A CASE FOR NON ASSIGNMENT - INVASION OF PRIVACY?

Kenneth Glasner, Q.C.

The recent decision of the Ontario Court of Appeal in the case of Jones v. Tsige, 2012 ONCA 32, together with the recent escalation of disputes involving dentists and insurance companies (sometimes referred to as insurer, or a third party carrier) prompted me to write this article. The issues raised by this and the related cases are many and varied, each of concern to dentists - issues of assignments, privacy, public interest, and the conduct and authority of insurers.

As one who has acted for dentists over the past two decades I welcome the Jones decision. The decision deals with the civil wrong of tort for invasion of privacy. It has been dubbed the cause of action of, "intrusion upon seclusion" - intrusion into personal matters such as finance or health records amongst others.

The Jones decision breaks new legal ground and aligns with a body of case law, both Provincial and Federal privacy legislation and the recognition by the Supreme Court of Canada of the protection of privacy under s. 8 the Canadian Charter of Rights and Freedoms.

The decision impacts on the dental community in its relationship with third party carriers, especially when dealing with assignments. An assignment is an act whereby one transfers to another their interest in a right or property. In this case the insurer has a contractual obligation to pay the patient, as a beneficiary, for covered dental benefits. Rather than paying the dentist directly, the patient (with the agreement of the dentist) 'assigns' the benefit directly to the dentist. Notwithstanding this direction, the patient remains obligated for the entire account.

It is important to understand there is no contractual relationship between the patient's insurance company and the dentist. The contractual relationship is usually between the patient/insured and the insurer or between the insurer and the patient's employer, for the benefit of the patient/employee.

In my experience there appears to have been a growing tendency among insurers to compel dentists to provide access to complete patient files for their review. This process usually involves the use of the insurer's staff, including its own dental consultant who may not be licensed to practise in the province where the investigation is undertaken.

The following are examples of insurers' conduct which have come to my attention either directly or indirectly:

Sending a private and confidential letter to the dentist's colleague in a small town asking the colleague to x-ray the patient.
Sending a letter to the patient suggesting she change dentist and giving them names of other dentists.
Refusing to pay for a caries on the lingual surface because no bite wings were taken.
Refusing payment altogether instead of repaying the correct amount where the professional mistakenly claimed for a 3 surface filling when in fact it was a 2 surface filling.
Sending out a follow-up letter to a patient, together with a consent to release ALL personal information for use by the insurer. The letter contains the following statements:

The purpose of these reviews is to ensure that claims submitted under your dental plan by the dentist are for services rendered and that the billing for those services complies with _____________ dental fee schedule.

In this case the insurer seeks a review of claims made in years past.
Threatening a dentist as follows:
If no response is received by the aforementioned date we will initiate a recovery of $_____________ by deducting this amount from your future payments summaries commencing __________________.
This involves monies due and owing on behalf of other patients to the professionals.
Threats of this nature:
Please be advised in the event we do not receive this information as suggested we communicate our concerns to the________________ regulatory body.
Notwithstanding suggestions the insurer has consent forms from the patient and refuses to provide those consent forms to the dentist, the insurer persists over a lengthy period to obtain additional and greatly expanded consents from the patient to review all of the patients files including those confidential matters as between patient and dentist which are not subject to the claim.

The final example shows the difficulties when the regulatory body proceeds on a "complaint?" on the basis of unsupported allegations. As stated in Steinecke, A Complete Guide to Regulated Health Professions Act, Canada Law Book at page 5-3:

One should look to the intent of the writer and to whether there is sufficient content to the concern for the member to respond and for the panel to consider.

In certain circumstances the regulatory body itself may be considered as a party to insurer's conduct where they accept a complaint from an insurer based on unsupported allegations (simply allegations) and thus become involved in uncomfortable litigation or an unsubstantiated search and seizure.

The regulatory body may quote their duty to protect the public interest - but what is the public interest when the insurer uses threats of a complaint to the regulatory body for its economic benefit - i.e. for claw back purposes. What is, "public interest" that the regulatory body is pursuing in such a case? Can it be precisely defined? In Stewart v. Canadian Broadcasting Corp. 1997 CAN LII 12318 (ONSC) the Court said:

"Public interest" is a phrase that is highly subjective and when standing alone, it is therefore of little definitional import.

Regulatory bodies have accepted the importance of confidentiality. In British Columbia, the College of Dental Surgeons specifically sets out on its website for its registrants and for the public its position on confidentiality and privacy compliance. To quote in part:

Patient information and dental records contain sensitive personal information and must be kept in confidence. A patient's personal information and dental records must be protected from any unauthorized use or disclosure, except as required by law of where the patient has given their express consent, ideally in writing.

Acting in the public interest, the regulatory body has a duty to protect against unwarranted intrusions of third party carriers into confidential health information and minimize unnecessary complaints and actions which are advanced for a self serving or collateral purpose. It is also not in the public interest to have a professional put under such economic and professional pressure in the absence of clear and cogent evidence of fraud or other misdeed.

If there is a right to review confidential files it ceases when the insurer has paid the dentist and the matter is thus brought to an end and cannot be reviewed years later. The assignment has been completed when the third party carrier pays the dentist. If there is a right, in the absence of a legislative provision or case authority, it must be found within the assignment signed by the patient waiving their right. A review of a number of assignments indicates that the assignment is specific. It restricts any review to only the claim and does not permit access to the complete confidential file. For example it is limited to the treatment performed on January ______, 2012 on a, "2 surface filling on 4.5" - and nothing else.

Another important issue is whose treatment plan is it - the patient on the advice of the dentist or one dictated by the insurer? In many provinces, conferring a diagnosis is a licensed act confined to a dentist or physician, not an insurer.

The last edition (1995) of the CDA Guideline for Prepaid Dental Forms (which may be in the process of updating) includes the following:

What we must do is conduct our practices as we would in absence of a third party. The patients' treatment must be based on those procedures necessary to provide optimum dental health for our patients. [not the insurer's]

(Page 1)

To tailor our treatment to benefit plans puts our profession in a very poor light and renders us no more than technicians - a situation which will create more and more interference between the profession and pre-paid carriers.

(Page 1)

2. The Dentist-Patient Relationship

This an inviolable contract between two parties that does not permit the intrusion of a third party except by mutual consent of both parties, or by legal requirement.

(Page 10)

CDA does not recommend the assignment of benefits. Dentists' members should be reminded of the potential problems of assignment.

(Page 11)

The dentist on assignment is more vulnerable to improper requests from the carrier. Your rights and legal obligations are outlined under the provincial dental legislation. By fulfilling or complying with improper carrier request, the dentist involved is often surrendering these rights and/or compromising or even jeopardizing the dentist's legal position with the Dental Regulatory Authority of the Province. Any such request should be reported to the Dental Regulatory Authority of the Province.

(Page 11)

The Canadian Dental Association does not recognize the right of third parties to approve dental treatment, or to suggest courses of treatment, which are alternate to those, recommended to the patient by the dentist.

(Page 14)

The issue of privacy has been viewed by the court in a number of decisions including in McInerney v. MacDonald, 2 S.C.R. 138 at pages 138-39:

The physician-patient relationship is fiduciary in nature and certain duties arise from the special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient. The doctor also has an obligation to grant access to the information used in administering treatment. This fiduciary duty is ultimately grounded in the nature of the patient's interest in the medical records.

(emphasis added)

In British Columbia the Privacy Act codifies the tort of invasion of privacy as follows:

1(1) It is a tort, actionable without proof of damage, for a person willfully and without claim of right, to violate the privacy of another.

With respect, insurers should be limited to whether or not the process or procedure claim was done, not whether it was necessary. It is the dentist's professional duty to diagnose and inform, then carry out treatment to which the patient has agreed. This should not permit the insurer to attempt to substitute its views for the dentist's professional judgment.

Confidentiality is one of the foundations of a health professional's relationship with their patient. A dentist allowing third party carrier access to information which has not been specifically authorized by the patient could lead to disciplinary measures against the dentist by her regulatory body and a loss of patient trust. Regulatory bodies must play an active role in assuring that their registrants are familiar with the boundaries of confidentiality when dealing with third parties. Regulatory bodies and dental associations should consider forming a set of protocols to assist their members who may be faced with this situation. A few key elements of a protocol for consideration are:

Require the insurance company to provide a copy of the written consent containing the limited right of access to specific information and the reason for its inquiry.
Require the dentist to redact her file limiting information provided to the entry or entries relating to the specific claim as well as limiting access to radiographs dealing with the specific tooth or teeth in question and have the insurance company pay an appropriate fee for each file.

It is important to remember that rights to review files by a private third party carrier are not the same rights as one enjoyed by profiling of medical practitioners pursuant to provincial legislation.

Where insurers may have conducted themselves inappropriately and clearly not in the public interest (they have no duty to act in the public interest) industry regulatory bodies and dental regulators should involve themselves for it is these regulatory organizations which act in the best interest of responsible dentists and for the public.

Cobbled together by:
Kenneth J. Glasner, Q.C.
glasnerqc@telus.net
http://glasnerqc.tripod.com

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