His critics warn that, if he succeeds, it will create a two-tiered health-care system and erode Canada’s universal health-care system.
But considering how long his case has taken to get to trial, Day might now wish he had started his fight with a push for a two-tiered court system. Day smiles at this suggestion, then turns serious.
“An almost eight-year delay waiting to get to trial – that’s worse than health-care waits,” he said during a recent interview at his office at the Specialist Referral Clinic, where he sees patients, some of whom may be referred for surgery at his private clinic.
But it’s not really the court system that Day blames for the delay – he blames the B.C. government, which is the target of his suit.
Day launched his court challenge against the B.C. government in 2009 on behalf of six of his patients, but it took until last month – September 6 – for the trial to begin. Two of the six patients died waiting for the case to go to trial, which is expected to last six months.
“One of the strategies of government over the years is, I think, to bankrupt us by delaying and protesting and coming up with 300,000 documents a week or two before the trial was supposed to start last time,” Day said.
The 69-year-old orthopedic surgeon is fighting to give British Columbians who do not want to wait for surgery the right to be able get operations from a private clinic, like Day’s Cambie Surgery Centre.
For that to be legal, B.C.’s Medicare Protection Act would need to be changed to allow doctors and clinics to bill the province for medically necessary operations.
It is illegal for British Columbians facing long surgical wait-lists to jump the queue and pay a surgeon at Day’s clinic for an operation, either out of their own pockets or through private health insurance.
How, then, has Day managed to operate his private clinic since 1995 without getting shut down?
There is some irony that one of Day’s biggest client bases comprises injured workers whose surgeries are paid for through Workers’ Compensation.
“That’s a private insurance company,” he said.
Surgeons at the Cambie centre also operate on people from outside the province or country.
“Foreigners and non-residents of B.C. have more rights under the law in B.C. than you have as a resident,” he said.
Many public servants – members of the Royal Canadian Mounted Police and Canadian Forces – and federal prisoners are also able to jump the public queue to get health care from private clinics.
“This case is about giving Canadians who are not in jail the same rights as Canadians who are in jail,” Day said. “People might be shocked by that statement, but it’s a fact. That’s the law. It’s a stupid law and it has to be struck down.”
Day’s critics include the BC Health Coalition and Canadian Doctors for Medicare, which are interveners in the case. The federal government is also an intervener. Day said the court case will reveal some hypocrisy on the part of some of the interveners.
“Among those interveners are quite a number of people from high levels in those groups who have had surgery at our clinic,” Day said.
Day’s upbringing in the rougher part of Liverpool goes some way to explaining his pugnacity and his disaffection with leftist politics.
He was born in 1947 in Toxteth, a tough, crime-ridden, working-class neighbourhood of Liverpool. Day’s father, a pharmacist, was killed during a home invasion by thieves who were after the keys to Day’s father’s pharmacy.
“I was brought up in a strongly socialist family,” Day said. “I believed in trade unions. I’ve lost some of that belief now because I see the hypocrisy of what they’ve been doing for years.
“I saw Liverpool destroyed by left-wing groups, by trade unions. It had been one of the leading ports in the world. The leaders of the trade unions were greedy, and I think a lot of them are greedy today.”
Day received his medical degree from the University of Manchester and then moved to Vancouver in 1973 to complete his training at the University of British Columbia (UBC).
He specialized in orthopedic surgery at Vancouver General Hospital and earned some renown as a specialist in arthroscopic knee surgery. He has published 150 articles, has served as the president of the Canadian Medical Association and sits on the editorial board for the BC Medical Journal.
Day’s wife, Nina Bland, was also a physician, but gave up her practice to raise their children. The couple has six children and four grandchildren.
By the early 1990s, Day said, health care in B.C. had deteriorated to the point where he decided that there was a need for private clinics to ease the pressure.
“Things were getting bad in health care. Wait-lists were climbing, access was poor, doctors were frustrated and leaving the country because they couldn’t get work. I personally had 450 patients waiting to get into hospital, and my OR time had been cut from 22 hours a week progressively to five hours a week as a form of rationing.”
Day got 22 investors, including some physicians, to pony up $100,000 each, and got a loan from the Royal Bank of Canada to fund the $5 million startup costs of opening the Cambie Surgery Centre in 1995.
Jim McEwen, a biomedical engineer, adjunct professor at the department of electrical and computer engineering and the department of orthopedics at UBC and an Order of Canada recipient, was one of the 22 original investors.
McEwen said Day’s campaign to introduce a hybrid public-private health-care model is consistent with his zeal for innovation.
McEwen is an inventor best known for developing an automated surgical tourniquet. Day was the first surgeon to use it. McEwen also collaborated with Day to invent a robotic device for arthroscopic surgery.
“He was the first surgeon in the world to use a robotic device in orthopedics,” McEwen said. “Brian’s whole career is about innovation and about experimentation and trying to find new ways to do things better, and this [Cambie Surgery Centre] is very much a continuation of that.”
The clinic employs 60 to 70 nurses and up to nine administrative staff, and 100 physicians have operating-room privileges there, although most also work at other hospitals.
Day said that based on polling his clinic did, 23 of the 100 doctors with privileges at Cambie Surgery Centre said they would not be in Canada if it were not for the fact that they can get the extra operating time there.
If some of the work Day’s clinic does is illegal – allowing patients to pay out of their own pocket for surgery – the B.C. government has for the most part turned a blind eye to it.
Because the court case is taking up so much of his time, Day operates only one day a week now, although it’s typically a 12-hour day.
“I did nine surgeries yesterday,” he said.
