Manitoba judge upholds decision denying sisters out-of-country care funding for chronic illness

Identical twin sisters who share the same chronic illness won't have a surgical treatment covered by the Manitoba government, after a Court of King's Bench judge upheld a decision denying them funding.

Justice Colleen Suche said in a Dec. 30 ruling that a Manitoba Health board's decision to deny Kelsey and Kelly Fehr's requests to fund further treatment for lipedema was reasonable, "while not perfect."

Lipedema causes painful fat buildup and swelling in the arms and legs. Left untreated, it can lead to cellulitis and sepsis.

The Fehr sisters had applied for a judicial order to quash a 2023 Manitoba Health Appeal Board decision. The board's decision denied their appeal of Manitoba Health's ruling on funding, but the sisters argued it was unreasonable.

The sisters had applied three times for funding for liposuction surgery in the U.S., and were denied by Manitoba Health each time.

However, after an appeal to the Manitoba Health Appeal Board, they got approval in 2020 to have the procedure at a U.S. clinic. The specialized treatment, which requires multiple surgeries, is not available in Canada.

But in 2022, Manitoba Health denied a request to fund the followups, after the sisters had already gone through the first round of liposuction.

The department said in its decision the procedure is not the standard of care for lipedema, and that it is an "emergent treatment," the efficacy of which still hasn't been established.

The sisters argued the decision was unreasonable, saying Manitoba Health was aware they would have to undergo several surgeries when the treatment was first approved.

They said the department's appeal board should have only considered the procedure's effectiveness, not current standards.

Manitoba Health ruling justified: judge

In her decision, Justice Suche said Manitoba Health clearly stated the sisters would need prior approval for followup treatments when the provincial department signed off on the first surgery in 2020.

She also dismissed the sisters' argument the appeal board had considered the wrong question, saying Manitoba Health concluded it was an emergent treatment anyway, which would not be funded according to the Health Services Insurance Act.

"The [Manitoba Health Appeal Board] decision does not, however, provide any analysis. Put simply, the board did not answer the critical question of why it agrees with Manitoba Health," the judge said.

"Where I differ from the applicants, is that when I read the decision as a whole, in light of the record, including the parties' submissions, I find an internally coherent and rational chain of analysis that is justified by the facts and law involved."

Manitoba Health based its decision that the treatment's efficacy was still unproven on a 2022 report by the Canadian Agency for Drugs and Technologies in Health, Suche's ruling says.

However, "the meaning and interpretation of the 2022 report was an issue before the board," the judge's ruling said.

She said the sisters "submitted several studies, medical journal articles … a standard of care document from the U.S., various guidelines from other countries, and the letter from the surgeon who performed their procedures" to support their argument that the liposuction surgery is not an emerging treatment.

She said Manitoba Health had addressed those submissions, pointing out that the studies the sisters had submitted to the appeal board were referenced in the 2022 report.

"Guidelines from other countries were not standard of care documents, and while liposuction was the standard of care in the U.S., and perhaps other countries, it was not the standard of care in Canada," Suche said.

The judge said the report "identified deficiencies in the studies, which led to the conclusion that the quality of the evidence was limited, and further studies were required."

Such wrote that she was "satisfied that the decision of the board in this matter, while not perfect, was reasonable," and dismissed the application to have the board's decision quashed.

She made no ruling on costs, but wrote the "parties may speak to costs if they are unable to agree on same."