HOT-TUBBING AND HOLIDAYING AT MEDICARE TRIAL
No sense of urgency to hear case that gets to heart of medicine in Canada
The marathon constitutional challenge to the Medicare Protection Act lumbered to life again this week in B.C. Supreme Court with a discussion about holidays.
The black-gowned barristers and the judge quickly agreed that, of course, there would be time off for spring break, but a summer schedule, which was on some minds, would have to be discussed later.
“The weeks of March 20 and March 27 are non-sitting weeks, and at some time we have to talk about what happens after the end of March — not right now, but soon,” Justice John Steeves decided, hoping to get things “up and running.”
But they were bogged down immediately.
Although this landmark trial is about people suffering and perhaps even dying on medical waiting lists because of provincial law, there is certainly no urgency to this case.
The strategy of the government defendants has become evident — to drag it out, knowing that appeals of Steeves’ ultimate ruling will take years and any negative findings then diminished as involving a “historic” situation.
In this eight-year-old litigation, they have complained about the introduction of updated expert reports, queried qualifications, asked for delays before crossexamination and raised other objections.
They took up where they left off before Christmas with the procedural wrangling, putting the credentials and expertise of Monday’s witness in the crosshairs.
The New Zealand specialist, Dr. Ross Davidson, who lived and worked in B.C. until the turn of century when he emigrated because of frustrations with surgical restrictions, sat outside the courtroom while the lawyers squabbled over him.
Basically, it boiled down to anything he said about this province should be dismissed as too old to matter, and what he had to say about New Zealand was irrelevant.
Steeves agreed anything Davidson said about the province was dated and wondered why he was hearing about New Zealand.
Well, Davidson was a response witness to a government expert who was expected to testify later in the trial but whose report has been withdrawn.
There was a supposed agreement beforehand to avoid these kind of skirmishes during expensive trial time. That agreement is in tatters.
Dr. Brian Day, the face of the litigation launched by two private clinics and a handful of patients, two of whom have since died, is furious about the conduct of the proceedings.
He disagreed with the latest ruling because Davidson’s supposedly past-its-due-date opinion was exactly what Steeves needed to hear.
“The story is about how government intervention in the form of legislation, medical and nursing school closures, and the imposition of fixed and capped global budgets in the late 1980s and through the ’90s is the direct cause of the rationed care that now exists,” Day said.
“My position is that only by figuring out how we got here can we figure out a way out.”
It has been a decade since the B.C. Justice Review Task Force issued a report saying change was needed because trials involving conflicting expert opinions made it exceedingly difficult for judges to resolve complex issues. The task force wanted to impose rules, but the profession nixed that because while it might reduce the cost of litigation, it could restrict counsel’s ability to uncover the truth.
So here we are — watching duelling experts disagreeing for months over data that may or may not be pertinent.
Australia pioneered an approach that requires experts from both sides in legal suits to get together before trial to establish areas of disagreement and concurrent evidence. They call it “hot-tubbing.”
The judge and lawyers can get these experts to address their differences of opinion and the legally relevant issues before they enter the witness box, saving time and money.
In the United Kingdom, they are following the same direction because, as in B.C., there is an obvious need for better case management, and the expense of experts has become disproportionate.
This trial is a perfect argument for the need for procedural reform, but also it is an example of how ineffectual the courts have become as a constitutional check on bad government.
Those who are dying, suffering or whose health is deteriorating while they wait for needed medical care in what are acknowledged to be too-long lineups shouldn’t have to wait years for a judicial ruling.
So here we are — watching duelling experts disagreeing for months over data that may or may not be pertinent.