J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 107 Date: 20080825 Between: Docket: 1212 Carlos Huerto Appellant (Respondent on Cross-Appeal) and The Government of Saskatchewan Respondent (Appellant on Cross-Appeal) Coram: Richards, Hunter Wilkinson JJ.A. Counsel: Robert G. Kennedy, Q.C. for the Appellant Gary L. Bainbridge for the Respondent Appeal: From: 2005 SKQB 373 (CanLII) Heard: December 3, 2007 Disposition: Appeal dismissed/Cross-appeal dismissed Written Reasons: August 25, 2008 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Hunter The Honourable Madam Justice Wilkinson Richards J.A. I. Introduction [1] This appeal arises from a dispute between the appellant, Dr. Carlos Huerto and the respondent, Government of Saskatchewan, over the payment for medical services provided by Dr. Huerto to his patients. [2] Over period of approximately 10 years, the Government withheld payment in relation to what eventually amounted to some 12,000 of Dr. Huerto’s accounts. It did so by using particular billing code which indicated, in effect, that the accounts would not be paid until further information was provided. [3] Dr. Huerto believed the Government’s use of the billing code was unlawful and chose not to provide additional information. He ultimately commenced an action in the Court of Queen’s Bench to compel payment of his accounts. With one small exception, the claim was dismissed on the basis that the action was premature. [4] Dr. Huerto appeals from the Queen’s Bench ruling. The Government cross-appeals in relation to the limited aspect of the case in which Dr. Huerto enjoyed success at trial. [5] I conclude, for the reasons set out below, that both the appeal and the cross-appeal must be dismissed. A. The Legal Framework [6] In order to resolve this appeal it is necessary to understand the broad outline of the scheme which governs payment for physician services in Saskatchewan. [7] The evidence at trial indicated physicians have the option of either working wholly outside the publicly funded health care plan, billing patients directly and having the patients seek reimbursement from the Government or submitting accounts directly to the Government for payment. [8] Most physicians opt for the third approach. In this regard, s. 18(2) of The Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (the “MCIA”), contemplates agreements between individual physicians and the Government in relation to the payment of insured services. It reads as follows: (2) Where physician or other person providing services has entered into an agreement with the minister with respect to payment for insured services provided by him to beneficiaries, the minister shall make payment to him in accordance with the provisions of that agreement. [9] The compensation paid for specific services is spelled out in the “Physician Payment Schedule” referenced in ss. 3(d) and 6(1)(d) of The Saskatchewan Medical Care Insurance Payment Regulations, 1994, R.R.S., c. S-29, Reg. 19 (“the Regulations”). Two versions of the Payment Schedule were in place during the time period relevant to this appeal. They are not materially different. All references to the Schedule in these reasons are to the April 1, 1996 version of it. [10] The accounts submitted by physicians are processed by computer and, if necessary, reviewed by assessment staff or medical consultants. As provided in the Payment Schedule, two letter “code” is applied to accounts which are rejected or returned. For example “AE” means “incorrect date of birth”, “BQ” means “invalid service code” and “DA” means “not approved for payment”. B. Dr. Huerto’s Circumstances [11] Dr. Huerto is cardiologist. He has private clinic in Saskatoon. [12] In 1985, Dr. Huerto entered into “Direct Payment Agreement with Physicians” (the “Direct Payment Agreement”) with an agency of the Government known as the Medical Care Insurance Commission (now the Medical Care Insurance Branch (“MCIB”)). The Agreement says payments will be made in accordance with the Physician Payment Schedule, described above, and provides as follows: 1. [MCIB] shall make payment directly to the physician…for insured services provided by the physician to beneficiaries with respect to accounts submitted directly to [MCIB]. 2. Payment for each service shall be in accordance with: (a) MCIB’s payment schedule and the Assessment rules contained in that schedule applicable to the service on the date it was provided; and (b) The regulations made under The Saskatchewan Medical Care Insurance Act. 3. The physician agrees to accept the payment referred to in section hereof as payment in full. 4. [MCIB] or the physician may request reassessment of an account. [13] In 1993, Dr. Huerto entered into an Automated Claim Submission Agreement pursuant to which he began to submit his accounts to the Government by electronic means. [14] Dr. Huerto’s style of practice involves an unusually frequent use of diagnostic tests such as electrocardiograms (“ECGs”), echocardiograms and Holter monitors, device for tracking the electrical activity of the heart. [15] In the early part of 1994, MCIB had difficulties processing Dr. Huerto’s claims. Those problems appear to have arisen in large part because the claims were regularly submitted out of chronological order. This caused the computer to reject them with the result that they had to be dealt with manually. [16] In consequence, Government officials developed special protocol (the “Protocol”) for dealing with Dr. Huerto’s accounts. MCIB began using it in the summer or fall of 1994. The Protocol reads as follows: 1. Echocardiograms, service codes 322A and 323A should be assessed using the new payment schedule rules and codes for multiples during the year using January 1, 1996 as start date. This means up to four echocardiograms will be paid during the year with the first at 100% and the second at 50% and the final two at 25%. All others should be rejected with explanatory code FK. 2. Holter monitors (service code 141D and 142D) are to be paid if the interval between series of these codes exceeds 100 days, anything less than 100 days should be rejected explanatory code AU. 3. Reject ECG’s service code 32D performed within days following stress testing service code 62D with an explanatory code AU. 4. Reject the second and third visit service and associated ECG within three days, explanatory code AU. 5. Convert any 9D billings in the 90 days following 9D to 5D explanatory code EN. 6. Convert any 3D billings in the 90 days following 9D to 5D explanatory code EM. 7. Convert any 3D billed in 42 days following 3D to 5D explanatory code EM. 8. Out of province beneficiary histories are to be assessed against the excel histories contained on the file; PROF_REV\\EXCEL\\ZHUERTO\\OOPBENS\\A96mmmdd.xls (mmm month and dd day) 9. Reject all 111A claims. 10. Pay maximum service 381M per date. 11. Duplicates reject, explanatory code BA. [Emphasis added] [17] As result of the application of the Protocol, significant number of Dr. Huerto’s accounts were marked with the AU code and not paid pending receipt of additional information. The Payment Schedule describes that code as follows. AU To assist our Medical Consultants in the assessment of this service please resubmit claim form with copy of the operative report or descriptive letter. [18] Dr. Huerto did not respond to the requests for further explanation. The only exception occurred in April of 1996 when he forwarded to the Government form he had devised to address the AU issue and, set out in keeping with the terms of his form, detailed information about 16 selected patients. There was an exchange of correspondence between Dr. Huerto and the Government but the claims were not resolved and MCIB ultimately took the position that they were out of time and not payable. [19] Dr. Huerto commenced his action against the Government in May of 1997 and sought payment for the services which had attracted the AU code. C. The Decision of the Trial Judge [20] The trial judge began his decision by rejecting the Government’s argument that Dr. Huerto’s claim must fail because he had not responded fully to the requests for further information within six months from the dates on which services had been rendered. This submission was based on time limits prescribed by the combined effect of s. 16(1) of the MCIA and s. 11(1) of the Regulations. The trial judge found that Dr. Huerto’s accounts contained the information specified in the “Form of Account” section of the Payment Schedule and said it would be illogical to deny payment merely because Dr. Huerto had not satisfied requests for further information within six months from the date services were provided. [21] The trial judge then turned to Dr. Huerto’s argument that the AU code could not be applied to the services in issue. In so doing, he rejected the idea that the Government was obligated to pay physician’s account simply because the services in question had been performed. In his view, the Government was entitled to use the AU code to inquire why particular service had been provided. [22] The trial judge next considered Dr. Huerto’s argument that, by its use of the AU code, the Government was attempting to regulate his pattern of practice, matter Dr. Huerto contended could be addressed only by the appointment of Joint Medical Professional Review Committee (“JMPRC”) established pursuant to s. 49.2 of the MCIA. The judge found that the Government had not attempted to regulate his pattern of practice. He concluded the AU code had been used to seek explanations for individual services which were questionable in light of the histories of particular patients. [23] The trial judge awarded Dr. Huerto damages in the amount of 30 percent of the billings for the 16 patients for whom Dr. Huerto had submitted additional information in April of 1996. He declined to award any damages with respect to the rest of Dr. Huerto’s accounts. In his view, Dr. Huerto’s failure to respond to the requests for further information, or to make any reasonable effort to do so, rendered this aspect of his claim premature. [24] This case raises number of issues. With respect to the appeal proper, Dr. Huerto does not directly question the trial judge’s conclusion that his action is premature. Rather, his attack is directed at the Protocol and the Government’s use of the AU code. He makes four points: (a) The Protocol is invalid because it amounts to unilateral amendment of the Payment Schedule; (b) In any event, the Government has no authority to create an individualized payment schedule for particular physician; (c) The AU code was not applicable to Dr. Huerto’s accounts because they did not involve the provision of “unusual” services; and (d) The Protocol was unlawful because it was an attempt to regulate Dr. Huerto’s pattern of practice. [25] For its part, the Government raises two issues by way of cross-appeal. It contends: (a) The large majority of Dr. Huerto’s claims are barred because they were not submitted within six months of the date when the services in question were provided; and (b) The trial judge should have declined jurisdiction because Dr. Huerto failed to take advantage of the internal appeal procedures available to physicians dissatisfied with the Government’s assessment of their accounts. Analysis A. Unilateral Amendment of the Payment Schedule [26] Dr. Huerto’s first submission is that the Protocol is, in effect, an amendment of the Payment Schedule by way of administrative fiat and hence invalid. More specifically, he says the Protocol creates special rules not found in the Payment Schedule for the payment of ECG and Holter monitor services. [27] The central problem with this submission is that it characterizes the Government’s use of the AU code as refusal to pay for services. But, that is not what the code indicates. It merely represents request for further information about the service in question. As noted above, the Payment Schedule defines the AU code in these terms: AU To assist our Medical Consultants in the assessment of this service please resubmit claim form with copy of the operative report or descriptive letter. [28] In this case, but for the exception of the 16 accounts he attempted to deal with in 1996, Dr. Huerto chose not to respond to the Government’s requests for additional information. As practical consequence of that decision, he received no payment for the services in issue. However, the fact he was not paid does not mean the AU coding caused that result. By marking service “AU”, the Government was simply asking for more information. It was not denying payment. [29] In response to this point, Dr. Huerto says the real world effect of applying the AU code to some 12,000 accounts was to refuse compensation. He submits that, in practical terms, it is impossible to provide such large amount of additional information. In other words, he contends the Government has put him in situation where he cannot do the paperwork necessary to receive payment for the services he provided. [30] This line of attack is unpersuasive. The reason Dr. Huerto is currently facing some 12,000 AU requests is because he refused to respond to them as they accumulated. His current dilemma is substantially of his own making. He is not entitled to prevail in this litigation because he refused to provide further information with respect to his accounts and let some 10 years elapse before taking action to deal with the matter. The simple accumulation of AU requests over the years does not change their essential character. [31] Dr. Huerto goes on, by way of an alternative approach to this issue, to say the Protocol creates “timing requirements” for the provision of ECG and Holter monitor services which are not included in the Payment Schedule. This submission is correct insofar as it goes. However, in order to properly assess its merit, it is necessary to look more deeply at the Payment Schedule. [32] Section 6(1)(d) of the Regulations says physician is to be paid “… in accordance with the physician payment schedule and the assessment rules contained in that schedule.” The Payment Schedule, as result, is the central feature of the payment regime. In my view, it does not anticipate that the Government will pay each and every account rendered by physician merely because the services underpinning such accounts have been provided. Rather, as might be expected in system which governs the expenditure of public funds, it contemplates that the Government has some authority to look behind the face of the accounts presented for payment. [33] This is made entirely clear by key section of the Payment Schedule entitled “Assessment Rules”. The “Introduction” aspect of that section states as follows: Claims for insured services submitted by any mode of billing are subject to the assessment rules…. The relationship of the current service to prior or subsequent services may result in payment at an amount which differs from the payment listed in the Payment Schedule. previous payment may be adjusted due to the subsequent submission of claim for related service…. When request is made for an explanation or outline of circumstances in order to assess claim, Saskatchewan Health shall determine whether the explanation is acceptable. [34] The “Explanatory Codes” section of the Schedule also reveals an underlying assumption that an account need not be paid merely because it is presented to the Government. It sets out codes which involve the denial of payment. For example, code “AX” is described as “A Medical Consultant has reviewed this claim. The circumstances described are not considered sufficient to warrant additional payment”. [35] Thus, overall, it is apparent that the Payment Schedule allows the Government, in at least some circumstances, to request more information about the services underpinning an account and, in appropriate situations, to deny payment of an account. The Schedule does not oblige the Government to compensate physician merely because service has been provided and an account submitted. [36] It can be seen, therefore, that the aspects of the Protocol impugned by Dr. Huerto are not inconsistent with the Payment Schedule. They merely set out the circumstances in which further information will be requested in relation to the provision of ECG and Holter monitor services. Indeed, by requiring the application of the AU code to Holter monitor test provided within one hundred days of another such test and to an ECG provided within three days of stress test, the Protocol ties directly into the “Assessment Rules” portion of the Schedule. In particular, it ties into the aspect of those Rules, referred to above, which states that accounts may be adjusted with reference to the relationship between the service being billed and prior or subsequent services and, in addition, may be adjusted with reference to the submission of claims for related services. [37] This reading of the Payment Schedule is not inconsistent with s. 17(1)(c) of the MCIA which is to the effect that the intention and purpose of the Act is not to establish medical care insurance plan under which “the exercise of professional judgment by physicians is in any way diminished.” In my opinion, this broad statement of principle should not be read so aggressively as to mean the Government, as the payor in publicly funded health care system, has no right to ask questions about the accounts presented for payment by physicians. In some circumstances, it might be possible to raise an argument that refusal to pay accounts, or certain kinds of accounts, is inconsistent with s. 17(1)(c). However, need not resolve that issue because it does not arise in this case. The Government has not denied payment of Dr. Huerto’s accounts. Nor has it had the opportunity to take issue with Dr. Huerto’s explanation of the accounts. For example, Dr. O’Carroll, Medical Manager of Health Services with MCIB, testified that he had never heard or received the rationale offered by Dr. Huerto at trial as to why, in his view, intensive use of ECGs and Holter monitor tests was advisable. [38] In my opinion, the Protocol cannot be characterized as an amendment of the Payment Schedule. Properly understood, it is an administrative tool which sets out the situations in which Dr. Huerto will be asked for further information about the provision of specific services. This is fully in line with the terms of the Schedule and is not an amendment of them. B. No Authority to Create an Individualized Payment Schedule [39] Dr. Huerto’s second submission is that the Protocol amounts to an individualized “payment schedule”. He says the Government does not have the statutory authority to create compensation regime which treats him differently than other physicians and contends any payment schedule must apply equally to all. [40] agree that some aspects of the Protocol define Dr. Huerto’s entitlement to compensation in manner unique to him. The clearest example is its ninth point which says “Reject all 111A claims” (“111A” being direct intravenous injection of medication). By directing such claims not be paid, the Protocol makes it impossible for Dr. Huerto to be remunerated for providing that sort of service, regardless of the circumstances in which it is rendered. [41] This appeal, however, is concerned only with the services provided by Dr. Huerto which have been coded AU. For ease of reference, the relevant parts of the Protocol are set out below: 2. Holter monitors (service code 141D and 142D) are to be paid if the interval between series of these codes exceeds 100 days, anything less than 100 days should be rejected explanatory code AU. 3. Reject ECG’s service code 32D performed within days following stress testing service code 62D with an explanatory code AU. 4. Reject the second and third visit service and associated ECG within three days, explanatory code AU. [42] These provisions do not amount to “payment schedule” uniquely applicable to Dr. Huerto. This is because, as explained above, marking an account AU does no more than ask for further information about the particular service provided to specific patient. It does not deny payment for that service. Further, use of the AU code did not alter Dr. Huerto’s entitlement to be compensated for providing an ECG or Holter monitor test at precisely the same rate as other physicians in Saskatchewan. [43] There are situations where the Government has the right to ask for additional information before agreeing to pay an account. The aspects of the Protocol relating to the AU code operationalize that right in the circumstances of Dr. Huerto’s unusual practice. Indeed, the evidence at trial, particularly the evidence of Mr. Trew, MCIB’s Director of Compensation and Professional Review, was that the Protocol was designed to facilitate the payment of Dr. Huerto’s accounts, not to deny or frustrate their payment. [44] The Protocol is obviously an individualized administrative process. However, do not accept the argument that it is “payment schedule” uniquely applicable to Dr. Huerto. C. Unusual Service [45] Dr. Huerto says the ECG and Holter monitor procedures which are at the root of this appeal are standard tests and not “unusual” in and of themselves. As result, he contends they cannot validly attract an AU code. His submission in this regard is based on s. 5(1)(j) of the Regulations. Section 5(1) is set out below: 5(1) The minister may make payment to person for insured services provided to beneficiary where the person presents an account to the minister containing: (a) the full name of the patient; (b) the registration number of the patient; (c) the month and year of birth and the sex of the patient; (d) the location of services as follows: (i) office; (ii) hospital, in-patient; (iii) hospital, out-patient; (iv) home; or (v) other; (e) the diagnosis or diagnostic code prescribed by the minister; (f) where the service is provided in Saskatchewan, the code in the physician payment schedule, chiropractor payment schedule, dentist payment schedule or optometrist payment schedule corresponding to the procedure or treatment performed; (g) where the service is provided outside Saskatchewan, the description of the procedure or treatment performed; (h) with respect to: (i) hospital care, the dates of the first and last visits and the total number of visits; (ii) any service other than hospital visit, the date of each service; (i) the amount charged for each service provided; (j) where the nature of the service is unusual, additional remarks; (k) the name and signature of the person providing service; and (l) where applicable, the name or registry number of the referring practitioner. [Emphasis added] [46] In my opinion, Dr. Huerto’s argument on this part is misplaced. Section 5(1)(j) of the Regulations must be read and understood in the context of the overall physician compensation scheme. Significantly, that scheme includes s. 6(1)(d) of the Regulations which provides that the Government is to make payment for services “in accordance with the physician payment schedule and the assessment rules contained in that schedule”. This is important because, as noted above, the Payment Schedule contemplates that the Government may ask physicians for information beyond what s. 5(1) of the Regulations requires them to include in an account. [47] In other words, s. 5(1)(j) should not be read as meaning the Government is entitled to ask for additional information about service if, and only if, the nature of the service is “unusual”. Rather, it simply stipulates that additional remarks must be included in an account rendered with respect to an unusual service. This does not, in any way, imply the Government can request extra information only in relation to an unusual service. physician’s obligation to include certain material in an account and the Government’s authority to ask for additional information are ultimately two quite different things. [48] The Payment Schedule allows the Government to reduce the payments made on accounts because of the relationship between or among services. As result, it would not be appropriate to read the Schedule as simultaneously denying the Government the right to make the inquiries necessary to determine whether such reductions should be made. In my opinion, the AU code is best characterized, perhaps among other things, as means by which MCIB, on behalf of the Government, can request further information in circumstances where there are concerns about the relationship between the service covered by an account and other services. [49] In short, do not accept Dr. Huerto’s argument to the effect that the Government can request extra information only in relation to “unusual” services. D. Attempt to Regulate Pattern of Practice [50] Dr. Huerto’s final submission is that the Protocol and MCIB’s related use of the AU code are invalid because they amount to an attempt to regulate his pattern of practice. Such matters, according to Dr. Huerto, can only be addressed through JMPRC established pursuant to s. 49.2 of the MCIA. Its relevant parts read as follows: 49.2(1) In this section and in sections 49.3 to 49.9, “committee” means the joint medical professional review committee established by section 49. (2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the committee. [51] Dr. Huerto was the subject of two JMPRCs in the early 1990s. Both examined his high use of ECGs and echocardiograms over short period of time in relation to the same patients. He notes there have been no pattern of practice reviews since the Protocol has been in place. Dr. Huerto argues, as result, that the Protocol should be seen as means of regulating pattern of practice issues. [52] This same argument was presented to the trial judge. He carefully reviewed the evidence and concluded that the Government had not attempted to regulate Dr. Huerto’s pattern of practice by or through the Protocol. Rather, he found the Government had used the Protocol to seek explanations for questionable individual services. He wrote as follows: [250] have considered the positions of the parties and the evidence which was given at the trial, and have concluded on balance of probabilities that the defendant was not attempting to regulate the plaintiff’s pattern of practice through the use of AU codes. To this end, accept the evidence of Mr. Trew that the AU process was designed to be used to seek explanations for questionable individual services based solely on the histories of the patients in question. Had the development of the protocol and the methodology of dealing with the plaintiff’s submissions emanated out of the pattern of practice concern, it would have been easier and less cumbersome to have simply made the JMPRC referral rather than embark upon utilization of the repeated AU process. [Emphasis added] [53] This is finding of fact and can only be overturned on the basis of “palpable and overriding error”. See: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235. As result, see no basis on which this Court can take issue with the conclusions of the trial judge on this point. [54] Further, although it is not necessary to formally resolve the point, note it is by no means clear that the Government is precluded from dealing with pattern of practice-type issues through its use of the AU code or requests for further information about individual accounts. The benefit of the JMPRC process is that it allows physicians’ practices to be reviewed “in bulk” rather than piecemeal or on an account-by-account basis. But, that said, it is not readily apparent why the mere existence of the JMPRC option should preclude the Government from looking into questionable accounts in more individualized way if it chooses to take such an approach. [55] am not persuaded the Government’s use of the AU code can be defeated on the basis it is an attempt to regulate Dr. Huerto’s pattern of practice. E. Limitation Period [56] The Government contends the trial judge erred in failing to find that it had no obligation to pay the vast majority of Dr. Huerto’s claims because those claims were out of time. This argument is framed as cross-appeal and hence must be taken to relate only to that aspect of the trial judge’s decision which awards Dr. Huerto damages in relation to the 16 patients for whom he submitted extra information in 1996. This is so because the Government may cross-appeal only with respect to the results in the court below. It cannot appeal the reasons for those results. [57] The Government’s argument is based on s. 16(1) of the MCIA. It reads as follows: 16(1) Notwithstanding any other Act, the minister is not required to make payment in respect of an insured service in any case in which the account for payment for that service, containing the information required to enable payment to be made for that service under this Act, is received by the minister after the expiration of the period specified for the purposes of this subsection in the regulations. Section 11 of the Regulations sets six months as the period in which claims must be submitted. [58] The Government contends s. 16(1) of the MCIA does not merely oblige physician to submit request for payment within six months of providing service. It argues the MCIA requires that accounts contain specific substantive detail. On this point, it emphasizes that “account” is defined as follows in s. 2(a) of the Regulations: (a) “account” means an account for payment containing the information required to enable the minister to make payment pursuant to the Act with respect to an insured service; [Emphasis added] [59] In the submission of the Government, Dr. Huerto’s accounts did not have the minimum required content because they did not set out the information requested by way of the AU coding. [60] In my opinion, the trial judge acted quite properly in dismissing the Government’s argument on this point. He did so on the basis that Dr. Huerto’s accounts were sufficiently complete to overcome any problem posed by the six month deadline. He wrote as follows at para. 215 of his reasons for decision: am satisfied that the plaintiff’s claims submissions regardless of the form in which they were forwarded to the defendant, universally contain the “information” required under the payment schedule and the heading of “Form of Account”. Indeed, the defendant has not suggested that the requisite informational items set forth under the designation “Form of Account” were not provided. The accounts apparently contained the patient’s name, the patient’s health services number, the patient’s month and year of birth and sex, the location of the service, diagnosis or diagnostic code, and/or service code corresponding to the procedure or treatment performed. In addition, the submissions recorded the date of the service being performed and the amount charged for each service provided. am of the view that where the submission contains this core requisite information, it is claim properly and duly submitted. If, as matter of fact, that submission is provided to the defendant within six months of the provision of the service, then the billing physician has complied with the six-month requirement. Where MCIB, for whatever reason, considers it necessary to seek further information from the physician, using for example the AU code, that does not alter the fundamental fact that the claim was submitted at the time of its initial receipt by MCIB. [Emphasis added] [61] In general terms, this analysis is surely correct. It would be perverse to read the MCIA as requiring that, in order for an account to be paid, every bit of information demanded by the Government through the use of an AU code, or otherwise, must be supplied before the expiration of the six month period established by the Regulations. This interpretation would mean that, in practical terms, an account submitted the day before the expiration of the six month deadline would be voided by the application of the AU code. Indeed, an account submitted well in advance of the expiration of the six month period would be effectively denied if request for further information was not made until at or near the end of the six month time limit, with the result that there was insufficient time for physician to respond before that limit was exceeded. These potential problems are especially troublesome because there is an element of subjectivity in an AU designation and even the most diligent physician might not accurately anticipate when an account or accounts will attract request for extra comment. [62] The Government suggests such concerns are unwarranted because s. 11(2) of the Regulations allows the Minister to extend the six month deadline in certain circumstances. (2) Where the minister is of the opinion that the minister did not receive an account within the period specified in subsection (1) due to factors beyond the control of the person presenting the account, that period is increased to 12 consecutive months immediately following the provision of the insured service. [63] In my opinion, this is not an effective answer to the points made by the trial judge. Section 11(2) only engages in respect of “factors beyond the control of the person presenting the account”. It is difficult to see how failure to provide all the information that the Government believes is required would, at least typically, be beyond the control of physician. If the physician has the information, it obviously could have been made available. Simply put, s. 11(2) seems to be aimed at situations where, for example, physician is delayed in submitting accounts because of matters like illness or computer malfunctions. It does not readily apply to the situation where physician is in possession of extra information but does not submit it. [64] In summary, I do not accept the argument that Dr. Huerto’s claims were barred by s. 16(1) of the MCIA. F. Alternative Remedies [65] The Government also argues, by way of cross-appeal, that the trial judge should not have awarded damages to Dr. Huerto because he failed to take advantage of the appeal procedure established by the Payment Schedule and the Regulations. [66] In advancing this submission, the Government points to the three stage appeal process set out in the Payment Schedule. Under the heading “Appeal Procedures”, the Schedule provides as follows: Appeal Procedures Saskatchewan Health’s assessment of claim may be determined by referring to the explanatory code in the right hand margin of the payment statement. review of the code (see Appendix B) in conjunction with the Assessment Rules should enable physician to determine the reason for particular assessment. If physician does not agree with particular assessment of an account he/she may: 1. Request review of assessment (special forms available) by writing to: The Director, 2. If dissatisfied with this review further review by Medical Consultant may be requested by writing to: Medical Director 3. physician who is not satisfied with the results of the review by Medical Consultant, may appeal the assessment of the account by writing to: The Secretary of the Medical Assessment Board [67] The Medical Assessment Board referred to in the Payment Schedule is established pursuant to the Regulations. They provide that physician who is dissatisfied with the assessment of an account may appeal to the Board. Sections 21 and 22 read as follows: 21 Where physician, dentist or optometrist is dissatisfied with the minister’s assessment of an account for an insured service provided by him or her to beneficiary, he or she may appeal from the minister’s assessment to: (a) in the case of physician, the medical assessment board; 22 On hearing an appeal pursuant to section 21, board may: (a) confirm the decision of the minister; (b) vary the decision of the minister; or (c) substitute its own decision for the minister’s decision. Similar regulations have been in place for the full time frame relevant to this appeal. See: The Medical Care Insurance Payment Regulations, c. S-29, Reg. 14. [68] There are, of course, variety of situations where the courts have declined to exercise their jurisdiction, or found that their jurisdiction should not be exercised, because of the existence of parallel dispute resolution procedures. In the context of judicial review, it is well established that court should not grant prerogative relief if the applicant has failed to pursue an adequate alternative remedy. See: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561. As well, the courts will not act when legislature has established comprehensive non-judicial system of dispute resolution in particular area. See, for example, Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929. [69] However, none of these lines of authority, or any of the other cases cited by the Government, is controlling in the circumstances of this appeal. This is so because the Legislature has expressly provided that the appeal procedure established pursuant to the MCIA does not prejudice a physician’s right to pursue matters in the courts. Section 40(3) of the MCIA reads as follows: (3) Nothing in this section and nothing done thereunder interferes with the jurisdiction of The College of Physicians and Surgeons of the Province of Saskatchewan under The Medical Profession Act, 1981, the Board of Chiropractors under The Chiropractic Act or the Council of the Saskatchewan Association of Optometrists under The Optometry Act, 1985 or prejudices the right of any person to bring an action in court of competent jurisdiction. [Emphasis added] [70] The Government attempts to explain away s. 40(3) by resort to three arguments. First, it suggests the “any person” referred to in the subsection does not include physicians and says the subsection merely is intended to make clear that s. 40 does not remove common law rights to proceed against physicians. In this regard, the Government notes that the MCIA often uses the term “physician” and queries why it employs the word “person” in s. 40(3). [71] see no merit in this argument. Section 40 as whole is concerned with the establishment of appeal procedures with respect to “anything done under or pursuant to this Act or any regulation.” This obviously includes, as central matter, physicians’ complaints about billing issues. As result, the concluding words of s. 40(3) necessarily mean that the existence of an appeal mechanism in relation to billing issues does not preclude physician from attempting to resolve those issues by way of proceedings in the Court of Queen’s Bench. Given the generality of s. 40, see no basis for giving the word “person” in s. 40(3) restrictive meaning which excludes physicians. [72] The Government’s second submission, as understand it, is that s. 40(3) preserves the jurisdiction of the courts and merely speaks to the timing of an action, i.e., the subsection means physician is free to commence an action concerning his or her fees, but may do so only after having exhausted the appeal procedure. see no merit in this argument either. Section 40(3) clearly says that s. 40 does not prejudice the right of any person to bring an action in court. The qualification suggested by the Government is difficult to reconcile with that straightforward language. In my view, the Legislature would have chosen much different wording for s. 40(3) if it had intended to require physicians to exhaust the appeal procedures under the MCIA before resorting to the courts. [73] The Government’s third and final argument with respect to s. 40(3) is that its terms do not appear in Dr. Huerto’s contract, that being the Direct Payment Agreement. Rather, the Government says, the Direct Payment Agreement requires compliance with the appeal procedures by providing as follows: 2. Payment for each service shall be made in accordance with: (a) the Commission’s Payment Schedule and the Assessment Rules contained in that Schedule applicable to the service on the day it was provided; and (b) the Regulations made under The Saskatchewan Medical Care Insurance Act. As result, the Government submits the courts should defer to the appeal procedure under the Act in the same way as they defer to the grievance arbitration provisions in collective bargaining agreements. [74] In my view, this argument is also misplaced. None of the leading cases in the labour area, including St. Anne Nackawic Pulp Paper Co. Ltd. v. Canadian Paper Workers Union Local 219, 1986 CanLII 71 (SCC), [1986] S.C.R. 704 and Weber v. Ontario Hydro, supra, is grounded in legislation which includes provision similar to s. 40(3) of the MCIA. To the contrary, the labour statutes underpinning those cases required that collective agreements provide for “the final and binding settlement”, by arbitration or otherwise, of various kinds of labour disputes. This led the Supreme Court to characterize the labour field as involving comprehensive statutory schemes designed to govern the relationships between employers and employees in that setting. In the present case, s. 40(3) expressly preserves the right to resolve disputes in court and thereby stands entirely at odds with the notion that the appeal procedures in the MCIA should be read as being comprehensive and exhaustive. [75] In the end, therefore, I cannot accept the Government’s submission that the trial judge should have declined to deal with Dr. Huerto’s claim because Dr. Huerto had not fully pursued possible appeals to the Medical Assessment Board. [76] The Government takes no issue with the substance of the trial judge’s decision requiring it to pay Dr. Huerto 30% of the value of the claims submitted in relation to 16 patients in April of 1996. Its only objections were that the claims in relation to those patients had been forwarded too late and that, in light of the appeal provisions under the MCIA, the trial judge should have declined to deal with them in any event. Given that the Government’s arguments on these two points have not succeeded, the trial judge’s decision must stand. V. Conclusion [77] I conclude that both Dr. Huerto’s appeal and the Government’s cross-appeal must be dismissed. [78] In view of the failure of both the appeal and the cross-appeal, there will be no order as to costs in this Court. The trial judge awarded costs to Dr. Huerto in the court below on the basis that the actions of both parties had contributed to the problems underlying the litigation and, most significantly, that Dr. Huerto had encountered at least some success in his quest for damages. There is no reason to interfere with his decision on that point. [79] Finally, as did the learned trial judge, wish to underline the advisability of the Government and Dr. Huerto searching for some cooperative basis on which to resolve the situation they now face. It might be, for example, that test case or two would allow the Medical Assessment Board to provide some substantial clarification of the outstanding issues. Creative thinking might reveal other useful approaches for expeditiously sorting out the points in contention between them. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of August, A.D. 2008. “Richards J.A.” Richards J.A. concur “Richards J.A. for” Hunter J.A. concur “Richards J.A. for” Wilkinson J.A.
This appeal arises from a dispute between the appellant, Dr. Huerto and the respondent Government of Saskatchewan, over the payment for medical services provided by Dr. Huerto to his patients. Over a period of approximately 10 years, the Government withheld payment in relation to what eventually amounted to some 12,000 of the appellant's accounts. The Government indicated through the use of a billing code, that the accounts would not be paid until further information was provided. The appellant believed the use of the billing code was unlawful and chose not to provide additional information. He started an action in the Court of Queen's Bench to compel payment of his accounts. His claim was largely dismissed on the basis that the action was premature. The appellant appeals from the Queen's Bench ruling and the Government cross-appeal in relation to the limited aspect of the case in which Dr. Huerto enjoyed success. HELD: Appeal and Cross-appeal dismissed.  1) Section 17(1)(c) of The Saskatchewan Medical Care Insurance Act is to the effect that the intention and purpose of the Act is not to establish a medical care insurance plan under which 'the exercise of professional judgment by physicians is in any way diminished'. This broad statement of principle should not be read so aggressively as to mean the Government, as the payor in a publicly funded health care system, has no right to ask questions about the accounts presented for payment by physicians. The Government has not denied payment of the appellant's accounts. Nor has it received the requested information from the appellant. The actions (the Protocol) taken by the Government cannot be characterized as an amendment of the Payment Schedule. The Protocol is an administrative tool which sets out the situations in which the appellant will be asked for further information about the provision of specific services. This is fully in line with the terms of the Schedule. 2) Section 5(1) of the Regulations should not be read as meaning the Government is entitled to ask for additional information about a service if, and only if, the nature of the service is 'unusual'. Rather, it simply stipulates that additional remarks must be included in an account rendered with respect to an unusual service. This does not imply the government can request extra information only in relation to an unusual service. A physician's obligation to include certain material in an account and the Government's authority to ask for additional information are ultimately two quite different things. 3) The Court does not accept that the appellant's claims were barred by s. 16(1) of the Act. It would be perverse to read the Act as requiring that, in order for an account to be paid, every bit of information demanded by the Government through the use of a billing code, or otherwise, must be supplied before the expiration of the 6 month period established by the Regulations. An account submitted the day before the expiration of the 6 month deadline would be voided by the application of the billing code. An account submitted well in advance of the expiration of the 6 month period would also be effectively denied if a request for further information was not made until at or near the end of the six month time limit, with the result that there was insufficient time for a physician to respond before that limit was exceeded. These potential problems are especially troublesome because there is an element of subjectivity in the application of the Protocol and even the most diligent physician might not accurately anticipate when an account or accounts will attract a request for extra comment. 4) The Court cannot accept the Government's submission that the trial judge should have declined to deal with the appellant's claim because the appellant had not fully pursued possible appeals to the Medical assessment Board. The Legislature in s. 40(3) of the Act has expressly provided that the appeal procedure established pursuant to the Act does not prejudice a physician's right to pursue matters in the courts. It stands entirely at odds with the notion that the appeal procedures in the Act should be read as being comprehensive and exhaustive.