How do Doctors get Paid?

Have Have you ever wondered how your doctor get’s paid? Have you ever heard of the Health Services Appeal and Review Board? Probably not.

For those outside the medical world, you would think — Doctors are scientists, everything they do must be a technical procedure that aligns with some list of technical specifications. Once all those boxes are checked OHIP pays them.

Or maybe they get paid for the thing they achieved. Dr. Smith set my broken femur — pay him his due.

Not at all.

The whole exercise is closer to the approval of a passport than the review of a medical textbook. It seems mechanical — but when we look closer, we quickly realize that these are deeply discretionary decisions.

First, there is a list of things that doctors get paid for… it’s just not what you think it is. The Schedule of Benefits for Physician Services sets out a series of “fee codes” that are supposed to capture the things doctors get paid for.

But the things doctors get paid for aren’t the outcomes or even the attempted outcome — like “set broken leg.”

The Schedule of Benefits sets out a list of the steps taken along the way. These vague “buckets” capture a range of services and techniques. One of my favorites is F134. Here’s a picture of it.

This can get messy — as doctors — especially trauma surgeons (see Wilkin) will often employ a combination of actions to achieve an outcome.

So, for instance, a trauma surgeon dealing with a patient who has broken their femur may apply a procedure similar to F095 to their femur bone (described in the Schedule as “traction — adult or adolescent”), but then also apply a second technique to the femur similar to E555 (described as “rigid external fixation (excluding casts)). All to achieve the same outcome.

Do this for a patient who sustained multiple fractures and the list of techniques, and the discretion in applying those techniques grows quite quickly.

Instead of what appears to be a mechanical process — doctor sets leg — doctor gets money — we get the doctor making a discretionary decision over what techniques to use to achieve the desired outcome — then their billing professional will make a discretionary decision over what bucket those techniques fall into — THEN — the ministry will review the work and corresponding fee codes and decide whether they agree with those decisions and exercise their own type of discretion.

99/100 times it works fine. Just like passports. But, when you have tough cases with new factors, techniques or procedures, problems arise. The ambit of a decision makers discretion increases. Litigation ensues.

That’s why we have an administrative review tribunal dedicated to reviewing the Ministry of Health’s billing decisions.

This is also why reviewing these billing decisions — and pushing back against policy decisions of the Ministry of Health is so important.

When the Ministry of Health declines a claim around the use of a fee code they are not just reducing medical expenditure — they are impacting a Physicians ability to exercise their discretion and still get paid.

Now some of these codes are for like, $100. But over a lifetime, that can amount to hundreds of thousands of dollars in lost earnings for a physician who, at the end of the day, did the thing. They saved the life. They set the leg.

If you’re interested in this area of law I’d recommend the series of decisions involving Gastric Banding procedures which includes [E.C. v. Ontario](https://www.canlii.org/en/on/onhsarb/doc/2007/2007canlii80029/2007canlii80029.html?autocompleteStr=ec%20v%20ontario%20(health%20ser&autocompletePos=4&resultId=0b3c231d9f584530beb206f6dca451ac&searchId=2024-06-25T12:58:01:470/5bee88fd4fdb47db9e21510e1efd2dc8); R.B. v. Ontario; and M.M. v. Ontario.

Note — I’m not a doctor — just an interested legal bystander.