The leadership of the Ontario Medical Association has been taken aback by a ruling from the province’s privacy commission ordering the disclosure of physician-identified OHIP billings. It may try to halt the release, the Star has learned.

“They were legitimately surprised, in view of previous rulings,” said a senior physician close to the OMA, the organization that represents the province’s 29,000 doctors.

On Thursday, the Toronto Star learned it had won a two-year battle to get the names of the top 100 billers, along with amounts they have received in payments from the Ontario Health Insurance Plan.

In granting an appeal from the Star, the province’s privacy commission overruled the health ministry, which had wanted to keep the information secret, arguing it was an “unjustified invasion of privacy.”

The OMA and more than 70 affected doctors argued against the appeal.

But privacy commission adjudicator John Higgins said that parties receiving substantial payments from the public purse should be identified, in the interests of transparency and accountability.

The privacy commission put on hold a separate appeal from the Star for the release of all physician-identified billings while it dealt with this smaller appeal.

The Star is also seeking information from the health ministry showing what OHIP fee codes individual doctors use when they receive payment for services.

The source said the OMA had expected the privacy commission to deny the Star’s appeal, in keeping with past decisions, which found physician-identified billings to be personal information and, therefore, exempt from disclosure.

But in a 54-page decision, Higgins wrote that physicians’ OHIP billings are more properly characterized as business information than personal information.

“The provision of medical services is a professional and/or business activity. Accordingly, I conclude that the act of submitting billings to OHIP and receiving remuneration for those medical services is in a business or professional context that is removed from the personal sphere,” he wrote.

Even if the information were personal, there would be a compelling public interest to release it, Higgins said, agreeing with the Star.

In April 2014, the Star sent a freedom-of-information request to the health ministry, seeking the names of the top 100 billers, their specialties and the amounts they received annually in payments for each of the five most recent years.

In response, the ministry provided a breakdown of payments but kept the physician names secret, maintaining their release would violate privacy provisions of the province’s Freedom of Information and Protection of Privacy Act. In a handful of cases, the specialties of the physicians were also withheld for the same reason.

The Star launched an appeal, arguing that releasing the information was in the public interest.

In an email to doctors on Thursday, the OMA noted the ministry has until July to release the information to the Star. In the meantime, the OMA may ask the courts to halt the release while it pursues an appeal of the decision, the email states.

“The OMA has sufficient time to apply for a judicial review and to request a stay regarding the release of this information pending a decision of the Divisional Court. We are investigating this option,” it reads.

The email included a number of “key messages” on the issue. Among them:

“OHIP billings do not reflect a physician’s income, but rather the gross revenue of a small business that includes costs for office space, staff salaries, supplies and equipment. In addition, physician billings depend to a great degree on the demand for services, which is outside of their control, such as a physician shortage in a community.”

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NDP health critic France Gelinas said that even before the privacy commission’s ruling came out, leaders in the OMA told her they planned to appeal it.

She said there is an easy way to avoid what could be a lengthy and expensive court battle, and that would be through passage of a private member’s bill on health transparency, which she introduced last year. It would see the annual release of physician-identified billings, similar to the annual release of the Sunshine List, which includes names and salaries of provincial public servants earning more than $100,000.

“Do we do this the easy way or do we do this the hard way? Do we do this the expensive way or do we just pass a private member’s bill?” Gelinas asked.

“It’s coming, I guarantee you. The train has left the station,” she added.

British Columbia and Manitoba have long made physician-identified billings public, and Prince Edward Island has recently introduced legislation to do so. In the United States, Medicare data on individual doctors was made public in 2014, following a court battle initiated by Dow Jones and Co., the Wall Street Journal’s parent company.

Roger Martin, former dean and current institute director of the Martin Prosperity Institute at the Rotman School of Management at the University of Toronto, praised the privacy commission’s ruling and said “disclosure is just a good thing.”

Martin, who has authored a paper on the challenges of physician payments in Ontario, explained why disclosure regulations were dubbed “sunshine laws” when they originated in the United States.

“That is because it was known that sunlight was the best natural disinfectant. The idea was that if there was something rotten, if you shone sunshine on it, that would help clean it up,” he said.

As an example, Martin points to a U.S. regulation that was put in place by former transportation secretary Elizabeth Dole in 1987.

“People were complaining about late flights and lost luggage. Rather than regulating performance, she simply made the airlines report quarterly on on-time performance and luggage losses. The major papers picked it up immediately, and every quarter, the airlines got savaged if they were at the bottom of the list,” he said.

“It changed behaviour more than any kind of heavy-handed performance regulation would. So basically I love this,” Martin added. “The only organization or person that is against transparency has something to hide.”