Four B.C. patients, private clinics owner sue government over long waits for health care

By Pamela Fayerman, Vancouver Sun July 31, 2012 2:03 PM

Four B.C. patients, including two students, a cancer survivor and a terminally ill cancer patient — all of whom faced unacceptably long waits for care in the public health care system — have joined private clinics owner Dr. Brian Day (shown here) in a lawsuit against the government.
Photograph by: Vancouver Sun files

Four B.C. patients, including two students, a cancer survivor and a terminally ill cancer patient — all of whom faced unacceptably long waits for care in the public health care system — have joined private clinics owner Dr. Brian Day in a lawsuit against the government.

Details about the Supreme Court of BC case and the plaintiffs are now being outlined during a press conference at the Heenan Blaikie law firm which is handling the case against the Medical Services Commission, the Minister of Health Services and the Attorney-General of BC.

In court documents obtained by The Vancouver Sun, all of the plaintiffs, including Day, the co-owner of the Cambie Surgery Centre and the Specialist Referral Clinic, allege in the law suit filed today that the Canadian Charter of Rights and Freedoms should allow them to seek expedited care in the private system, just as “preferred beneficiaries” can do.

Preferred beneficiaries, as defined by federal and provincial statutes, include injured workers who are WorkSafeBC claimants, RCMP officers, federal prisoners and federal armed forces members.

The plaintiffs in the case, expected to be litigated all the way to the Supreme Court of Canada, just as the Quebec Chaouilli case was several years ago, are:

— Chris Chiavatti, a graduate of Burnaby secondary school who is going to McGill University this fall. In January, 2009, he injured a knee in phys-ed class. According to the statement of claim, he went to the emergency department (ER) at Royal Columbian Hospital, and was referred to an orthopedic surgeon at BC Children’s Hospital whom he saw the next month. Three months after the injury, he had an MRI and was advised the earliest appointment time for his consult with a surgeon was Sept. 2010, nearly two years after the initial injury.

At that time, Chiavatti was told that there were 400 people on the surgeon’s waiting list, just for a consultation. He saw Dr. Day instead, in late October, 2009. A tear in his meniscus was the diagnosis. Within weeks, he had surgery at the Cambie clinic. It is alleged in the court documents that the delay caused joint damage; further delay would have caused irreversible damage.

The court documents note the irony that if it had been Chiavatti’s teacher who had been injured in the phys-ed class, rather than the student, “the teacher would have been eligible for expedited treatment because of his status as an injured worker, covered by (WorkSafeBC.”

— Mandy Martens, a 36-year old Langley woman who detected blood in her stool in April of last year. She was referred to Langley Memorial Hospital for a diagnostic colonoscopy but was told the first available appointment was not until November, 2011, nine months later. In pain, she visited a walk-in clinic and then ER. In May, she was scheduled for a ultrasound and CT scan Three masses were detected in her liver but still she couldn’t get quicker access to a specialist so she made an appointment with the Specialist Referral Clinic in June for an expedited colonoscopy later that month.

A gastrointestinal surgeon confirmed she had colon cancer and arranged for her to see a specialist at St. Paul’s Hospital where she had a resection of her colon at the end of June, five months before she was ever going to see the specialist in the public system for her first diagnostic colonoscopy.

Martens has had three rounds of chemotherapy and had liver surgery in October 2011 at VGH. She is reported to be doing well.

— Krystiana Corrado, a 17-year old elite soccer player who attends Vancouver’s Notre Dame high school. In April, 2011, she injured her knee, was rushed to Eagle Ridge Hospital where X-rays done. She was sent home with crutches and painkillers.

Corrado’s pain and swelling did not subside over the next month and she had an MRI at Burnaby Hospital nearly two months after her injury. She was referred to an orthopedic surgeon whom she saw four months later. At that appointment, the specialist diagnosed a torn anterior cruciate ligament which required surgery.

The surgeon, however, couldn’t put her on his wait-list because she would be over the age limit for surgery at BC Children’s Hospital, a pediatric-only hospital. She then saw a specialist at Burnaby General Hospital who told her his first available date was July, 2012, over a year after her injury.

Throughout the whole waiting ordeal, she was depressed and in pain, unable to play soccer which “undermined her chances for soccer scholarship for university” according to the lawsuit.

In January of this year, she met with Day who did reconstruction surgery two days after seeing her. “Corrado will now have an opportunity to obtain a scholarship since she (can) play in the summer of 2012. This would not have been the case if Corrado had remained on the public system wait-list,” the court documents state.

— Erma Krahn, a 79-year old White Rock resident was diagnosed with lung cancer in May, 2008. She had part of her lung removed and then she injured her knee after starting chemotherapy. She had X-rays at Peace Arch Hospital but was told she merely had inflammation. She saw an orthopedic specialist in Feb., 2009 who advised an MRI. In May, 2009, several months after she injured her knee, she was told that she actually had a torn meniscus which required surgery. But she was told it would be anywhere from one to three years for surgery in a public hospital.

Krahn then met with Day in October, 2009 and he operated on her that month. In April of this year, she learned her lung cancer had spread and become incurable. While undergoing chemotherapy again this spring, she experienced pain in her other knee. She paid for a private MRI which confirmed she had another torn meniscus in the other knee. She is scheduled to have surgery with Day in a few weeks.

“Krahn’s life expectancy has been estimated to be between several months and up to two years. Despite her illness, Krahn is feeling well, apart from the pain and immobility caused by her knee injury and wants to remain active as long as possible. That can only be achieved by having her surgery done outside of the public health care system,” the lawsuit states.

The lawsuit follows an MSC audit of Day’s clinics which concluded that there was clear evidence that patients were being billed for their procedures, something Day has never denied. The MSC is expected to go to court seeking an injunction preventing Day from accepting patients who don’t fit the preferred beneficiary status. Besides the preferred patients, the only other patients who are legally sanctioned to obtain expedited care in private surgery centres are those having non-publicly insured procedures like plastic surgery, or those whose cases have been contracted out by health authorities because of long waits in public hospitals.

It’s not clear whether the expected injunction will be granted now that the lawsuit has been filed today. But today’s documents are actually an amended version of the original lawsuit filed nearly three years ago. In the original statement of claim, there were no patients named.

Sun Health Issues Reporter

pfayerman@vancouversun.com

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