N.S. premier apologizes to women who fought in court for out-of-province operations

Jennifer Brady, who suffers from lymphedema—a disease that causes an accumulation of fluid that can result in painful swelling, increased risk of blood infection, cellulitis and hardening of the skin, undergoes her daily 5+ hours of treatment in a device called a Lympha Press at her home in Halifax on Thursday, September 19, 2024. (Source: THE CANADIAN PRESS/Darren Calabrese)

HALIFAX -

Nova Scotia's premier is apologizing after a court criticized his government for what it calls a flawed, discriminatory and unfair process that led to two women being rejected for coverage of out-of-province treatments.

In a decision released Friday, Nova Scotia Supreme Court Justice Timothy Gabriel overturned the province's "unreasonable" refusals to reimburse Jennifer Brady, who has painful lymphedema in her legs, and Crystal Ellingsen, who suffers from lipedema in her legs and arms, for their treatments.

Brady's condition causes tissue to swell from the accumulation of fluids normally drained through the body's lymphatic system, and Ellingsen had asked the province to fund surgery to remove diseased tissue, increase her mobility and relieve chronic pain.

In his decision, Gabriel said the province's review of their cases wasn't transparent and was replete with errors, and the rejection was unreasonable because "in reality, there was nobody in Canada who could treat either of their conditions."

The judge ordered the parties to submit potential solutions to him, now that he has quashed the original refusals.

"I have concluded that the effect of the regulations ... during the applicants' struggles with MSI (the province's health insurance program) discriminated against the applicants on the basis of their rare medical conditions," he wrote. "I have found that the applicants have been treated in a procedurally unfair manner."

He criticized the department's process of sending the women to specialists who had years-long waiting lists and were not going to be able to provide a referral for the out-of-province treatment.

In Ellingsen's case, an MSI representative advised her she needed a specialist in lipedema to refer her to obtain reimbursement for surgery in Germany. Since no such specialist existed in Nova Scotia, she was referred to a plastic surgeon. His office told her he wasn't taking patients with her condition, and he had a four-year waiting list.

Brady faced similar barriers and sought out-of-country surgery in Japan in 2022. She has said the treatment was effective, but it cost her over $60,000 and she needs further surgeries.

The judge said the wait times and reasons for refusals were "unsustainable," noting that the plastic surgeon had informed the Health Department he couldn't assist with referrals.

"Through all of this, the applicants were attempting to function through a miasma of debilitating and chronic pain. The situation in which they found themselves could very well be described as Kafkaesque," wrote Gabriel.

Progressive Conservative Premier Tim Houston, who is seeking re-election on Nov. 26, said in a statement that he agrees the women were mistreated, adding that the province will repay both women for their medical and legal expenses to date and will fund the further treatment that is needed to manage Brady's ongoing condition.

"On behalf of the province of Nova Scotia, I extend an unconditional and heartfelt apology to Ms. Brady and Ms. Ellingsen," Houston said. "They should not have been treated as they were."

He said he has also written to the auditor general requesting she do "a thorough review of the manner in which the Health Department handles these kinds of requests," and that she commission a review of the province's system for approving out-of-province treatments.

On Sunday, Brady confronted Houston at his campaign launch, pressing him to explain what he was doing to assist people in her situation.

The party leader has made health-care improvements the centrepiece of his government's program -- and is facing opposition criticism that despite hundreds of millions in additional spending over the past four years, the system remains dysfunctional.

Brady said it is hard to celebrate the court victory as she still needs to see the premier's pledges fulfilled. "There's a long road ahead still, and there are still question marks about what this is actually going to mean," she said in an interview Friday.

She said she will have to see the promised funding to believe it. "My concern (is) that these are political promises because he (Houston) is running an election campaign premised on fixing health care and listening to Nova Scotians, neither of which he's done for me," she said.

This report by The Canadian Press was first published Nov. 1, 2024.

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