Mar 4, 2009

The Lawsuit


The Lawsuit

A couple of weeks ago I wrote that Brian Day and his followers had launched a lawsuit against the province, alleging that, “in contravention of the value of individual choice,” the Medicare Protection Act restricts or prohibits patients from “accessing the private health care of their choice”. Day & Co. brazenly admit in their Statement of Claim that “Independent surgical facilities receive facility fees for the use of their facilities for the pupose of operations and other procedures”. The fees, according to the Statement, come from all and sundry — health authorities, the workers’ compensation system, other third party payers and patients.

And here I thought that Diane Marleau, a federal health minister from the long ago 1990s said plainly that facility fees “are objectionable because they impede access to medically necessary services” and therefore “violate the [Canada Health] Act“. Silly me.

Now, I’m sure many of you read about the lawsuit in the Vancouver Sun, the Globe and Mail and other media outlets. But I’m equally sure that, for reasons I cannot fathom, you didn’t read about the Government’s response, filed on February 20, in any of these same investigative outlets. I wonder if that’s because, as a Vancouver Sun editorial put it in 2007, when it comes to whether or not a facility might violate the Canada Health Act, “what matters in all of this is no longer the law”, but whether anyone in government cares. “It’s time to focus on what is really important here,” the editorial continued. “Two tier health care is here to stay.”

But I digress.

In its Statement, the government dismisses most of the points raised by Day & Co., and asserts that “there is no freestanding constitutional right to health care”. Heaven forbid. But the most interesting thing about the Statement is not the government’s defence of medicare, but rather the Counterclaims against the five Plaintiff Clinics and the Specialist Referral Centre (collectively dubbed the “Extra Billing Clinics”). The SRC expedites access to specialists (for a fee, of course). Here, in handy point form, are the key allegations in the Counterclaim:

1. That Cambie Surgery (Day’s outfit) and the SRC have refused to provide information or allow audit inspectors on the premises so that the Medical Services Commission can determine whether these two companies have violated the Medicare Protection Act. The goverment has asked for an injunction “restraining Cambie and SRC from hindering, molesting or interfering” with inspectors who are trying to carry out the audit.

2. That Cambie and the SRC charged patients for services listed on invoices as “surgery”, “overnight”, “administration fee surgery”, “facility fee”, “consultation/assessment”, “surgeon’s fee”, “anaesthetic fee”, “escort services” (escort services?), and “prepayment for surgery”. These services are either fully covered under MSP or, if charges are allowed, the charges exeeded the amount permitted. The government has asked for interim and permanent injunctions restraining Cambie and the SRC from violating medicare laws.

3. That the Extra Billing Clinics, jointly and individually, “have themselves been engaged in unlawful billing practices…and also have aided, abetted, assisted, and facilitated the unlawful billing practices of others who practised in the Exra Billing Clinics or who arranged payment through or with the participation of those facilities”.

4. The government also alleges that patients were required to sign “Acknowledgement Forms” which falsely informed patients that the services for which they were being charged were not covered under the Medical Services Plan and committed patients to forego reimbursement from MSP or any other public agency. The waivers also forced patients to agree not to file any complaint with any government body regarding the circumstances of the benefits provided by the Extra Billing Clinics. Patients also undertook” not to disclose any information to any government regarding the particulars of the beneficiary’s surgery”, including costs. If the patient does disclose, the waiver “purports to require the beneficiaries to indemnify the Extra Billing Clihic for damages and costs arising from [the] disclosure”.

Wow, if all of this is true — and if, contrary to the editorial assertion in the Sun, the law does indeed matter, these folks have really got themselves in deep doo-doo.