BILL 22 – 2008
HEALTH CARE COSTS RECOVERY ACT
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Definitions
1 In this Act:
"beneficiary" has the same meaning as in the Medicare Protection Act;
"future cost of health care services" means the present value of the estimated total cost of all health care services that are provided, or are reasonably expected to be provided, to a beneficiary as a direct or indirect result of a personal injury described in section 2 after the date of settlement or, if there is no settlement, after the first day of trial;
"health care practitioner" means any of the following:
(a) a medical practitioner;
(b) a person authorized to practise as a member of a health care profession or occupation that may be prescribed under section 25 (2) (a) [regulations];
"health care services" means
(a) benefits as defined in the Hospital Insurance Act,
(b) benefits as defined in the Medicare Protection Act,
(c) payments made by the government under the Continuing Care Act,
(d) expenditures, made directly or through one or more agents or intermediate bodies, by the government for emergency health services provided in respect of a beneficiary under the Emergency and Health Services Act, and
(e) any other act or thing, including, without limitation, the provision of any health care treatment, aid, assistance or service or any drug, device or similar matter associated with personal injury,
(i) for which a payment or expenditure is or may be made, whether directly or through one or more agents or intermediaries, by the government in respect of a beneficiary, and
(ii) that is designated by regulation under section 25 (2) (b) [regulations];
"health care services claim", in relation to personal injury suffered by a beneficiary, means a claim for the recovery of the past and future costs of health care services attributable to that personal injury;
"past cost of health care services" means the total cost of all health care services provided to a beneficiary as a direct or indirect result of a personal injury described in section 2, including those services provided up to and including the date of settlement or, if there is no settlement, the first day of trial;
"wrongdoer" means
(a) a person whose negligent or wrongful act or omission causes or contributes to a beneficiary's personal injury or death, and
(b) a person who is responsible at law for the acts or omissions of a person referred to in paragraph (a),
but does not include the beneficiary.
Beneficiary's right to recover
2 (1) If, as a direct or indirect result of the negligence or wrongful act or omission of a wrongdoer, a beneficiary suffers a personal injury for which the beneficiary receives or could reasonably be expected to receive one or more health care services, the beneficiary may, subject to sections 6 [government may intervene in proceeding or assume conduct of claim] and 20 (2) and (3) [payments to the government], recover from the wrongdoer
(a) the past cost of health care services, and
(b) the future cost of health care services.
(2) Subsection (1) applies whether or not the personal injury was caused in whole or in part by the wrongdoer.
(3) For the purposes of subsection (1) but subject to section 20 (2) and (3) [payments to the government], payment or expenditure by the government, whether directly or through one or more agents or intermediaries, under any of the Acts referred to in the definition of "health care services" or under any other government plan or scheme of insurance for past and future costs referred to in subsection (1) must not be construed to affect the right of the beneficiary to recover those costs in the same manner as if those costs are paid or payable by the beneficiary.
(4) The past and future costs referred to in subsection (1) may be recovered as damages, compensatory damages or otherwise.
Obligation to claim
3 (1) If, in his or her own name or as a member of a class of persons under the Class Proceedings Act, a beneficiary referred to in section 2 (1) [beneficiary's right to recover] of this Act or his or her personal or other legal representative commences a legal proceeding against a person alleged to be the wrongdoer for damages arising from or related to the beneficiary's personal injury or death, the beneficiary or his or her personal or other legal representative must include a health care services claim in that legal proceeding.
(2) Subsection (1) does not apply if the government has already done either of the following:
(a) settled the health care services claim referred to in subsection (1);
(b) commenced a legal proceeding under section 8 (2) [government has independent right to recover] to recover the past and future costs of health care services.
(3) If a health care services claim has not been included in a legal proceeding described in subsection (1), the court must permit amendment of the originating documents, up to 6 months after the date on which the originating documents were filed with the court, in order to provide for that inclusion.
(4) Nothing in the Limitation Act prevents inclusion of a health care services claim under subsection (3) if the original legal proceeding for damages under subsection (1) is brought within the time limited for doing so under that Act.
Requirement to notify government of claim
4 (1) Within 21 days after commencing a legal proceeding referred to in section 3 (1) [obligation to claim], written notice of the legal proceeding must be given to the government
(a) by the beneficiary or his or her personal or other legal representative, or
(b) if the beneficiary or his or her personal or other legal representative is represented in the legal proceeding by a lawyer, by the lawyer or by the beneficiary or his or her personal or other legal representative.
(2) Notice under subsection (1) must be in the prescribed form and include a copy of the originating documents for the legal proceeding.
Final disposition of claim or legal proceeding
5 (1) A legal proceeding referred to in section 3 (1) [obligation to claim] must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court.
(2) The court must not set aside, dismiss or strike out a health care services claim unless the court is satisfied that the government has been given a reasonable opportunity to appear and make representations.
(3) The court must not make an order finally disposing of a legal proceeding referred to in section 3 (1) [obligation to claim] unless the court is satisfied that the government has been given both of the following:
(a) the written notice required under section 4 [requirement to notify government of claim];
(b) written notice of the application for the order of final disposition.
Government may intervene in proceeding or assume conduct of claim
6 (1) The government may, in relation to a legal proceeding referred to in section 3 (1) [obligation to claim], do any of the following:
(a) intervene in the proceeding;
(b) on written notice to the beneficiary or his or her personal or other legal representative, as the case may be, assume conduct of the health care services claim portion of the proceeding.
(2) In assuming conduct under subsection (1) (b), the government may, as it sees fit, pursue, discontinue or settle all or any part of the health care services claim.
Government has subrogated right
7 (1) The government is subrogated to any right of the beneficiary referred to in section 2 [beneficiary's right to recover] to recover the past and future costs of health care services under that section.
(2) For the purposes of subsection (1), the government may commence legal proceedings, in its own name or in the name of the beneficiary, for recovery of those past and future costs of health care services.
(3) If a legal proceeding is commenced under section 3 (1) [obligation to claim] after the commencement of a legal proceeding referred to in subsection (2) of this section, the 2 legal proceedings are, unless the court orders otherwise, to be consolidated.
Government has independent right to recover
8 (1) Despite section 2 [beneficiary's right to recover] and independent of its subrogated right under section 7 [government has subrogated right], if, as a direct or indirect result of the negligence or wrongful act or omission of a wrongdoer, a beneficiary suffers a personal injury for which the beneficiary receives or could reasonably be expected to receive one or more health care services, the government may recover from the wrongdoer
(a) the past cost of health care services, and
(b) the future cost of health care services.
(2) The government may commence a legal proceeding in its own name for the recovery of the past and future costs of health care services referred to in subsection (1).
(3) Subsection (1) applies whether or not the personal injury was caused in whole or in part by the wrongdoer.
(4) The past and future costs of health care services referred to in subsection (1) may be recovered as damages, compensatory damages or otherwise.
(5) Subject to subsection (7), the government must not commence a legal proceeding under subsection (2) after the later of the following 2 dates:
(a) the date that is 6 months after the expiration of the limitation period that applies to the beneficiary's right to commence a legal proceeding against the alleged wrongdoer for damages in respect of the personal injury referred to in section 2 [beneficiary's right to recover];
(b) the earliest of the following dates:
(i) the date that is 6 months after the date on which the government first receives notice under section 4 [requirement to notify government of claim];
(ii) the date that is 6 months after the date on which the minister first receives notice or information under section 10 [information from insurer];
(iii) the date that is 6 months after the date on which the minister is first provided with records or information from the beneficiary or his or her personal or other legal representative under section 11 (2) [beneficiary's duty to cooperate];
(iv) the date that is 6 months after the date on which the minister first receives notice under section 12 [beneficiary's duty to give notice to minister before settlement];
(v) the date that is 6 months after the date on which the minister first receives notice under section 13 (1) (a) [settlement of claims].
(6) The government may include in a legal proceeding commenced under this section a claim for an order establishing liability for the personal injury or death suffered by a beneficiary referred to in section 2 (1) [beneficiary's right to recover] and the claim may be made even after the expiration of the limitation period that applied to the beneficiary's right to commence a legal proceeding against the alleged wrongdoer, but any order granted in respect of that claim has effect only in relation to the health care services claim.
(7) Subsection (5) (b) does not apply if the limitation period referred to in subsection (5) (a) has expired before the date that subsection comes into force.
Government proceedings
9 (1) The government need not obtain the permission of the beneficiary or his or her family members or personal or other legal representative to commence a legal proceeding under section 7 (2) [government has subrogated right] or 8 (2) [government has independent right to recover].
(2) It is not a defence to a legal proceeding commenced by the government under section 8 (2) [government has independent right to recover] that a claim for damages for the beneficiary's personal injury or death has been adjudicated or settled unless
(a) the claim or settlement included a health care services claim, and
(b) in the case of a settlement, the requirements of section 13 [settlement of a health care services claim] have been met.
(3) It is not a defence to a legal proceeding commenced in respect of a beneficiary for a claim, other than a health care services claim, for damages for the beneficiary's personal injury or death that a legal proceeding commenced by the government under section 7 (2) [government has subrogated right] or 8 (2) [government has independent right to recover] has been adjudicated or settled.
(4) Despite subsection (2), it is a defence to a legal proceeding commenced by the government under section 8 (2) [government has independent right to recover] that a claim for damages for the beneficiary's personal injury or death has been adjudicated or settled before the date that section 8 (2) comes into force.
Information from insurer
10 (1) This section applies to an insurer of a person if an act or omission of the insured person has or may have caused or contributed to the personal injury or death of a beneficiary.
(2) An insurer must, within 60 days after learning of the matter described in subsection (1), notify the minister of those circumstances in the prescribed form.
(3) The minister may request the insurer to provide the minister with one or more of the following:
(a) a copy of the insured person's insurance policy;
(b) if the matter was reported to the police, a copy of the police report, if any;
(c) a copy of any affidavit, pleadings or application, as they relate to legal proceedings in respect of the matter.
(4) The insurer must comply with the minister's request in the manner and before the date specified in the request.
(5) Provision of information under this section is not an admission or acknowledgement of liability in relation to the insured.
(6) Subsection (2) does not apply in respect of a matter that the insurer learns of before that subsection comes into force.
Beneficiary's duty to cooperate
11 (1) 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.
(2) Without limiting subsection (1), the beneficiary or his or her personal or other legal representative must
(a) at the request of the minister and as often as the minister considers necessary, do one or more of the following:
(i) provide the minister with records or information that are in the possession or under the control of the beneficiary or the personal or other legal representative and relate to the following:
(A) the nature and extent of the beneficiary's injury;
(B) the treatment, current condition and prognosis of the injury;
(C) the rehabilitation of the beneficiary in respect of the injury;
(D) the cause, origin and circumstances of the injury;
(E) the health care services that have been received or may be required by the beneficiary in relation to the injury;
(ii) provide evidence relating directly or indirectly to the health care services claim
(A) in any form required by the minister, and
(B) in any proceeding or other forum required by the minister,
(b) 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;
(iii) obtain and provide to the minister a certificate or report, in any form required by the minister, of an attending health care practitioner as to one or more of the following as may be requested by the minister:
(A) the nature and extent of the beneficiary's injury;
(B) the treatment, current condition and prognosis of the injury;
(C) any other aspect of the beneficiary's injury or rehabilitation,
(c) provide the persons assisting the government in its efforts to recover the past and future costs of health care services referred to in subsection (1) with any cooperation reasonably required by those persons,
(d) comply with a request under paragraph (a) or (b) in the manner and before the date specified in the request, and
(e) comply with the requirements of section 12 [beneficiary's duty to give notice to minister before settlement].
Beneficiary's duty to give notice to minister before settlement
12 At least 21 days before a beneficiary referred to in section 2 [beneficiary's right to recover] or his or her personal or other legal representative enters into any settlement relating to the personal injury referred to in that section, the beneficiary or personal or other legal representative must give notice to the minister in the prescribed form and in accordance with the regulations, if any, under section 25 (2) (d) [regulations].
Settlement of claims
13 (1) A claim against a person alleged to be the wrongdoer for damages arising from or related to a beneficiary's personal injury or death must not be settled unless
(a) the person who would be liable to make payments under the proposed settlement gives to the minister notice of the proposed terms of settlement, in the prescribed form and in accordance with the regulations, if any, under section 25 (2) (d) [regulations], and
(b) the minister consents in writing to the proposed settlement.
(2) If the proposed settlement referred to in subsection (1) (a) is a settlement requiring approval of the court under the Class Proceedings Act, the person referred to in subsection (1) (a) must
(a) give the minister the notice under that provision, and
(b) receive the minister's written consent under subsection (1) (b)
before filing with the court any application for the approval of the court under that Act.
(3) Before consenting under subsection (1) (b), the minister may request the person referred to in subsection (1) (a) to provide the minister with any records or information that the minister considers necessary to evaluate the proposed settlement as it relates to the government's recovery of past and future costs of health care services in respect of the beneficiary.
(4) A person receiving a request by the minister under subsection (3) must comply with that request in the manner and before the date specified in the request.
(5) If the person referred to in subsection (1) (a) does not give notice in accordance with that provision,
(a) the government has the right to recover from that person the total amount of the past and future costs of health care services relating to the beneficiary's injury,
(b) the total amount of the past and future costs of health care services referred to in paragraph (a) may be recovered as a debt due from that person to the government, and
(c) section 17 [joint and several liability] does not apply.
(6) The person liable to make payments required under the proposed settlement must submit to the minister, within the time period provided under subsection (7), the full amount of the settlement that is, in the proposed terms of settlement referred to in subsection (1) (a), designated as being attributable to the cost of the applicable health care services.
(7) The time period referred to in subsection (6) is the 60-day period following the date of the minister's consent under subsection (1) (b) or such longer period as may be approved by the minister on request of the person who is liable to make payments required under the settlement.
(8) Any release given in relation to a claim referred to in subsection (1) is void unless
(a) the person to whose benefit the release is given gives to the minister, in accordance with the regulations, if any, under section 25 (2) (d) [regulations], written notice of the proposed terms of the release, and
(b) the minister consents in writing to the release.
(9) This section applies whether or not a legal proceeding has been commenced in relation to the health care services claim.
Orders for information and documents
14 (1) If the minister considers that a beneficiary, insurer or other person has failed to provide records or information under one or more of sections 10 to 13, the minister may apply to the Supreme Court for an order under this section.
(2) On application by the minister, the Supreme Court may, subject to any conditions that it considers appropriate, make an order compelling the beneficiary, insurer or other person to provide the required records or information if the Supreme Court is satisfied that
(a) the records or information are in the possession or under the control of the beneficiary, insurer or other person, and
(b) the records or information are relevant to the government's right of recovery.
(3) An order made under this section may include an order for the actual costs, disbursements and expenses incurred by the minister in relation to an application under this section.
Protection of information and records provided
15 (1) Provision of any information or records under sections 10 to 14 does not constitute waiver of any privilege that may exist in the information or records.
(2) Information and records referred to in subsection (1)
(a) may only be used by the minister, the government and their agents and legal counsel for purposes of the government's recovery of past and future costs of health care services under this Act, and
(b) may not be disclosed to any other person except for those purposes.
Minister's certificates
16 (1) A certificate
(a) purporting to have been issued by or on behalf of the minister for the purposes of
(i) a health care services claim, or
(ii) recovery under section 13 (5) [settlement of claims], and
(b) setting out the health care services that have been received by a beneficiary or class of beneficiaries and the health care services that a beneficiary or class of beneficiaries will likely receive in the future for personal injuries suffered as a result of the negligence or wrongful act or omission of a wrongdoer,
is proof of those health care services.
(2) A certificate
(a) purporting to have been issued by or on behalf of the minister for the purposes of
(i) a health care services claim, or
(ii) recovery under section 13 (5) [settlement of claims], and
(b) setting out the past cost of health care services, the future cost of health care services, or both, attributable to personal injury suffered by a beneficiary or a class of beneficiaries,
is conclusive proof of the past cost of health care services, the future cost of health care services, or both, as the case may be.
Joint and several liability
17 If it is determined in a legal proceeding referred to in section 3 (1) [obligation to claim], 7 (2) [government has subrogated right] or 8 (2) [government has independent right to recover] that the personal injury of a beneficiary was caused, in whole or in part, by the negligence or wrongful act or omission of 2 or more wrongdoers, those wrongdoers are jointly and severally liable for the percentage of the past and future costs of heath care services attributable to the personal injury that is equal to the percentage of total fault for the injury that is determined by the court to be attributable to those wrongdoers.
Priority of beneficiary's payments
18 (1) Subject to subsection (2), payments to a beneficiary or family member of the beneficiary under a judgment obtained against a wrongdoer, or under a settlement to which the minister has consented under section 13, that is based on a claim respecting the personal injury or death suffered by the beneficiary have priority over payments to the government under a judgment obtained against a wrongdoer, or under a settlement to which the minister has consented under section 13, that is based on the government's right of recovery under section 7 (1) [government has subrogated right] or 8 (1) [government has independent right to recover].
(2) Subsection (1) does not apply to a payment received by the government under a judgment obtained against, or a settlement entered into with, a wrongdoer before the beneficiary or family member has obtained a judgment against, or entered into a settlement with, the wrongdoer.
(3) When the government has received a payment under a judgment obtained against, or a settlement entered into with, a wrongdoer before the beneficiary or family member has obtained a judgment against, or entered into a settlement with, the wrongdoer, the minister may pay to the beneficiary or family member an amount that does not exceed the payment received by the government if
(a) the beneficiary or family member subsequently obtains a judgment, or enters into a settlement with, the wrongdoer, and
(b) the minister believes that the beneficiary or family member will not receive the full amount to which the beneficiary is entitled under the judgment or settlement.
Government has separate appeal right in beneficiary's proceeding
19 If judgment has been given in a legal proceeding referred to in section 3 (1) [obligation to claim] and the beneficiary or his or her personal or other legal representative has not appealed the decision within the appeal period set out in section 14 of the Court of Appeal Act, the government may, within 15 days after the date that appeal period expires, appeal in its own name the judgment as it relates to the health care services claim.
Payments to government
20 (1) The court must, as part of any judgment awarded in a legal proceeding referred to in section 3 (1) [obligation to claim], 7 (2) [government has subrogated right] or 8 (2) [government has independent right to recover], designate the amount of the judgment that is applicable to the health care services claim.
(2) The amount designated for the health care services claim by the court under subsection (1), or, if a different amount is designated for the health care services claim in a settlement consented to by the minister under section 13 (1) (b) [settlement of claims] or in settlement of a legal proceeding that may be commenced under section 8 [government has independent right to recover], that different amount, is a debt due to the government by the person obliged to pay the judgment amount or the settlement amount, as the case may be.
(3) If the amount of the debt referred to in subsection (2) has been recovered by, has been paid to or is held by any other person, including, without limiting this, the beneficiary or the beneficiary's personal or other legal representative, the person
(a) holds that amount in trust for the government, and
(b) must, within 30 days after the person's receipt of that amount, submit that amount to the minister responsible for the Financial Administration Act.
Indemnification of beneficiary for costs and expenses
21 Subject to the regulations, if any, under section 25 (2) (h) [regulations], the government must indemnify a beneficiary or his or her personal or other legal representative for the following:
(a) any costs awarded against that person in relation to a legal proceeding referred to in section 3 (1) [obligation to claim], as those costs relate to the conduct of the health care services claim;
(b) expenses reasonably and necessarily incurred by that person in complying with section 11 (1) and (2) (a) [beneficiary's duty to cooperate].
Service of notices to government
22 Written notice to the government under section 4 (1) [requirement to notify government of claim] or 5 (3) (b) [final disposition of claim or legal proceeding]
(a) must be served on the Attorney General at the Ministry of the Attorney General in the City of Victoria, and
(b) is sufficiently served if
(i) left there during office hours with a solicitor on the staff of the Attorney General at Victoria,
(ii) mailed by registered mail to the Deputy Attorney General at Victoria, or
(iii) if provided by any other means of service prescribed in the regulations.
Section 5 of Offence Act does not apply
23 Section 5 of the Offence Act does not apply to this Act.
Application of this Act
24 (1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force.
(2) The requirements of sections 3 [obligation to claim], 4 [requirement to notify government of claim] and 5 [final disposition of claim or legal proceeding] do not apply in relation to legal proceedings commenced before this subsection comes into force.
(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to
(a) personal injury or death arising out of a wrongdoer's use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,
(b) personal injury or death arising out of a tobacco related wrong as defined in the Tobacco Damages and Health Care Costs Recovery Act, or
(c) personal injury or death arising out of and in the course of the beneficiary's employment if compensation is paid or payable by the Workers' Compensation Board out of the accident fund continued under the Workers Compensation Act.
(4) In subsection (3) (c):
"compensation" includes a health care benefit provided under the Workers Compensation Act;
"personal injury" includes occupational disease as defined in the Workers Compensation Act.
Regulations
25 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing health care professions and occupations for the purposes of paragraph (b) of the definition of "health care practitioner";
(b) designating an act or thing for the purposes of paragraph (e) of the definition of "health care services";
(c) prescribing forms for the purposes of this Act;
(d) prescribing the means of giving a notice to the minister under section 12 [beneficiary's duty to give notice to minister before settlement], 13 (1) (a) or (8) (a) [settlement of claims], including prescribing when notices given by those means are deemed to be received;
(e) establishing the terms and conditions under which a lawyer for a beneficiary, or for his or her personal or other legal representative, may also represent the government's interests in respect of a health care services claim including the basis of any contingency fee arrangement that may be entered into in relation to such representation;
(f) exempting a person or a member of a class of persons from all or any of the provisions of this Act, and establishing terms and conditions applicable to those exemptions;
(g) exempting a legal proceeding or health care services claim or a class of legal proceedings or health care services claims from all or any of the provisions of this Act, and establishing terms and conditions applicable to those exemptions;
(h) respecting the circumstances in which, the costs or expenses for which and the extent to which, if at all, the government may provide indemnification under section 21 [indemnification of beneficiary for costs and expenses];
(i) prescribing other means of service for the purposes of section 22 (b) [service of notices to the government], including prescribing when documents provided by those means are deemed to be received;
(j) defining any term or expression used but not defined in this Act.
Consequential Amendments
Hospital Insurance Act
26 Section 25 of the Hospital Insurance Act, R.S.B.C. 1996, c. 204, is repealed.
27 Section 29 (3) (c) is repealed.
Commencement
28 This Act comes into force by regulation of the Lieutenant Governor in Council.
Explanatory Note
This Bill applies if a person is injured by a wrongful act or omission of a wrongdoer, and allows the government to recover from the wrongdoer the costs and expenses incurred by the government in providing to the injured person health care relating to that injury. The government is, for this purpose, able to join any action brought by the injured person or may pursue its own independent claim. Government is also entitled to call on persons having relevant information respecting the injury or the wrongful act or omission to provide assistance to the government in relation to its claim.
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