The applicant/appellant physician, Dr. Fialkov, was unsuccessful in seeking judicial review of a decision made by the Health Services Appeal and Review Board (HPARB). The HPARB dismissed Dr. Fialkov’s appeal from a decision of the Ministry of Health. The Ministry had decided that Dr. Fialkov improperly charged a patient for an insured service

Administrative law – Decisions reviewed – Health Services Appeal Board – Judicial review – Legislative compliance – Standard of review – Correctness – Physicians and surgeons – Billing matters – Records

Fialkov v. Ontario (Health Services Appeal and Review Board), [2023] O.J. No. 3618, 2023 ONSC 4244, Ontario Superior Court of Justice, August 14, 2023, H.E. Sachs, P. Sutherland and P.B. Schabas JJ.

The appellant/applicant, Dr. Fialkov, performed a septorhinoplasty on a patient at a private facility in 2019. She had a broken nose and a septoplasty procedure was medically necessary and therefore an insured service pursuant to the Ontario Health Insurance Plan (OHIP). The patient also wanted a rhinoplasty to alter the appearance of her nose, which was not medically necessary. Dr. Fialkov charged $10,550.52 for the rhinoplasty procedure. He did not claim the amount for the septoplasty even though it was an insured service.

The Ministry of Health contacted Dr. Fialkov in January 2021 asking about the procedure. The Ministry advised Dr. Fialkov that the patient should not have paid for the procedure. The Ministry determined that Dr. Fialkov received an unauthorized payment and should refund the patient.

Dr. Fialkov requested a review of the Ministry’s decision to the Health Services Appeal and Review Board (the “Board”). The Board found the rhinoplasty component of the procedure was required to obtain an adequate airway and therefore the entire procedure was medically necessary.

Dr. Fialkov appealed and sought judicial review of the Board’s decision.

The court’s jurisdiction was limited to questions of law for appeals from the Board’s decisions. The court also had jurisdiction to hear an application for judicial review. The standard of review for judicial review was correctness.

The court held that the Board correctly determined that, if it concluded the rhinoplasty was medically necessary to provide an adequate airway, the procedure was an insured service. Therefore, the court held the Board did not err in deciding the fees charged were for an insured service and therefore should not have been charged.

The court dismissed the appeal and judicial review application. The parties agreed on costs payable to the OHIP.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.

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