CHRISTOPHER S. JACKMAN FIRST APPLICANT And: DR. CHRISTOPHER S. JACKMAN PROFESSIONAL MEDICAL CORPORATION SECOND APPLICANT And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2019 NLSC 55

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jackman v. Newfoundland and Labrador , 2019 NLSC 55 Date : March 6, 2019 Docket : 201801G2096 Between: CHRISTOPHER S. JACKMAN FIRST APPLICANT And: DR. CHRISTOPHER S. JACKMAN PROFESSIONAL MEDICAL CORPORATION SECOND APPLICANT And: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND AND LABRADOR RESPONDENT Before: Justice William H. Goodridge Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: May 25, 2018 June 22, 2018 Appearances: Bernard M. Coffey QC Appearing on behalf of the Applicants Rolf Pritchard, Q.C. Appearing on behalf of the Respondent Authorities Cited:

CASES CONSIDERED: Coffey v. Newfoundland and Labrador, 2011 NLTD(G) 99; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 STATUTES AND REGULATIONS CONSIDERED: Medical Care and Hospital Insurance Act, S.N.L. 2016 c. M-5.01; MedicalCare Insurance Insured Services Regulations (O.C. 96-132) TEXTS CONSIDERED: R. Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis. 2014) REASONS FOR JUDGMENT GOODRIDGE, J.: INTRODUCTION [1] Christopher Jackman is an ophthalmologist. He maintains a private clinic at 427 Newfoundland Drive, St. John’s.

From thisclinic, using new technologies and specialized medical equipment, Dr. Jackman offers various refractive services, which include medicalservices associated with the replacement of the eye's natural lens with an intraocular implant. The medical services are invoiced directlyto patients when ‘not insured’ under the province’s Medical Care Plan (MCP). In simple terms, services that are ‘not insured’ are anyservices that are not medically necessary. A dispute has arisen between Dr.

Jackman and John Haggie, M.D., the Respondent’s Ministerof Health and Community Services, as to the legality of invoicing patients in situations where insured and ‘not insured’ services overlap. The overlap is most obvious in situations where Dr. Jackman, as part of a refractive service, replaces a cloudy eye lens (cataract) with anintraocular implant (artificial plastic lens). Clinically significant cataracts, the replacement of which is an insured service under MCP,can coexist with pre-existing refractive errors that may not be insured under MCP. [2] The Minister says that Dr.

Jackman is not at liberty to offer, from his private clinic under a user-pay arrangement, any typeservice that includes the removal and replacement of cataracts. The removal and replacement of cataracts are insured services underMCP, and coded (on the MCP claim form) as medical services that must occur within hospitals. On February 1, 2018, the Ministerwrote to Dr.

Jackman advising, inter alia: “As you do not have the requisite approval to conduct cataract surgery, which is a hospital-based insured service, in your private clinic, you are to immediately cease the provision of this insured service in your clinic.” [3] On March 28, 2018, Dr. Jackman filed the current application with this Court, seeking the following declarations: 1. There is no legislative prohibition of removing a cataractous lens from a patient’s eye in a private medical clinic (i.e. outside ahospital); 2.

The removal by an ophthalmologist of a cataractous lens from a patient’s eye in a private medical clinic is not an insured service forpurposes of the (Act) and the regulations; and 3. The following services, when provided by an ophthalmologist in a private medical clinic, are not insured services: i. Performing Optical Coherence Biometry (IOL Master) and Auto-Refraction; ii. Performing Corneal Vector Analysis and Astigmatism Planning; iii. Performing Optical Coherence Tomography of Anterior Segment; iv. Performing Corneal Topography; v. Performing Femto Laser Assisted Surgery; vi.

Providing and Implanting Aspheric Intraocular Lenses; vii. Providing and Implanting Toric Intraocular Lens; viii. Providing and Implanting Multifocal Intraocular Lens; and ix. Providing Post-surgical Refractive Lens Kit ISSUE [4] The Minister agrees that the services listed above as 3(

i) to (ix), which do not involve removal and replacement of cataracts,

are not insured services under MCP, and Dr. Jackman is at liberty to offer these services from his private clinic under a user-pay arrangement. These are elective procedures. They are not medically necessary procedures. Mostly these services are lifestyle choices to eliminate the need for eyeglasses or to upgrade vision. [ 5 ] With that concession by the Respondent, the issue narrows to whether Dr. Jackman is entitled to the declarations listed above as 1 and 2.

BACKGROUND [ 6 ] When a patient has a clinically significant cataract, its removal and replacement with a plastic artificial lens, is a medically necessary procedure and it is covered as an insured service under MCP. However, other services that are ‘not insured’ can be provided contemporaneously with cataract surgery, such as the replacement of the eye’s natural lens with a more advanced intraocular lens. MCP will cover the standard spherical intraocular lens but other more advanced intraocular lens, such as aspheric, toric, and multifocal, are not covered by MCP.

There are also conditions that cannot be corrected with cataract surgery, using the standard spherical intraocular lens covered by MCP. For example, astigmatism and other higher order optical aberrations, such as asphericity, are correctable only with additional uninsured procedures. These uninsured procedures, which Dr. Jackman can provide, involve either the use of a special refractive lens, incisional refractive surgical procedures, refractive laser procedures, or some combination of these techniques, depending on the complexity of the problem.

Incorporating any of these refractive treatments into a standard cataract procedure adds multiple extra steps or services. Dr. Jackman has been providing all these services from his private clinic and invoicing patients. However, perhaps in an effort to stay on side with the spirit of the MCP, Dr. Jackman has intentionally not invoiced for the cataract removal component of his work. [ 7 ] The coexistence of insured and ‘not insured’ services, falling within the same general procedure of lens removal and replacement, illustrates the issue that brought the parties to court seeking the declarations.

POSITIONS OF THE PARTIES [ 8 ] The opposing positions taken by Dr. Jackman and the Minister arises from differing

interpretations of the Medical Care and Hospital Insurance Act , S.N.L. 2016 c. M-5.01 and the Medical Care Insurance Insured Services Regulations (O.C. 96-132). [ 9 ] The regulations, passed under the authority of the Medical Care and Hospital Insurance Act , prescribe medical services that are insured services, and those that are ‘not insured’ services.

Section 3(

a) of the regulations prescribes that insured services include “ all services properly and adequately provided by physicians to beneficiaries who are suffering from an illness requiring medical treatment or advice”. [1]

Section 4 of the regulations lists several ‘not insured’ services and adds the default clause (s. 4(1)(y)) that any “services not within the ambit of

section 3” are ‘not insured.’ A relevant clause included in the list of ‘not insured’ services, relevant here because it is part of the interpretive dispute, is s. 4(1)(x.1). It provides: s. 4(1)(x.1) notwithstanding paragraph 3 (a), surgical, diagnostic or therapeutic procedures not provided on the coming into force of this paragraph in facilities other than those listed in the

Schedule to the Hospitals Act or approved by the commission under paragraph 3 (d); [2] [ 10 ] Section 4(1)(x.1) came into force January 1998 and was repealed June 15, 2018. It is still relevant for purposes of this application, since the declarations sought by Dr. Jackman relate to the time prior to June 15, 2018. [ 11 ] As observed by Orsborn, C.J. (as he then was) in Coffey v. Newfoundland and Labrador , 2011 NLTD(G) 99, s.4(1)(x.1) does not make for easy reading. A suggested

interpretation of s.4(1)(x.1) was provided by Orsborn, C.J. at paragraph 13 of Coffey : [T]o state [s.4(1)(x.1)] another way: For otherwise insured services performed in private clinics, only those procedures performed in private clinics as of January 1998 are insured services. [ 12 ] Dr. Jackman argues that a reasonable

interpretation of ss. 3(

a) and 4(1)(x.1) leads to the logical inference that removal and replacement of a cataract , at a private clinic, is ‘not insured.’ The argument is that, while removal and replacement of a cataract qualifies as an insured service under s. 3(

a) of the regulations, s. 4(1)(x.1) disqualifies it when performed at a private clinic. The service was not available from any private clinic before January 31, 1998, and is therefore not grandfathered as an insured service under s.4(1)(x.1). Accordingly, Dr. Jackman argues, the service is ‘not insured’ if provided in a private clinic. [ 13 ] The Minister argues that a reasonable

interpretation of s. 3(

a) leads to the logical inference that any refractive service that involves removal and replacement of a cataract is an insured service regardless where it is provided. It is a service to beneficiaries (patients) who are suffering from an illness that requires medical treatment.

The Minister rejects the notion that s.4 (1)(x.1) of the regulations, by grandfathering procedures performed in private clinics as of January 31, 1998, as insured services, automatically made procedures not performed in private clinics as of January 31, 1998, as ‘not insured’ services. [ 14 ] Separate from the debate over whether the services are insured, or not, under MCP, is the question of whether removal and replacement of a cataract is unlawful if provided from a private clinic. Dr. Jackman notes that there is no legislated prohibition against

provision of these services from a private clinic, and argues that a finding that the services are ‘not insured’ does not mean that provision of the services is unlawful. It merely means that the physician cannot be paid by the MCP, and must invoice patients directly. [ 15 ] On June 15, 2018, the question was answered by an amendment to the regulations requiring that the removal and replacement of a cataractous lens occur only at a hospital or a facility designated by the Lieutenant Governor in Council. The regulation states: 3.

(2) For greater certainty, the medically necessary removal and replacement of a cataractous lens by any procedure is an insured service and shall be performed in a hospital or a facility designated by the Lieutenant-Governor in Council. (Reg. 47/18). [ 16 ] Despite this amendment, and despite the Respondent’s concession that the regulations (at most) create only a financial prohibition, the parties still requested that the Court make a decision on the declarations sought.

ANALYSIS Is there any legislative prohibition of removing a cataractous lens from a patient’s eye in a private medical clinic, i.e., outside a hospital? Prior to June 15, 2018, there was no legislative prohibition of removing a cataract from a patient’s eye in a private medical clinic. The only legislative prohibition was against charging or collecting a fee in excess of the amount payable under the Medical Care and Hospital Insurance Act or the regulations. Section 7 (1) of the Act provides: 7.

(1) A practitioner who provides insured services, whether or not he or she has made an election under

section 8 which is in effect, shall not charge or collect from a beneficiary a fee for those insured services in excess of the amount payable under this Act and the regulations. [ 17 ] The Respondent initially argued that the claim process for payment under MCP had the effect of requiring that cataract removal occur only in hospitals; and making it unlawful if performed in a private clinic. The argument is based on following logic: • Section 12 (1) of the Act allows the Minister to establish terms and conditions for payments made to physicians under the MCP; • The Minister created terms and conditions that included a fee

schedule [3] and claim process for payments; • The claim process requires the physician to include a hospital facility code on the claim form when seeking payment for removal and replacement of a cataract; and • Without the hospital facility code the claim is rejected for payment. [4] [ 18 ] During the hearing, counsel for the Respondent conceded that “to the extent that there is a prohibition [against removal and replacement of a cataractous lens at a private clinic], it is a financial one.” I agree that there is no legislative prohibition and that the only possible obstacle to providing the service is the issue of payment for the service.

The requirement of a hospital code on the claim form may create an obstacle to payment when the procedure is done outside a hospital, but it does not make it unlawful to provide the service outside a hospital. The rejection of the claim, without a hospital code, creates financial barrier for the ophthalmologist, and nothing more. There was no law (prior to June 15, 2018) requiring that the procedure of removing a cataract occur in a hospital.

Is the removal of a cataractous lens in a private medical clinic an insured service for purposes of the Medical Care and Hospital Insurance Act and the regulations? [ 19 ] I find that the removal of a cataract from a patient’s eye in a private medical clinic was an insured service for purposes of the Medical Care and Hospital Insurance Act and the regulations, prior to June 15, 2018. [ 20 ] Dr.

Jackman argued that the confusing wording of s. 4(1)(x.1) of the regulations had the effect of designating the removal of a cataract, when done in a private clinic, as ‘not insured.’ The argument is based on following logic: •

Section 3(

a) of the regulation designates the removal of a cataract an insured service; • Section 4(1)(x.1) modifies the effect of s.3(

a) by grandfathering certain medical procedures offered from private clinics before January 31, 1998 (i.e., recognizes them as insured services); • If a procedure is currently available in a private clinic, but was not available from any private clinic before January 31, 1998, then it cannot be recognized as an insured service under s. 4(1)(a); • Removal of a cataractous lens was a procedure not available from any private clinic before January 31, 1998; and • If removal of a cataractous lens cannot be grandfathered under s.4(1)(

a) as an insured service, then it must be an uninsured service. [ 21 ] I do not agree with the Applicants’ logic. I reject the Applicants’ argument that the grandfathering of private clinic medical procedures from pre- January 31, 1998, as insured services, had the effect of declaring private clinic medical procedures post- January 31, 1998, as ‘not insured’ services. In my view that would be an absurd result and would be an

interpretation contrary to clear wording of s.3(a).

[22] The legislature could not have reasonably intended to remove necessary medical services (such as cataract removal) frominclusion as an insured service. A cataract is an illness requiring medical treatment and that does not change based on where theprocedure is performed. As stated by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 atparagraph 27: “It is a well established principle of statutory

interpretation that the legislature does not intend to produce absurdconsequences.” Section 4(1)(x.1) is silent on the status of procedures performed in private clinics after January 31, 1998; the silence wasintentional; the silence cannot have the effect of deeming procedures performed in private clinics after January 31, 1998, as ‘not insured.’ As stated by Ruth Sullivan in her text, Sullivan on the Construction of Statutes, 6th edition, (R. Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014)) at p. 229: “[T]he silence was deliberate: the thing is not mentioned because the legislatorintended to exclude it.” [23] Under s.2 (

f) of the Medical Care and Hospital Insurance Act “insured service” is defined as “the medical services and hospitalservices so defined under the regulations.” Under s.47(

a) of the Act, the Lieutenant Governor in Council may make regulationsprescribing which services are insured services for purposes of the Act. Under s.3(

a) of the regulations, insured services include “allservices properly and adequately provided by physicians to beneficiaries who are suffering from an illness requiring medical treatment oradvice.” Both sides agree that a cataract is an illness requiring medical treatment. I find that it was an insured service, even if providedfrom a private clinic. The June 15, 2018, amendment to the regulations (reproduced above) altered that situation and required that themedically necessary removal and replacement of a cataractous lens be performed in a hospital or a facility designated by the Lieutenant-Governor in Council.

DECLARATION [24] It is hereby declared that: 1. Prior to June 15, 2018, there was no legislative prohibition of removing a cataractous lens from a patient’s eye in a private medicalclinic (i.e., outside a hospital); 2. Prior to June 15, 2018, the removal by an ophthalmologist of a cataractous lens from a patient’s eye in a private medical clinic wasan insured service for purposes of the Medical Care and Hospital Insurance Act and the regulations; 3. The following services, when provided by an ophthalmologist in a private medical clinic, are not insured services: i.

Performing Optical Coherence Biometry (IOL Master) and Auto-Refraction; ii. Performing Corneal Vector Analysis and Astigmatism Planning; iii. Performing Optical Coherence Tomography of Anterior Segment; iv. Performing Corneal Topography; v. Performing Femto Laser Assisted Surgery; vi. Providing and Implanting Aspheric Intraocular Lenses; vii. Providing and Implanting Toric Intraocular Lens; viii. Providing and Implanting Multifocal Intraocular Lens; and ix. Providing Post-surgical Refractive Lens Kit. COSTS [25] The parties requested that the Court reserve on costs to allow further submissions.

The further submissions shall be in writing,and filed by the Applicants within 21 days, and by the Respondent, within 28 days. _____________________________ william h. goodridge Justice