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Brian Day Cross Examination in Detail

Day 1 of Brian Day Testimony – Confusing and contradictory evidence

On September 18, 2018, Brian Day took the stand in the ongoing Charter challenge he launched against the government of BC and its Medicare Protection Act. The purpose of his testimony was, of course, to support his case. However, under cross-examination he was shown to be a less than credible witness.

In preparation for the trial Day submitted a lengthy affidavit to advocating for American style two-tier health care, ostensibly to alleviate wait times for medical procedures. The affidavit while long, is short on any real evidence to support his claim that the ban on extra billing and private insurance is detrimental to anyone's health, and relies instead on personal anecdotes, some over 20 years old.

Most revealing is the testimony Day gave yesterday under cross-examination. The case centres around whether or not physicians should be allowed to extra bill. That is, charge patients directly while at the same time receiving payment from the Province for performing the same procedure - a practise that Cambie Surgeries Corporation has been charged with. Brian Day has spent a great deal of time and effort in denying the charges of extra-billing. But, with evidence introduced by the Province, it is clear that Cambie Surgeries regularly charged patients 4 to 5 times the fee paid by the province and at the same time paid that money to the doctors performing the surgery. It was also revealed that Day withheld documents, misleading the legal discovery process. While he continued to evade the questions and obfuscate with his opinions of public health care, in the end he had to answer. His answers demonstrating his affidavit evidence on these points is confusing at best, if not completely untrue.

Day 2 of Brian Day Testimony – The Dr's Credibility Gap Widens

Does Brian Day admit that the Cambie clinic charge patients more than the province allows? Does he admit paying doctors more than the province allows? The answer to both those questions is yes and no because in day two of Brian Day's testimony in his case against public health care, Brian Day gave a completely different answer than he did the day before.

It is against the law to charge citizens of British Columbia more than the set fee for medically necessary services. In BC doctors are paid on a fee for service basis. That is, they are paid an amount set by the province, by the province, for each insured service delivered. It is against the law to charge BC patients more than the provincial fee, in fact it is against the law to charge patients directly. This ensures that all procedures are delivered on an equal footing. In some clinical practises physician fee for service billings are pooled and the physician draws a salary. This is where it gets murky with the Cambie clinic.

On Monday under cross examination, Brian Day said yes to the question "That the amount that Cambie will charge for the surgeon is typically three, four or five times more than MSP would pay the surgeon for the same surgery; is that fair?" And, in support of that admission, Cambie offered that the doctors providing service in his clinic deserve more pay because they are working evenings and weekends after putting in a long week in the public system. "They're coming out during their down time from the public system where some of them are working 80 hours a week and they're coming working on what would be for an ordinary person an overtime basis. And quite honestly they deserve to be paid more."

Yet on day 2 of his testimony the picture was quite different. When questioning got tough on issues related to how doctors are paid, he denied that they get paid any more at Cambie Surgeries Centre than they are paid in the public system. At the same time, he went on to elaborate on how he does not know how or how much they are paid. In fact, he went as far to say that as CEO of the Cambie Corp when it comes to physician pay "it's not an interest of mine." But in his affidavit he had stated that he is the best qualified and most knowledgeable to testify in this case on the matter of payment.

Day also stated repeatedly under oath that there are no records of doctors' pay, no contract between Cambie and the physicians who have surgical privileges there, and no accounting of their fees in the Cambie books beyond regular payments under a category entitled "paediatric consultation".

The day's questioning ended with the subject of conflict of interest. The provincial lawyer pointed out that according to the College of Physician and Surgeons standards of practise, it is a conflict of interest for a doctor to be paid a commission, or extra pay for any procedure as it would create an incentive to provide that procedure. That is clearly the case when patients are asked to pay more for speedier service. Day, while admitting on the one hand that physicians deserve to be paid more at his clinic then denying it, stated that there is not conflict in his opinion when doctors are paid more at his clinic to provide speedier service.

Day 3 of Brian Day Testimony: The Mystification Continued

Yesterday concluded Brian Day's testimony in his case to remove the ban on extra-billing and private insurance in British Columbia with the provincial lawyer accusing the doctor of fraudulent billing activity at his private clinic. The provincial lawyer came to that conclusion after Brian Day gave three days of testimony that consisted of avoiding questions, then contradicting himself and the evidence.

It was clear that Day was frustrated by the provinces' line of questioning, having tried many times to bring up the subject of waitlists for medical procedures or speculate on the impact of wait times on patients. However, as the province had proven earlier, Brian Day does not have evidence to give on wait times as he does not have any provincial data on the length or impact to BC patients.

What we did learn, through the shroud of contradictory statements, is that the financial operations of Cambie Surgeries Corporation is, at best, mystifying. Yesterday, Brian Day argued that he was "open" with provincial auditors and had in fact invited the audit "voluntarily". However, the province produced evidence that not only had Cambie filed injunctions to stop the audit but that the auditors stated that they were not provided with the documents they needed to perform a full audit.

More to the point, is whether or not the Cambie clinic has engaged in extra-billing. A practise that Day himself described as "fraudulent" but it is also the very thing he seeks to change with his suit. Documents provided in Day's affidavit demonstrate that physicians who practise at the clinic are paid regularly out of an account called "consulting-pediatric" even though they are not performing any pediatric procedures. At the same time, these physicians had been paid by the province for all insured procedures performed at the Cambie clinic. Day refused to say specifically what these payments are for and claimed repeatedly that no documentation exists that would itemize these payments. It is astonishing to any observer that a professional relationship, such as exists between Cambie Surgeries Corporation and its physicians, would exist without a contract, or written agreement or any accounting records for the payouts. Day would have us believe that the relationship is one of "trust" and it is rare because Cambie is "a unique facility".

As public health care advocates, we believe that the contradictory statements by Brian Day should lead all to the conclusion that not only does Brian Day want the freedom to double bill, he already does. He launched this suit, which threatens the future of public health care in Canada to defend himself from prosecution.

In Canada, we have a public health care system that ensures care is provided on need, not on the ability to pay. Ensuring that requires that everyone is covered by the same public insurance system regardless of health status and income and that medically necessary services are paid for by public insurance and only public insurance. We will continue to watch this trial closely and work to protect these vital principles