Time for full disclosure on how many public dollars we really paid private lawyers to defend healthcare bullies

Tim Houston’s new government deserves credit for releasing a blacked-out 13-year-old document showing how much a previous government claimed to have spent on private lawyers in the Dr. Gabrielle Horne case. Trouble is that number isn’t new — or anywhere near complete. It’s time for actual full disclosure.

Dr Gabrielle Horne. Photo: CBC

Jean Laroche, the CBC’s veteran legislature reporter, emailed me recently with a “head’s-up” that he would be posting his latest “Gabrielle Horne story” the next day. “It’s by no means the whole story,” he acknowledged, “but it does lift the veil on the [legal] costs a tiny bit more.” It does. But it turns out the latest disclosure raises as many questions as it answers.

The email was a courtesy. I’ve been writing about the Horne case off and on since I wrote a first feature for The Coast in May 2006 entitled “The Trials of Dr. Horne.” Laroche, one of the province’s ablest reporters, has been at it almost as long.

The Cliff’s Notes version of the Horne case: It began in the early 2000s when several of Horne’s male colleagues at the then-Capital District Health Authority tried to bully her into including them as co-authors of her ground-breaking, grants-generating cardiac research.

She refused.

Instead of backing her, the health authority suspended her hospital privileges, essentially cutting her off from her ability to conduct her research and did it without even a hearing “in view of concern for patient safety.”

The concern was bogus.

Fast forward to 2017 and another update column I wrote for the Examiner:

It took Horne four years and $167,000 to get her privileges back — during which time she lost another $852,000 in compensation — and then another 10 years and $843,087.50 in legal fees, not to mention a 33-day trial, before a jury finally awarded her $1.4 million — the largest such award in Canadian legal history — for the damage the authority had capriciously wreaked on her reputation.

Unwilling to accept reality, the Nova Scotia Health Authority ­— successor to the capital district authority — dug into its bottomless, pitiless pit of public funds and appealed the decision. During the two-day hearing, the authority’s lawyers argued the court should order a new trial — more legal fees! — or, at the very least, reduce the jury’s award to Horne, which was already (thanks to the trial judge’s instructions to the jury) considerably less than the $10.4 million Horne had been seeking to help re-start her research lab. [The appeal court did ultimately reduce Horne’s award to $800,000, but it didn’t change the jury’s clear judgement in her favour.]

Horne’s personal legal cost to defend her reputation has amounted — very conservatively — to way more than a million dollars.

How much do you think it has cost Nova Scotia taxpayers, and our underfunded health care system to pay private lawyers to defend the indefensible?

I’ve been trying to get an answer to that question since I was still a columnist for the late, lamented Halifax Daily News.

I filed a freedom of information request on Jan. 12, 2007, asking for details about the outside legal firms the authority had hired and how much it had paid each, as well as the number of hours its in-house counsel had chalked up on the case.

Instead of answering my questions, the authority did its best to avoid them, claiming it doesn’t keep track of the hours its own lawyers work on specific cases — which strikes me, at the very least, as lousy management — and hiding behind the ludicrous claim of lawyer-client privilege to keep me from finding out how much it had paid the outside lawyers.

In the end, I had to appeal to the province’s freedom of information review officer just to get CDHA to cough up the global amounts it had paid the outside lawyers for their work on the case.

The official total — back in July 2007 — was $1,024,649. According to the government, however, that figure included more than just the Horne case, but doesn’t even begin to count all the money it has spent on lawyers since then, including for that 33-day trial in 2017.

Nobody believed that number then.

No one believes it now.

Hold that thought.

In 2017, after the trial but before the appeal court judgment, I asked Dr. Ken West, then the president of the health authority’s medical staff association, how much he thought the authority had spent on legal fees to fight the Horne case.

“I’m guessing upward of $10-million…” West says a previous association president saw a 2012 document, which estimated the bill to that point for Horne’s case and two other, lower profile privileges cases had already topped $8-million.

CBC reporter Jean Laroche

On Sept. 16, 2016, Jean Laroche and the CBC filed their own freedom of information request, seeking “all information held by the Department of Health related to the costs of the court case involving Gabrielle Horne.”

A month later, the department of health “did provide a two-page response to the CBC request. The two pages comprised an email string and an attachment that was completed blacked out.”

The McNeil government claimed releasing information about how many public dollars it had spent on the case would “harm the financial or economic interests” of the province and/or interfere with its ability “manage the economy and result in undue financial loss or gain to a third party.”

Wha—? Exactly.

The province’s then-information officer, in a follow-up report, deemed the government’s response “not in compliance” with the act. Toby Mendel, the executive director of the Centre for Law and Democracy, put it more succinctly. The government’s response, he told the CBC at the time, “seems to me to be wildly under-responsive.”

Laroche — bless him — refused to take those blacked-out pages as a final answer. Neither did the province’s information commissioner, Tricia Ralph, who reviewed the government’s response again, and again “recommended” — her only power — the government release the record in full. As she explained,

The public body provided no explanation of how figures that were 8.5 years old at the time the access to information request was made could be relevant to other ongoing settlement negotiations.

Finally, last week — almost two decades after the Horne case began and nearly five years after the CBC filed its freedom of information request — the new Tim Houston government agreed to provide the CBC with what the previous Liberal government had denied: the contents of those the two blacked-out pages from an email attachment sent to then-PC Health Minister Chris d’Entremont way back in 2008. Explained Laroche:

The attachment breaks down the costs over five years, starting in 2002… The $1,024,649.67 was shared among four Halifax law firms: Boyne Clarke, Patterson Palmer, Stewart McKelvey and Wickwire Holm. Lawyers for those firms provided legal advice to the board at the former health authority, as well as two internal professional committees. That $1 million is in addition to the time put in by lawyers in-house.

Finally!

But… wait a minute.

That dollar figure looks suspiciously familiar. Go back a few paragraphs. Knocking off the 67-cents, the amount is precisely the same as the one the government reluctantly gave me in faux response to my 2007 Daily News freedom of information request.

$1,024,649.

Give or take the 67-cents…

And then there’s this. At the time, the government told me the figure included the global amount it had paid to outside lawyers during those five years, not just for the Horne case. Now, it has acknowledged to the CBC that that $1 million was specifically spent on the four private firms for their work on the Horne case.

What that means is that we are still a long way from learning the truth about what our government really spent on private lawyers to advise it on how best to protect bullies and undermine health care research in Nova Scotia.

Tim Houston deserves full credit for moving quickly to release the contents of that blacked-out 2008 email attachment (and for promising to introduce legislation to give our information commissioner the powers she needs to enforce her decisions).

But it is clear the government — now his government — has yet to fully respond to the CBC’s 2016 request for “all information held by the Department of Health related to the costs of the court case involving Gabrielle Horne.”

He should do that immediately.

Nova Scotians deserve to know the actual facts. In full. Still.

A version of this column originally appeared in the Halifax Examiner

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