Assumed patients knew about cancer test woes, lawyer tells inquiry

A St. John's lawyer who advised officials not to issue a written advisory to breast cancer patients testified Wednesday that he assumed they had already learned about testing problems through news reports.

Dan Boone, a St. John's lawyer, represents Healthcare Insurance Reciprocal of Canada (HIROC), which insures hospitals and other health institutions across Canada.

Boone told the Cameron inquiry on Wednesday he was asked in October 2005 for his thoughts about issuing a letter to patients whose hormone receptor tests were being redone because of concerns about the accuracy of the tests.

Boone opposed sending a letter at that time, because it would legally expose Eastern Health, and because he felt such a letter would not be necessary since the issue was already the subject of intense media coverage.

"My understanding, right or wrong, would be that virtually everybody who was involved in this would know about it. So, to some degree, the letter was, if you like, redundant," Boone told Justice Margaret Cameron.

News broke in October 2005 that Eastern Health had begun retesting samples taken from breast cancer patients. Hormone receptor tests are done to determine whether a patient can benefit from the powerful antihormonal drug Tamoxifen.

Boone was asked about patients who may not have heard or read media coverage.

"I never thought of that," replied Boone, who quickly stressed that his advice was only a recommendation to Eastern Health on behalf of his client.

"If someone had come back to me, for instance, and said 'You know, Boone, you're  wrong, all these people don't know, or maybe not even virtually all of them know, and we want to have a more effective communication with our patients,' then that would have changed my reaction to the letter,' " said Boone.

Other reasons cited for avoiding written contact

Eastern Health officials, though, had found reasons of their own not to issue a written letter to its patients. Dr. Bob Williams, the now-retired vice-president of medical services, testified that he preferred direct personal contact, through phone calls, with patients.

As well, Susan Bonnell, the former communications director at the authority, testified that she did not issue a news release when the story broke, because she did not see any need to explain the issue publicly. Bonnell also testified that she had not prepared a communications plan to handle media and patient questions.

The inquiry also asked Boone about whether Eastern Health risked its insurance coverage if it ignored legal advice and mailed the letter on its own.

Boone replied, "Coverage was never an issue here."

In the end, however, a patient letter was never sent at all.

Not asked about litigation in early days of crisis

Meanwhile, Boone testified that he was never asked in the early weeks of the cancer testing crisis for a legal opinion on the issue, contradicting evidence already presented to Cameron.

Boone said Eastern Health contacted him in mid-July 2005 about an emerging problem with hormone receptor tests, which are used to determine whether a patient should receive the antihormonal drug Tamoxifen.

Boone said that while there were meetings and conference calls in the early days and weeks, he was never asked formally for advice on what do about patient disclosure, or about informing the public.

"I went to meetings. I observed them make their decisions," Boone told Cameron.

"I wasn't asked for input at the meetings. And I walked away from the meetings … with some impression as to what they were doing."

Even so, a memo prepared by Bonnell for former chief executive officer George Tilley in 2005 specifically said that the authority had legal advice on the matter.

"Legal counsel and risk management advise against such a disclosure, particularly before the impacted patients have had the opportunity to hear about this from us," Bonnell wrote in a July 22, 2005 memo to Tilley which was tabled early this year at the commission. (In a draft version prepared a day earlier, before Tilley asked Bonnell to revise her recommendations so he could share them with others, Bonnell did not reference legal advice.)

As well, Heather Predham, a risk management official at Eastern Health testified earlier this month she contacted HIROC's lawyer in the early days of the crisis and took what she called "direction" from the agency.

Cameron has often been told during the course of her inquiry that Eastern Health officials were concerned about litigation, particularly a class action lawsuit which was ultimately certified in Newfoundland Supreme Court last year.

Manager insisted no problems with test handling

Meanwhile, Boone also told the inquiry about how early meetings on hormone receptor test problems were focused on whether new lab technology was to blame.

Boone testified that Terry Gulliver, a manager of the St. John's pathology lab, was adamant that his staff members were not responsible for the mistakes.

"Mr. Gulliver told us — people in the meeting as well as me — that he himself was 100 per cent certain that staff were doing the test correctly," Boone testified.

Months later, two external experts found procedures at the lab were sloppy, and that staff had not been properly trained to handle the complex estrogen receptor and progesterone receptor tests, which involve several dozen steps.

The reviews also found that tissue samples were not being handled properly.

Cameron has been told that the reports were not widely shared. In fact, the findings were not even shared with the staff who handled and managed the tests.

Eastern Health went to Newfoundland Supreme Court earlier this year in a failed attempt to block the public release of the reports, arguing they were peer reviews.

Government officials and politicians had not only not been briefed on the reports, but were frequently told that equipment failure was the likely cause.

Joan Dawe, chair of Eastern Health's volunteer board, testified she had been led to believe until early this year that the equipment was to blame, rather than an issue involving staff.