No decision on Lahey bid to dismiss lawsuit

  • Attorney-General Kathy Lynn Simmons (File photograph by Akil Simmons)

    Attorney-General Kathy Lynn Simmons (File photograph by Akil Simmons)

A former premier reaffirmed his support yesterday for the Bermuda Government’s legal action against Lahey Clinic to be dropped.

Alex Scott, Progressive Labour Party premier from 2003 to 2006, said he was “still of the same mind that I was when I put my name to the document”, which he signed with ten other past and present members of the island’s legislature last May.

His view was backed by Progressive Labour Party MPs Kim Swan and Zane DeSilva, who also signed the document, as well as by former independent MP Mark Pettingill.

They commented after a judge in Boston reserved judgment on an application by Lahey to have the case dismissed.

The Government complaint named former PLP premier Ewart Brown as a “co-conspirator” and claimed he conducted “excessive, medically unnecessary and frankly dangerous scans” at his two private clinics in Bermuda for his own “enrichment” and gave Lahey a cut of the fees he collected from insurers.

Lahey filed its motion to have the case dismissed in April, supported the next month by a legal brief drawn up by Dr Brown’s lawyers and signed by David Burt, the Premier, when he was Opposition leader.

Judge Indira Talwani heard a motion for dismissal filed by the hospital at a hearing in Massachusetts District Court on Wednesday afternoon.

A court document provided to The Royal Gazette showed the motion was “argued and taken under advisement”, with no decision yet on whether the proceedings will be allowed to continue.

The Government filed its lawsuit against Lahey, a Massachusetts-based teaching hospital, in February last year, when the One Bermuda Alliance was in power.

It alleged that Dr Brown and the hospital conspired on a “wildly successful” and “unlawful” enterprise that profited both “at the expense of the Bermudian government and people” — claims that the former PLP leader and Lahey strenuously deny.

No date was set on Wednesday for Ms Talwani to issue her ruling on whether the lawsuit would go ahead, but court documents showed that the judge also denied leave for the brief from local supporters to be filed.

Mr Scott said: “While I do not have the judge’s decision in front of me, I am not moved by the ruling. I have been a patient of both Lahey and Dr Brown’s Bermuda Healthcare Clinic for probably 20 years.

“I have absolutely no question or hesitation about the medical attention and care at both facilities.” Mr Scott added he had no idea why the Government had continued with the case.

He said: “I honestly don’t know; the Attorney-General would be the one to give enlightenment on the status or rationale for it. It may all come back on the Bermudian taxpayer.”

Mr Swan said yesterday that his views were unchanged and added: “What I signed, I stand by. It’s self-explanatory.”

Mr Pettingill added: “Of course, my position remains the same”.

Mr DeSilva also signalled his support and said he “wouldn’t sign something if I didn’t agree with it and didn’t believe it”.

Kathy Lynn Simmons, the Attorney-General, is understood to have travelled to Boston with Acting Solicitor-General Shakira Dill-Francois for Wednesday’s civil hearing.

A spokeswoman for the Attorney-General’s Chambers referred The Royal Gazette yesterday to a statement from Ms Simmons last week.

The Government Senate Leader said then: “In accordance with professional protocol, the Attorney-General’s Chambers will not comment on any active matter that is before the courts.

“However, where it is appropriate and in the public interest, upon conclusion of any matter, including the ... Lahey case, details of the actions taken will be provided.”

The Royal Gazette asked Lahey for comment, but did not receive a response by press time.

Giselle Joffre, the attorney who obtained the 11 signatures on behalf of Dr Brown, said that Ms Talwani had indicated that she would make a fast decision on the Lahey application for dismissal.

Ms Joffre added that Ms Talwani “plans to decide it fairly quickly — I can’t say what that means in this context, but she did say she would resolve it quickly”.

The 11 are known as amici curiae or “friends of the court”.

Ms Joffre said the filing of an amici brief at the dismissal stage was “unique and novel — we undertook to do it because we view the case as unique and novel”.

She added: “In that way, the denial by the judge is not entirely unexpected. It was a procedural denial because procedurally she didn’t think it appropriate to consider the argument at this stage.”

She added that the same points could be brought back to the court with a different brief later in the case.

Ms Joffre said: “One reason we took this novel approach is that we thought it was important that some of the Bermudian context was necessary for her to understand the allegations.”

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

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