you better be able to show that there was a dire emergency that required the treatment and that it wasn’t available here. That’s the take-away and, ultimately, it’s very tough.”
Dykie did not seek pre-approval before leaving for Texas.
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His family, however, argued he was in immediate need of treatment.
Dykie was first diagnosed with cancer in August 2010. He was told the first step of his treatment would require consulting a surgeon, but while he waited for his appointment, he continued to experience severe symptoms.
After consulting his family doctor, he went to Toronto General Hospital on Aug. 12, where he stayed overnight, but he was discharged the next day with medication for his symptoms.
Expert witnesses in the board’s proceedings said Dykie’s condition had been stabilized when he left the hospital.
“The board relied on that, suggesting he was fine,” says Gary Srebrolow, a partner at Blaney McMurtry LLP, who represented Dykie’s estate.
“In response, we argued he was discharged from a medical point of view but not from a cancer treatment point of view.”
The hospital said it had set up an appointment with a surgeon for Aug. 19, but Dykie’s family disputed this.
He left the country on Aug. 14 to pursue care at a clinic in Houston, Tex.
In October, he returned to Ontario, where he received additional treatment, but he died in March 2012.
The board found Dykie would have had enough time to apply for pre-approval and that his condition was not “so urgent” that he needed to travel to Texas to get treatment.
“The perception seems to be the family went too quickly to Houston and perhaps jumped the gun and that they should have waited because perhaps an appointment was forthcoming,” says Srebrolow.
The family, however, were not told he had an appointment and he was very ill and needed treatment, Srebrolow says.
“Their position was that if they waited, it would have been too late,” he says. “The family felt that they did what they had to do at the time.”
The Divisional Court ruled that it only needed to determine whether the board’s decision was reasonable.
“The appellant is essentially asking us to re-evaluate the medical evidence and come to a different conclusion — one that favours its position,” Justice Ian Nordheimer wrote in the decision.
“That is not the role of this court on an appeal.”
The court found that Dykie’s family failed to show that the decision was unreasonable.
“The Board’s decision was driven by the facts as it found them, based on the medical evidence that it heard,” Nordheimer wrote.
“Those factual findings were open to the Board on the evidence.”
Kwinter notes that the decision does not go into much of the evidence in the board’s proceedings.
“All they do basically is uphold the findings of the board saying whatever findings they made with whatever evidence was called that their decision was reasonable,” he says.
“If it was reasonable based on the evidence, they don’t have to decide if it was right or wrong,”
Kwinter says the decision shows certain policy considerations make it very difficult for people to get reimbursed for treatments in other jurisdictions.
“There is an underlying concern that if the government funded treatment outside the province, this could very quickly drain the coffers provided for health care,” says Kwinter.
“They’ve put in certain tests and one of the tests is whether the treatment is available in Ontario.”
Kwinter says if pre-approval is denied, an appeal can take many months. And then, if the person cannot wait for the appeal, it can often be difficult to prove it was an emergency.
“If it’s so serious a treatment then how can you apply in advance?” he says.
“There are a lot of hurdles you have to jump over,” he adds.
Srebrolow says that those looking to get treatment outside of the country should seek a lawyer’s advice early to give their claims a better chance.
“Unfortunately, the people involved — regular citizens — don’t really know about he whole process until later on, once they’ve done things that may jeopardize a possible claim,” he says.
A spokesman for the Ministry of Health and Long-Term Care declined to comment, as the estate could appeal the decision.
