Bupa HI Pty Ltd v Andrew Chang Services Pty Ltd [2018] FCA 2033

Bupa HI Pty Ltd v Andrew Chang Services Pty Ltd [2018] FCA 2033

The administration of alprazolam (Xanax) can constitute an anaesthetic service and may attract item 42739 of the MBS when medically necessary for the patient; Bupa failed to prove that in all cases it was not required or that all claims were misleading; Bupa also breached an express contractual term by purporting to deregister Dr Chang from the Gap Scheme without affording him the contractual procedural fairness required.

Parties
Applicant and Cross Respondent: Bupa HI Pty Ltd; First Respondent and Second Cross Claimant: Andrew Chang Services Pty Ltd; Second Respondent and First Cross Claimant: Andrew Chang
Jurisdiction
Australia
Judgment Date
17 December 2018
Procedural Posture
Commercial Contractual and Statutory Claim With Cross Claim / Final Judgment on Liability
Outcome
Applicant's (Bupa's) originating application dismissed; declaration that Bupa breached the contract by purporting to deregister Dr Chang; matter stood over for further mediation and possible further hearing on damages; costs of liability hearing reserved.
Legal Topics
Medicare Benefits Schedule Interpretation, Anaesthetic Services Definition, Misleading and Deceptive Conduct, Contractual Procedural Fairness, Professional Deregistration, Damages for Breach of Contract
Health Law Contract Law Consumer Law Insurance Law Medicare Benefits Schedule Interpretation Anaesthetic Services Definition Misleading and Deceptive Conduct Contractual Procedural Fairness +2 more

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Parties

Bupa HI Pty Ltd

Applicant and Cross Respondent

Andrew Chang Services Pty Ltd

First Respondent and Second Cross Claimant

Andrew Chang

Second Respondent and First Cross Claimant

Procedural Posture

Commercial Contractual and Statutory Claim With Cross Claim / Final Judgment on Liability

Legal Issues

  1. 1 What is the proper construction of item 42739 of the Medicare Benefits Schedule regarding anaesthetic services?
  2. 2 Whether the administration of alprazolam (Xanax) constituted an 'anaesthetic service' entitling the clinic to higher hospital benefits?
  3. 3 Whether representations made in claims to Bupa were misleading or deceptive?

Ratio Decidendi

The administration of alprazolam (Xanax) can constitute an anaesthetic service and may attract item 42739 of the MBS when medically necessary for the patient; Bupa failed to prove that in all cases it was not required or that all claims were misleading; Bupa also breached an express contractual term by purporting to deregister Dr Chang from the Gap Scheme without affording him the contractual procedural fairness required.

Court Disposition

Applicant's (Bupa's) originating application dismissed; declaration that Bupa breached the contract by purporting to deregister Dr Chang; matter stood over for further mediation and possible further hearing on damages; costs of liability hearing reserved.

Orders

  • The originating application filed 24 October 2016 be dismissed.
  • Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the parties attend a mediation to be conducted by a Registrar of the Court with such mediation to be concluded by 28 February 2019.