By Pamela Fayerman. The original article can be found here.

The five-year-old case against the B.C. government over extrabilling and patient access to private surgery centres will finally be heard in B.C. Supreme Court during a two-month trial starting in September.

Dr. Brian Day, a Vancouver orthopedic surgeon and coowner of the Cambie Surgery Centre, first launched litigation back in January 2009. In 2012, six patients joined the lawsuit as plaintiffs, all of whom contended their health suffered while they endured long waits for care in the public health care system.

One plaintiff, Tifarah Hauff, died from a brain tumour while waiting for the trial. Another plaintiff, Kelowna teen Walid Khalfallah, joined the lawsuit after becoming a paraplegic after complications from a long-delayed, highly complex spinal operation. His mom, Debbie Waitkus, said he continues to battle serious health problems, often requiring hospitalization.

As with any big legal case, there have been twists and turns galore. Besides the death of Hauff, the law firm representing Day (Heenan Blaikie) recently broke up. But Day said his original lawyers are now in a firm called Gall, Legge, Grant & Munroe and remain on the case. As well, the judge who was originally assigned to the case - Justice Robert Bauman - was promoted last summer, from Chief Justice of the B.C. Supreme Court to Chief Justice of the Court of Appeal.

Associate Chief Justice Austin Cullen now has charge of the file and is expected to preside over the 40-day trial. One of the legal experts advising Day's team is a retired Supreme Court of Canada (SCC) judge, Michel Bastarache. He was on the SCC when it heard the landmark Chaouilli case in 2005, in which a majority of the court ruled unconstitutional Quebec's ban on private insurance for hospital and physician services in the private sector. Day's side is relying on the Quebec case to bolster its chances of success. The B.C. government will argue the Quebec case is irrelevant to B.C. The defendants in the lawsuit are the Medical Services Commission, the minister of health and the attorney general.

The crux of the case is whether patients should be able to pay - with cash or through private insurance - for care in private clinics if they can't get timely care in the public system.

Day said that if the case reaches the Supreme Court of Canada, legal fees for his side could be as high as $2 million. So he's now asking other private surgery centres across B.C. to "chip in" to a legal fund and he's also seeking donations from members of the public through a new website - www.charterhealth.ca - to which patients can post complaints about the health care system.

Donations to the fund are tax deductible since they flow through the Canadian Constitution Foundation, a registered charity supporting Day's side.

Ryan Jabs, spokesman for the Ministry of Health, said since the case is before the courts, he couldn't talk about it. But he issued this comment: "Private clinics in B.C. must operate within the Medicare Protection Act. The Medicare Protection Act is designed to preserve a publicly managed and fiscally sustainable health care system for British Columbia and ensures access to medical care is based on need and not on an individual's ability to pay."

Day said the government has named 35 experts as witnesses. All of the plaintiffs, except for Khalfallah, have already undergone examinations for discovery. Day said he doesn't know how the government will be able to defend the "medical enslavement" of patients.

"Government lawyers will argue that the paralysis of a child, or the death of cancer patients, are worthwhile sacrifices for a system ranked low in the eyes of the developed world," Day said. "On the other hand, I guess some lawyers have historically been comfortable as they argued in favour of racial discrimination and apartheid, or of laws that criminalize abortion, homosexuality, or deny women the right to vote."

Relative to all other provinces, B.C. has for many years had a flourishing private surgery clinic industry even though, under federal and provincial laws, doctors are not supposed to direct-bill patients and clinics are not supposed to collect "facility fees."

The exception is for certain classes of patients who are allowed to obtain expedited treatment at private surgery centres, including WorkSafeBC claimants, federal prisoners, Armed Forces personnel, RCMP and patients from out of the province or country. Such exemptions were introduced by the NDP government in 1998 and have never been changed.

About 50,000 patients a year are believed to use private surgery centres.

Sun Health Issues Reporter pfayerman@vancouversun.com

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