ASK THE LAWYER : ALLAN J. GOLD
“You know Mr Stein, maybe you should just accept it… enjoy what is left of your life and not do anything” Actual quote Dr Viegant of the Régie de L’assurance-maladie
Think of it, you’re suffering from a LIFE THREATENING illness and the treating doctors have prescribed a particular procedure/treatment, but the time factor is CRITICAL. Then the hospital/health providers in the jurisdiction of the Health Insurance Organization can’t perform such procedure/treatment on time. Would the Health Insurance Organization cover this procedure/treatment if same was readily available in another jurisdiction? Now consider the situation where the treating doctors have prescribed a particular procedure/treatment, which they believe will have a very important benefit to the patient, but same is not performed by the hospital/health providers in the jurisdiction of the Health Insurance Organization cover this procedure/treatment, if it was readily available in other jurisdiction?
A Court faced these very questions in a recent case in Quebec, Canada, involving the local Health Insurance Organization (albeit a government agency), notably the Régie de L’assurance-maladie du Québec C. Barry D. Stein ET Als. Tribunal Administratif du Québec ET Als, bearing Montreal Superior Court No. 500-05-045298-989.
The Honourable Madam Justice Carol Cohen J.C.S considered the following facts:
December, 1995: Stein was 41 years old in 1995 when he was diagnosed with colon cancer.
January, 1996: Dr. Phil Gordon, an internationally renowned expert in colorectal surgery, operated on Stein in Montreal, removing a one foot long section of his colon.
January, 1996: Further investigations detected three (3) other liver lesions. Stein’s doctors, strongly recommended that the liver metastases be removed as soon as possible, once he had recovered sufficiently from the colon surgery, but NO LATER than FOUR (4) to EIGHT (8) weeks therefrom; and Stein therefore expected the liver surgery to take place no later than the middle of March 1996.
April, 1996: The operation was scheduled to be performed by Dr. André Roy at St.Luc Hospital on three separate occasions between January and April 1996, but each time, due to hospital overcrowding and the qualification of the liver surgery as “elective”, Stein was told that the operation was cancelled.
April 2nd, 1996: Stein spent the day lying in a hospital bed, expecting to be wheeled to the operating room at any moment, but finally was told to go home; (this in itself must have been very unnerving and excruciating to bear).
April 8th, 1996: The first of these treatments, the liver resection, was available in Montreal and the delay recommended by Stein’s doctors for performing the resection had long passed.
As a result, Drs. Gordon and Gerald Batist wrote to the Régie for authorization to refer Stein to Dr. Daly in New York for the first procedure/treatment. Also as regards the second procedure/treatment, they wrote as follows:
“…As surgical intraoperative placement of the hepatic infusaid pump is not performed in Quebec or Canada. I am willing to cooperate with the American doctors following the surgery on giving chemotherapy to this patient.
In view of the seriousness of the disease and the young age of the patient who is father of 3 children, the procedure has to be done as possible. Otherwise the prognosis is guarded.
April 12, 1996: The Régie wrote to doctors refused the request as follows:
“…I regret to inform you that the Régie de l’assurance-maladie du Québec is unable to grant Barry Stein authorization to be hospitalized outside Canada to receive the medical services recommended by his doctors”.
April 16th, 1996: Stein reacted with shock and disbelief. He decided instead to follow the recommendations of his treating doctors and went to New York for the first operation, when Dr. Daly performed the liver resection (followed by traditional chemotherapy in Montreal).
January 1997: Stein then went to New York for the second operation, when Daly performed cryosurgery and installed the infusaid pump.
Subsequent to the subject procedures/treatments: Stein applied for reimbursement from/by the Régie, but the Régie refused his application therefore. Stein then appealed this decision to the TRIBUNAL ADMINISTRATIF DU QUEBEC (T.A.Q.), and this refusal was upheld. Stein then instituted proceedings (Motion In Evocation) before the Superior Court for the District of Montreal.
N.B. Stein was free of any recurrence of the liver lesions; and he and his treating physicians credited this state of good health to the treatments received from Daly in New York.
REFUSAL BY THE REGIE/UPHELD BY THE T.A.Q.:
The Régie refused coverage for:
i. Stein’s first operation in New York, (i.e. the liver resection/liver metastases), on the pretext that an identical procedure/treatment was available in Quebec at the St-Luc Hospital.
ii. Stein’s second operation in New York, (i.e. the cryosurgery and installation of a hepatic infusaid pump), on the pretext that the cryosurgery was performed in three (3) locations elsewhere in Canada and that the internal infusaid pump was not standard in Canada and therefore to be considered experimental.
Here’s how the Honourable Madam Justice Carol Cohen J.C.S. saw the issues.
“In sum, the Court must examine whether it was manifestly unreasonable or irrational for the T.A.Q. to conclude, on the basis of the proof, that the treatments received by Stein in New York were either available in Canada or of an experimental nature.”
Ruling on the first operation:
“…This conclusion is not only IRRATIONAL but has no relation with the proof presented to the Tribunal. All of the medical witnesses who testified, as acknowledged by the T.A.Q., recognized that the delay for the removal of the liver lesions should be as short as possible. All of the witnesses, Stein and his doctors – Confirmed the numerous cancellations of the surgery at St-Luc. Nevertheless, the T.A.Q. somehow concludes that the Régie acted reasonably, as the first request for treatment in New York was only made in April, not January…”.
“…This flies in the face of all logic. Stein and his doctors requested treatment in New York in April precisely because the surgery was not being performed in a timely fashion in Montreal and because it was more than 12 weeks since the liver lesions had been discovered. To maintain that it was reasonable to make Stein continue to wait for surgery in Montreal when the danger to his well-being increased daily is irrational, unreasonable and contrary to the purpose of the Health Insurance Act, which is designed to make necessary medical treatment available to all Quebecers…”
Ruling on the second operation:
“…The T.A.Q.’S approach to the January 1997 surgery in New York is no more rational in relation to the proof. Firstly, all of the medical experts acknowledge that any follow-up surgery had necessarily to be performed by Dr. Daly, insofar as he had performed the first operation. The logical conclusion would be that this surgery would take place in New York, and should be covered by the Act, as the first operation had not been sufficient to remove Stein’s liver lesions…”
“…Stein needed surgery on his liver in a timely fashion. Between January and April 1996, he could not get that surgery in Montreal. The subsequent treatments, which are not available here, saved or at least prolonged Stein’s life. These facts are uncontradicted. To refuse coverage in these circumstances is patently unreasonable and the Court therefore intervenes to annul the T.A.Q.’s decisions…”
Patients, take heart. Reason sometime prevails over a health bureaucracy gone mad. While laws, regulations, contracts, etc. are to be followed, surely they must be interpreted reasonably and logically. If there is a grey area, the benefit of the doubt must be given on the side of life and not death.
If a patient’s life is in peril or his/her health is being undermined and/or is at risk, interpretation must be made for the purpose of WELLNESS, and reasonably, not only as per the letter of the law and indeed with common sense as well. Administration and rules do not serve death, but rather give way to wellness.
It is true that the Health insurance organizations must have a system and criteria and allocate resources for the common benefit, but health and wellness are the purpose of it all and if they are not acting towards this end, then they are rogue organization acting contratry to the laws, regulations, rules, and must be curtailed.
It is documented that Dr. Viegeant of the Régie had the unmitigated gall and BAD SENSE to say to Stein to forget further surgery and live his remaining days in peace, and also as follows: “You know, Mr. Stein, maybe you should just accept it. Maybe you should just enjoy your life and not do anything.”
To this I say NO! NO! NO! Health insurance is designed to make necessary medical procedures/treatment available to all of its beneficiaries. This is an instance where Health insurance has gone mad. It has happened before, and it will happen again. This time, the good guy won. The lesson learned here is that if the treating doctors prescribe a particular procedure/treatment and Health insurance overrules them and refuses, then VIGOROUSLY FIGHT ON until the Health insurance will be told to be REASONABLE. LIFE IS PRECIOUS AND INDEED, IT IS WORTH FIGHTING FOR!!
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes and is not meant as legal advice. Seek out legal counsel for your particular needs.
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