A Stroke of Luck
New private health care lawsuits may yet determine if Canada's medical monopoly violates the charter
Kevin Steel - December 4, 2006
When Lindsay McCreith came back from the hospital, he and his wife Sandra were very worried. The 66-year-old retired auto repair shop owner had been admitted to the Southlake Regional Health Centre in Newmarket, Ont. Jan. 2, after suffering an apparent stroke. The stroke, the doctors suggested, was caused by epilepsy. A CT scan revealed something suspicious, but McCreith needed an MRI, his family was told, and he'd have to wait for that until May 27. So he was prescribed medication and sent home. "We went up to the cottage that weekend, and we didn't know what to think. We were scared. We didn't know which way to turn for help," Sandra says.
At that point, the couple's 30-year-old daughter Tracey took matters into her own hands. On the Internet she found a company that could help them arrange for an MRI in the U.S. Just over a week later in Buffalo, N.Y., American doctors discovered Lindsay McCreith had a brain tumour--how dangerous, they couldn't say for certain. Rather than wait for surgery in Canada, the family opted to have the operation in the U.S., and on March 6--almost three months before he could have had a Canadian MRI--McCreith's tumour was removed. It turned out to be only the second-deadliest form of cancer, so there was some relief. "The thing is, we didn't know how bad it was until after the surgery," says Sandra.
All told, the couple spent $40,000 on treatment, transportation and accommodation. "We were lucky. We had that money from an inheritance just six months before from my father, so we didn't have to mortgage anything," Sandra says. She considers it money well spent, because she has her husband. Still, they would like some of their money back, since Canadians enjoy public health care insurance. So they filed a claim with the Ontario Health Insurance Plan. But OHIP denied their claim, replying that McCreith's tumour did not in their view constitute an emergency, nor had they pre-authorized the surgery.
Richard Baker begs to differ. Baker runs Timely Medical Alternatives Inc. in Vancouver, the company Tracey McCreith found on the Internet to arrange her father's treatment. Baker is taking up the McCreith's cause and, as he says, "putting OHIP on notice that if they don't recognize their claim, we will take the matter all the way to the Supreme Court." To support their claim, they have obtained the opinion of McCreith's family doctor of 35 years, Gary Magee, who in a June 21 letter stated that, if McCreith had had to wait until May for the MRI, and then into the summer for surgery, he'd likely be dead.
A court challenge like this, going to the Supreme Court, is no idle threat. In June 2005, that court ruled in the Quebec case Chaoulli that denying access to timely medical care violated that province's human rights statute. Yet the court did not decide whether it violated the Canadian Charter of Rights and Freedoms. Pushing the McCreiths' claim might force the court to make a decision on the scope of Chaoulli. And if it went in the McCreiths' favour, it would probably shred the Canada Health Act, by allowing people to seek medical care outside of the public health system, while obligating the public health insurance system to pay.
It wouldn't be the first test of Chaoulli outside Quebec. In September, Calgarian Bill Murray filed suit against the Alberta government and its ban on private health insurance, after his claim for two private hip treatments was denied. Murray is suing because he was denied a second treatment in the public health system, due to his age. The 57-year-old accountant was two years beyond the government cut-off of 55, at which point patients are deemed too old to enjoy the benefit of the surgery. John Carpay, executive director of the Canadian Constitution Foundation, a group backing Murray's claim, says he isn't surprised to hear of the McCreith case. "Refusal to pay for medical treatment in a timely fashion is part of the problem of the government monopoly. It's the government monopoly that says, what you get done outside of us is not valid, is not legitimate and is not recognized. All of these reimbursement claim cases arise directly from a scenario where a government is trying to preserve its entire control over health care," says Carpay.
Still, there hasn't yet been a flood of cases challenging the Canada Health Act. Perhaps governments across Canada are waking up to public dissatisfaction with the wait times for medical procedures, or feeling the heat. The Fraser Institute's 16th annual wait times survey, released in October, showed only a slight increase in the average wait for medical services across the country, from 17.7 weeks in 2005 to 17.8 this year. In Alberta, Ontario and Newfoundland, the situation even improved slightly. Ontario had the shortest wait time average of 14.9 weeks, with Alberta second at 16.3. New Brunswick had the longest, at a painful 31.9 weeks.
As for patients like Lindsay McCreith, leaving the country for medical care, the Fraser Institute's director of health system performance studies, Nadeem Esmail, says that percentage has actually gone down over the last three years, from 1.3 per cent of patients in 2004 to 1.2 per cent today. (In Alberta, the trend is the reverse, climbing from 1 per cent in 2004 to 1.3 per cent this year.) Esmail concedes these numbers are based on surveys of specialists only, and would not include those going outside the country without seeing a Canadian GP or specialist first, or those who ceased to be tracked after one visit to a specialist.
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