Medicare trial sputters along

It’s beyond ironic that a trial about lengthy delays that cause pain and suffering in the health-care system is growing famous for the lengthy delays and pain and suffering it’s causing in the legal system.

Congratulations to all concerned for that fine touch. The government is essentially being hauled into court for health-care delays. So what’s the key strategic imperative both sides seem to be relying on? You guessed it — delaying tactics.

The pain and suffering on the surgery wait lists is also being inflicted on taxpayers in general, by way of the exorbitant costs this stalemate is racking up. It’s the First World War of court cases.

Another batch of interim rulings from a judge were released recently that give a flavour of how that blast from the past known as Cambie Surgeries v B.C. is going. It’s not going anywhere.

One of the rulings handles government objections to certain testimony by going through 60 paragraphs of a surgeon’s deposition and ruling which lines are admissible and which aren’t. “Assessment of patients?” Admissible. “The second and third sentences, talking about risks of certain conditions and the urgency of treating them, is clearly in the realm of opinion, and those sentences are not admissible.” And on and on. Another decision ruled that a surgeon’s deposition about suffering on the wait list was admissible. But his opinions about the degree of suffering people can tolerate while waiting was inadmissible.

Those are the freshest examples of the expensive nit-picking that has been underway, billable hour by billable hour, for ages.

Justice John Steeves outlined the history of what he called the “document-heavy case” in one ruling. The litigation started in 2009. The government was goaded into threatening an audit of private clinics’ extra-billing. Cambie retaliated with a suit claiming that lengthy surgery wait times violate patients’ charter rights. The trial was originally scheduled for 2015, but adjournments pushed it back to 2016.

There have been about 80 days of hearings, but half of it has been taken up with evidentiary disputes (see nit-picking, above). Steeves adjourned it in 2017 so the sides could find a way to present evidence more efficiently. That led to about 25 evidentiary rulings and another adjournment.

The show trial for medicare started up again last month, but the evidentiary disputes continue.

B.C. has listed 215,000 documents in the case and produced 76,000 of them to the plaintiffs. The judge calculated that’s four years’ work for one person, or 583 hours a month.

And disclosure of documents is ongoing. About 3,000 more get added to the list every two or three weeks. The private clinic keeps asking for more. The government estimates that complying with all the requests could wind up with production of another 215,000 documents.

The paperwork blizzard is blowing through all parts of the health system. The clinics asked for all documents the government has received from the health authorities back to 2000. They’ve received a large volume and will be getting more.

One of the recent rulings is to establish a cutoff date on document requests. The plaintiffs are asking as far back as 1984, or alternatively, 1992. That date is significant as the time private clinics started to have a presence in B.C.

The judge set 2005 as the cutoff. At the current rate, that might shave a few decades off the trial time.

There are important issues at stake. At issue are sections of the Medicare Protection Act that attempt to curb the operation of private clinics in B.C., which operate by the dozens nonetheless.

The argument is that people should be allowed to buy private insurance covering access to private clinics if they can’t get faster service in the public system.

A clear decision by the Supreme Court would clear up a lot of ambiguities in how the current system works. But that looks to be a long way off.

Back when the case started, then-NDP health critic Adrian Dix said the government should improve the public system “so there’s no market for profiteers.”

Nine years later, he’s health minister. But even if he follows his own advice, it’s unlikely to make this case go away.

Les Leyne is a political columnist for the Victoria Times Colonist. Email: lleyne@timescolonist.com.