After receiving a personal injury claim settlement, you might discover that you are not the only beneficiary. Many clients are surprised to learn that a third party – such as the Ontario Health Insurance Plan (OHIP) – might also be entitled to payment of its own claim.
This is known as “subrogated interest”.
It is important for injury victims to understand what subrogated interest is and how it can relate to their case. In this article, I will answer some common questions about subrogated interest and discuss why, when, and how OHIP claims it:
What Is Subrogated Interest?
Subrogation is a legal right afforded to insurance companies to recover the amount they have paid for a loss by suing the party that caused the loss.
In certain situations, OHIP will cover healthcare costs associated with things like physician and hospital services, diagnostic testing and imaging, and more. If these are necessary as a result of someone else’s wrongdoing, OHIP is entitled to pursue compensation.
In their article on this topic, the Ontario Trial Lawyers Association (OTLA) presented this example: Imagine Mr. A was the victim of a blundered surgery. He would need to seek subsequent medical services, which OHIP would provide, and then sue the doctor who performed the initial operation (Dr. B) for the damage. Since Dr. B was responsible, OHIP can make a claim and expect to be reimbursed for the expenses associated with Mr. A’s care.
In the majority of cases, OHIP will essentially “piggyback” on a claimant’s lawsuit. Neither OHIP nor the claimant will recover anything if the case is not successful, however OHIP can pursue financial reimbursement if you reach a settlement.
What Costs Can and Can’t OHIP Recover through Subjugated Interest?
OHIP can recover healthcare and treatment costs stemming from a range of things like slips and falls, medical malpractice or professional negligence, class action, product liability or manufacturing defects, and boat, air, or rail accidents.
Services for which OHIP can be reimbursed include:
- Physician treatments
- Hospital visits and stays (in/out patient, acute, and chronic care)
- Out-of-province or out-of-country medical services
- Extended care
- Professional services like nursing, occupational therapy, physiotherapy, speech-language therapy, and others
- Personal and attendant care services
- Long-term care accommodation
- Community support
In addition to being compensated for services already provided, OHIP can seek reimbursement for the costs of future OHIP-insured services such as those administered by a physician or hospital. What OHIP can’t claim for are future non-professional healthcare or benefit services like personal support or homecare. Your lawyer should factor these expenditures into your personal claim for damages so you can purchase these services directly once you receive the funds.
Can OHIP Recover Costs Associated with Automobile Accidents?
OHIP cannot make subrogated interest claims related to motor vehicle accidents. It is limited by the Insurance Act and Health Insurance Act, the latter stating that:
“…the Plan is not subrogated to the rights of the insured person, as against a person who is insured under a motor vehicle liability policy issued in Ontario, in respect of personal injuries arising directly or indirectly from the use or operation…”
In other words, OHIP can’t advance a subrogated interest claim against someone insured under an Ontario motor vehicle liability policy for injuries arising from the operation of an automobile. This is because insurers already pay an annual levy of around $150 million to OHIP to specifically address car accident-related injuries. Based on the number of recent changes to the medical and rehabilitation benefits limit afforded to accident victims under the no-fault accident benefits portion of their automobile policy, it is very likely that this levy is not nearly enough to cover the expected health care services OHIP can expect to cover from car accident victims when their benefits run out!
Can Other Parties Besides OHIP Make Subrogated Interest Claims?
In addition to OHIP, other groups that might be able to claim subrogated interest include:
- The Workplace Safety and Insurance Board (WSIB)
- The Criminal Injury Compensation Board (CICB)
- Group Insurance Policies
Applicability varies on a case-by-case basis, and there are important limitations.
For example, while OHIP can recover costs through subrogation with “quasi motor vehicle cases” (those where there are both motor vehicle and non-motor vehicle defendants), the Insurance Act expressly prohibits Group Insurance Policies from ever doing so.
Taking Subrogated Interest into Account in Your Claim
When a third party like OHIP covers costs associated with treatment and care after an injury, it makes sense for them to seek compensation when you receive funding for your recovery.
Your lawyer should work with you to understand if subrogated interest is applicable in your case and, if it is, ensure you are prepared by taking all relevant costs into account. This will enable you to reimburse all relevant third parties and cover your own ongoing expenses after you are awarded your settlement.
If you have sustained a personal injury at another party’s fault, please contact me and my team of experienced personal injury lawyers for a free consultation.
More on Personal Injury from Roger R. Foisy:
- 3 Reasons the Pain and Suffering Cap Should Be Abolished
- Personal Injury Potential Settlement Values: Scarring and Disfigurement of the Face and Neck
- How Speech-Language Pathologists Help Traumatic Brain Injury Victims