Two Nova Scotia women forced to pay for out-of-country surgeries to treat debilitating medical conditions have won their legal challenges, with a judge criticizing the mishandling of their cases and ruling the province’s Department of Health violated their rights by refusing to cover the procedures.
One of the women, Jennifer Brady, a 46-year-old mother of two, has been outspoken about her lengthy battle for treatment for lymphedema, which causes painful swelling, and her decision to apply for a medically assisted death after the province refused to pay for a further operation to relieve her symptoms.
She said Friday the decision by Nova Scotia Supreme Court Justice Timothy Gabriel is a “huge relief” and she hopes it leads to the province paying for the treatment she needs. But she’s also cautious about celebrating.
“Given my experience over the last five years, every turn has been more shocking than the previous,” she said.
“I just feel like I’m still holding my breath until I actually get surgery and, or, get reimbursed for my expenses so far that I’ve had to pay out of pocket for surgery that I needed.”
In a decision issued this week, Gabriel said Brady and a second woman, Crystal Ellingsen, found themselves in a situation that “could very well be described as Kafkaesque.” They needed surgeries only available outside the province, but were denied coverage because there were no specialists in Nova Scotia who could refer them.
Jennifer Brady, 46, of Halifax has taken the drastic measure of applying to end her life through medical assistance in dying (MAID). It follows several years of fighting the provincial Department of Health for access to care outside of Nova Scotia.
The Nova Scotia government spent two years fighting the women’s judicial review in court, but Progressive Conservative Leader Tim Houston, who is campaigning to be re-elected as premier, publicly apologized to the pair on Friday.
The province will not appeal the decision, he said. In a statement, Houston said the Department of Health will pay the women for “all the expenses they incurred for travel, treatment and unnecessary legal costs, including interest on those costs.”
It will also fund further treatment for Brady.
“On behalf of the province I want to apologize to them,” Houston said in an interview. “No Nova Scotian should have to go through what they went through.”
He said he has also written the province’s auditor general to ask for a review of how the department handles requests for out-of-province care.
Brady’s disease causes a painful accumulation of fluid. She spends up to five hours a day tied to a machine designed to move fluid through her legs.
Ellingsen suffers from lipedema, where diseased tissue builds up in her arms and legs.
In both cases, there was no doctor in Nova Scotia who could perform the surgeries they required, so they sought treatment in other countries. Brady remortgaged her home to get an operation in Japan, and Ellingsen sought treatment in Germany.
But in order for the procedures to be covered by MSI, Nova Scotia’s insurance system, a medical consultant with the program insisted they get a referral from a specialist in the province, even though there wasn’t one.
One plastic surgeon they were told to see stated he’d already told the MSI consultant he didn’t treat lymphedema or lipedema, and was too under-resourced to be taking patients in order to write “MSI letters.” He had told the consultant he could instead write a “general letter” stating the surgery was not available in Nova Scotia.
Both women sought reviews of the MSI decisions from the Department of Health, but their requests were denied.
People need to demand ‘what they deserve’
Houston has made health-care a central tenet of his re-election campaign. On Sunday, Brady confronted him at a party rally in Bedford, N.S.
Houston expressed sympathy for her situation, but said the province relied on physicians to make decisions on out-of-province services.
Brady, a dietitian and occasional columnist for CBC’s Information Morning Nova Scotia, said Houston called her Thursday night after she sent his campaign a copy of the court decision. She said she’s grateful for his statement and his financial pledge.
But she said the battle has made her more cynical about how government works and it underscores the importance of advocacy.
“I hope that people learn, I think first and foremost, to stick up for themselves,” she said. “I think people need to demand from our leaders what they deserve.
“I have met so many people along the journey of fighting for my own health care that have simply given up. People who applied to the out-of-province program, were told no at some point, and then just simply gave up.”