Top court refuses to dismiss nurses' lawsuit over billing

The B.C. Supreme Court has given a big boost to a landmark lawsuit demanding that provincial authorities enforce medicare's ban on doctors extra-billing patients for necessary medical services.

In a decision released yesterday, Mr. Justice Stephen Kelleher rejected arguments by the provincial government to dismiss the unusual legal action brought by the 25,000-member B.C. Nurses Union.

Government lawyers contended that the union had no right to bring the matter forward and that the case itself was unreasonable.

But Judge Kelleher found that the nurses' petition is well within what a democratic trade union normally does in our society, and the union has a real and continuing interest in the issue of the public medical system.

He further concluded that the union had raised significant issues about the enforcement of the Medicare Protection Act.

In recent years, B.C. has been fined more than any other province for violations of the Canada Health Act, which outlaws extra billing by physicians and medical clinics.

The union's lawsuit charges that the province's Medical Services Commission has failed to take sufficient action against private clinics that illegally charge patients so-called facility fees and doctors who bill patients for services provided free under medicare, a practice sometimes called double-dipping.

Judge Kelleher agreed with the union that the commission must enforce the law. Compliance ... is not a matter of administrative discretion.

However, the judge did decide against the union on one matter. He ruled that it could not press the case on behalf of individual victims of extra billing. They must be directly involved in the litigation.

Union lawyer Marjorie Brown said that should not be difficult. It's far from fatal. We have put forward evidence of various patients denied care or charged for care unlawfully, so it should not be a problem.The nurses' union is seeking a declaration from the court that the Medical Services Commission has, in certain cases, violated medicare legislation by failing to take action against physicians and private clinics for illegally billing their patients.

I conclude that the union has the capacity to bring this petition, Judge Kelleher found.

Union president Debra McPherson welcomed the judge's ruling.

He has substantially broadened the rights of unions to bring matters before the courts on matters of broad public interest ... and recognized that our union has brought serious legal issues before the court, Ms. McPherson said in a statement.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4