Written By: Lindsay Charles, Partner, and Cassandra De Marco, Articling Student
You have completed your claim and have received your settlement, but there are various fees and deductions that you were not expecting. Of course, there are lawyer fees including costs and disbursements, but there are also OHIP subrogated interests. But why might OHIP receive part of your personal injury claim settlement?
What is a subrogated interest?
Subrogation is the legal right for a third party, such as OHIP, to recover the monetary value they have contributed provided these services were required due to someone else’s wrongdoing.
When pursuing a personal injury claim and medical care is required, OHIP will cover various health services like diagnostic testing. As these services were made necessary by the negligence of the tortfeasor, OHIP has the right to receive compensation. This is a subrogated interest.
For OHIP to receive reimbursement, the claim must be successful. Whether that be because the case was won in court, or if a settlement is reached outside of court, OHIP has the right to pursue compensation. These costs are received from the at-fault parties insurance companies.
What services can OHIP be reimbursed for?
There are various services for which OHIP can be reimbursed for. These include doctor’s appointments, hospital visits, out-of-province, and out-of-country care, extended and long-term care, as well as future costs of care. OHIP cannot be reimbursed for non-professional healthcare, such as personal support.
There are only certain claims that OHIP can pursue compensation for. OHIP can have a subrogated interest in cases including medical malpractice and other professional negligence cases, product liability, slip and falls, class actions, boat, air, or rail accidents, dog bites, municipal liability, and assaults. That means if judgement is ruled in favour of the plaintiff in any of these cases, OHIP can pursue compensation. Notice that OHIP cannot recover costs associated with automobile accidents.
Why can’t OHIP recover costs associated with automobile accidents?
There are limitations to subrogation interests. As such, OHIP does not have a right to subrogated interests for automobile accidents. This is because of the limitations placed by the Insurance Act and the Health Insurance Act. Each of these Act’s state that subrogated interests are not able to be recovered in automobile accidents due to the annual premium paid by Ontario auto insurers to OHIP.
These premiums cover costs associated with care and treatment for injuries due to automobile accidents. As such, OHIP is unable to double-dip in compensation and therefore is not eligible to receive subrogated interests.
Can other parties besides OHIP make subrogated interest claims?
There are other groups that can also make subrogated interest claims. These include the Workplace Safety and Insurance Board (WSIB), the Criminal Injury Compensation Board (CICB), and some group insurance policies.
The ability for these groups to make a subrogated interest claim depends on the specific case and there are limitations. For example, group insurance policies are prohibited from making a subrogated interest claim in all automobile accidents under the Insurance Act.
Subrogated interest is difficult to understand and that is why it is important to have a lawyer who fully understands the law. To better understand subrogated interest claims, speak with your lawyer to see whether your claim may be subjected to these claims upon judgement.
If you or a loved one sustained an injury at the fault of another, contact our office for a free consultation to discuss your next steps.