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Excessive tests at heart of Lahey suit

The Government of Bermuda is standing by claims that Ewart Brown conducted excessive and medically unnecessary scans on patients and paid “kickbacks” to scores of doctors on the island.

Lawyers representing the Progressive Labour Party government described how “one person was scanned 20-plus times” and the number of CT and MRI scans overall “skyrocketed” during Dr Brown's term of office, as they reiterated allegations against the former premier at a court hearing in Boston.

The submissions made to Judge Indira Talwani at the United States District Court of Massachusetts on January 31 confirm that the new PLP administration is actively pursuing a civil claim against the Lahey Clinic launched by the former One Bermuda Alliance government.

That complaint, filed a year ago by Trevor Moniz, who was then Attorney-General, detailed an alleged “wildly successful” and “unlawful” conspiracy between Dr Brown and the hospital that profited both “at the expense of the Bermudian government and people”.

Dr Brown and Lahey deny the allegations.

The lawsuit was denounced in Parliament by PLP MPs, including David Burt, then the Opposition leader and now the Premier. Mr Burt, Walter Roban, the Deputy Premier, and health minister Kim Wilson signed a legal brief in May last year in support of Lahey's attempt to get the case thrown out.

Ms Justice Talwani heard arguments on January 31 from Lahey's counsel on why the case should be dismissed — and counter-arguments from the Government's lawyers as to why it should proceed.

A transcript of the hearing, which became available on Monday, shows the Government's position is the same as a year ago, despite a change in the island's political leadership.

It confirms that the PLP government is continuing with a legal complaint that names Dr Brown — PLP leader and Premier between 2006 and 2010 — as a co-conspirator and accuses him of corruption and bribe-taking during his premiership.

The court heard on January 31 that Lahey was paid to read scans by Dr Brown's clinics in Bermuda during a period of time when he was receiving consulting fees from the clinic.

Lahey's lawyer, Terence Lynam, said the scan-reading was entirely separate to the consulting agreements.

But Luke Cadigan, for the Government, said the “illicit” relationship in regard to the scans “doesn't really come into focus until you have a true understanding of Dr Brown's relationship with Lahey”.

Mr Cadigan said: “What you see here is Dr Brown, who has a financial incentive; he's tied to Lahey. He's working to increase reimbursement rates for him and benefit Lahey.

“He's working against precertification or other things that would limit the amount of scanning. He is using all of this as a vehicle to get more revenue for himself and for Lahey.”

Mr Cadigan claimed correspondence between Dr Brown and doctors who referred patients to his two clinics for diagnostic scanning showed he was “inducing” the physicians to order the scans.

“Some people were scanned repeatedly,” he alleged. “One person was scanned 20-plus times. You're going to see, I'm sure, some situations where it was simply not necessary for the treatment.

“So, you know, those are the types of things I think we're going to see based upon the kickbacks that Dr Brown was paying to his doctors in order to get these scans done.”

Mr Cadigan said the rate of CT scans tripled over a two-year period and MRI scans doubled in little more than four years.

He claimed the hospital was guilty of fraud for reading scans that were medically unnecessary — an allegation rebutted by Mr Lynam, who said any fraud would have been committed by the person ordering the medically unnecessary scan.

Ms Justice Talwani reserved judgment on Lahey's motion to dismiss.

Dr Brown told The Royal Gazette in September 2016 that every study ordered at Bermuda Healthcare Services and his other clinic, Brown-Darrell, was screened by experts at Lahey in Massachusetts to ensure it was necessary.

The Royal Gazette asked the Bermuda Medical Council in March last year if it was investigating the allegations made against Dr Brown and other unnamed local physicians in the Government's lawsuit.

Chief Medical Officer Cheryl Peek-Ball said no complaint had been made to the regulatory body.

Dr Brown declined to comment on the case when contacted last night.

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.

Ewart Brown has denied allegations that he acted inappropriately in his dealings with Lahey Clinic (File photograph by Akil Simmons)

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Published February 14, 2018 at 8:00 am (Updated March 01, 2018 at 10:21 am)

Excessive tests at heart of Lahey suit

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