The judge presiding over the B.C. public vs. private health care trial had sinus surgery at a private Vancouver clinic, but didn’t pay for it himself because the operation was funded through a contract Vancouver Coastal Health had with the False Creek Surgical Centre.
Trial plaintiffs, led by Dr. Brian Day of the Cambie Surgery Centre, are arguing in court that B.C. laws prohibiting doctors from charging patients for expedited services in private clinics violate individuals’ constitutional rights.
B.C. Supreme Court Justice John Steeves had surgery at the False Creek private clinic about three years before the trial began. In a pre-trial conference, he disclosed this to lawyers for both sides — the B.C. Government and the plaintiffs — to avoid any perception of bias or conflict.
Then, during the trial, Steeves declared that Dr. Amin Javer, who is on the plaintiffs’ witness list, had been his surgeon when he had his operation at False Creek Surgical Centre.
Javer, head of the St. Paul’s Hospital Sinus Centre, is due to appear in court, as a witness for the plaintiffs, when the trial resumes in the fall. So is Dr. Mark Godley, the medical director of the False Creek private clinic.
The court case, which has already taken seven months, was recently adjourned when Day announced that the plaintiffs have run out of money and must spend the next five months fundraising to continue their legal challenge. Jason Kuzminski, spokesman for the Attorney General, and trial Crown counsel Jonathan Penner said no one could comment on the judge’s surgery since the trial is still before the court, albeit on hiatus.
In an interview, the plaintiffs’ lawyer Robert Grant said he recalls the matter came up, but he didn’t object to Steeves presiding over the trial.
“At the beginning of the trial, the judge disclosed that he had a surgical procedure performed at a private clinic, which he thought might have been Cambie. He asked whether that posed a difficulty for any of the parties,” said Grant. “The government investigated the matter, presumably by looking into Medical Services Plan and other records available to it, and determined that the procedure was performed at False Creek through the public system.
“Patients receiving treatment in this way continue to be part of the public system, including the public wait-lists. The only difference is that they are treated in a private clinic paid with public funds rather than a public hospital paid with public funds. The doctor performing the surgery would have received the usual MSP payment for the service.”
The Canadian Judicial Council asks judges to follow certain guidelines and litigants can request a judge recuse himself or herself if there is a perceived conflict of interest. Johanna Laporte, spokeswoman for the council, said members of the public can file a complaint to the council to have matters reviewed.
Supreme Court communications spokesman Bruce Cohen said: “I do not have a comment in response to your query as the matter is before the court, and it is not my role to comment upon the judicial management of the case, or the particulars arising from the case upon which you have asked for my thoughts.”
Multipurpose private surgery centres have existed in B.C. for about 25 years. Patients can pay privately for procedures, although it is technically against federal and provincial statutes that are being challenged in this trial. Those who’ve been waiting long periods may be able to have their publicly funded surgery done in a private surgery centre, as the judge did, if health authorities have outsourcing contracts in place. It is not known how long Judge Steeves waited for his surgery but Javer said, generally speaking, most patients who are contracted out have waited at least a year.
Besides patients who get publicly funded surgery at private clinics through health authority contracts, so too do preferred beneficiaries, as defined by federal/provincial statutes. That includes injured workers who are WorkSafeBC claimants and a host of others, including RCMP officers, federal prisoners and armed forces members.
Javer would not discuss the judge’s medical case, but confirmed that Steeves is one of many judges he has treated over the years for sinus problems.
“Look, 15 per cent of the population has sinus problems, so that’s why I see a lot of people, a lot of judges, with these problems like chronic sinusitis,” said Javer. “Many of them are older, and so these problems just get worse as people age. I’m inundated with requests from all kinds of people all over the country.”
There are currently 1,100 patients booked and waiting for sinus surgery across B.C., including 142 of Javer’s patients. Javer is given only one day a week in the operating room at St. Paul’s Hospital, which means he can only do two or three cases a week. He said he tells new patients they’re free to find other surgeons with shorter wait times. He also advises them that if they can afford to pay up to $10,000 to the private surgery clinic (the cost depends on the time needed in the operating room), they can have the surgery done quickly because he gets one to two days a week of operating-room time at False Creek.
Patients who pay out of pocket are charged “facility fees” that cover private clinic overhead costs — for nurses and other staff, capital investments and specialized instruments. The surgeon’s fee is paid by the Medical Services Plan, including for private patients. Javer said patients whose cases are contracted out to private clinics must meet eligibility criteria, which include being healthy enough for out-of-hospital day surgery and having waited at least a year.
Last year, Vancouver Coastal Health had a $990,000 contract with False Creek Surgical Centre.
Godley, an anesthesiologist, and former owner of False Creek Surgical Centre, said he had heard Steeves had his surgery there. But that didn’t seem unusual, he quipped, because “I don’t think there’s a judge in this city who hasn’t had surgery in a private clinic.”
“Look, in the Canadian health care system, access to health care is often improved by education, influence and social status,” Godley, medical director of the False Creek Surgical Centre said, referring to the fact that some patients may have more health literacy, better connections, or money to pay privately.
“It’s not the equal system some would have you believe. So that’s why it’s crazy that we pretend it is. That’s why we should encourage more competition in health care and let patients decide where they want to have their operations, give them that freedom of choice to spend their money on their health care if that’s what they want.”
Since he’s expected to testify at the trial, Godley said he’s contemplated what he might say.
“I have actually thought that when I testify I will look at that judge and say: ‘Many people have had the privilege of being treated, relatively quickly, at a private clinic. And they get that opportunity because other people pay out of pocket,'” Godley said, referring to the fact that private pay cases generate revenue that clinics can then use to buy state-of-the-art equipment. The revenue also allows them to sign low-profit/high-volume contracts with health authorities.
“If I get the opportunity to testify,” Godley said, “I should like to inform the judge that about 10 years ago I got a loan and took the risk to buy $1 million worth of sophisticated equipment Dr. Javer needed so that patients like the judge could come to our facility for expedited surgery.”
Doctors refer patients to Javer because of his specialized experience, skill and reputation. And that is precisely why patient William McComish is eager to have Javer perform his sinus surgery. McComish needs the surgery to alleviate crushing headaches, constant infections and bronchial problems from chronic sinusitis. The 75-year-old Squamish resident has been told he will have to wait at least two years for his operation at St. Paul’s — one year just to get on the wait-list and at least another year in the queue.
“I know of no other province, or even developed country, that has these ridiculous wait times,” he said. “I’m 75 years old and unfortunately my lung and sinus conditions get progressively worse each year.”
While McComish is exploring whether he could get faster surgery with a different doctor, Javer was the one his respirologist recommended. McComish wants his case contracted out to the private clinic, as was the judge’s case.
In the meantime, McComish is one of more than 83,000 patients waiting for surgery, according to government data. Just over half a million surgeries are done in B.C. annually, and only about 10 per cent of that volume is done in private clinics.
Javer said he has a huge amount of empathy for patients like McComish who have to wait so long, not only for surgical treatment but to see medical specialists in the first place.
“Would people be willing to wait two years for their cars or fridges to be repaired? No way!”
