Eastern Health can't win breast cancer lawsuit: premier

A St. John's-based health authority facing a class-action lawsuit over erroneous breast cancer testing cannot win the court battle, Premier Danny Williams said Monday.

"Speaking as a lawyer now — I'm not speaking as the head of government — but in my opinion there is liability here, I would think, down the line through Eastern Health for the problems that have arisen here," Williams told reporters.

Williams made the comments several hours after government disclosed that as many as 24 living cancer patients still had not received the results of retests done on samples taken years ago to determine whether they would benefit from antihormonal therapy, such as Tamoxifen.

In a briefing, officials said that 19 of those patients could not be tracked down, while the families of 19 deceased patients had also not been told about retests.

A judicial inquiry began hearing evidence on what went wrong at the Eastern Health pathology lab between 1997 and 2005, and what authority and government officials did after learning about it.

Last year, Newfoundland Supreme Court certified a class-action lawsuit registered by St. John's lawyer Ches Crosbie.

Province not named in suit

The claim, which does not name the Newfoundland and Labrador government, does not specify damages, which Williams suggested could be a complicated issue.

"The question of liability and the question of damages are two completely different issues," Williams told reporters.

"[This] ultimately will hopefully not be decided by a court. Hopefully it can be settled, because my preference is not to see any of these people put through further anguish."  

The inquiry has been gathering evidence for less than four weeks, but the public has already heard plenty, including testimony from health ministers who were in the dark about how widespread problems were.

The inquiry has also been told about public briefings that lacked complete information, and e-mails from health officials who seemed fixated about negative publicity and media coverage.

Williams's willingness to talk about the prospects of the class-action suit appear to fly against the prevailing mood of some officials, as documents have frequently shown a worry about litigation.

For instance, Health Minister Ross Wiseman testified last week that Eastern Health's chief executive officer told him that lawsuit fears prompted the authority to withhold controversial data about lab testing errors at a December 2006 public briefing.

Richard Rogers, a St. John's lawyer who is representing a dozen clients in the case, including the families of two patients who have died, said Williams's comments are welcome news, even if the provincial government is not the target in the case.

"Even Danny [Williams] has been disappointed with the way some things have unfolded, and he really does run a tight ship. I've worked with him for a number of years, and I know that that would disappoint and anger him," Rogers said.

"So I think when he sees there are real problems, he'll address them. He won't run and hide from them."

The disclosures on patient contact were made at a technical briefing in St. John's, amid a growing controversy over how well cancer test results were communicated to patients.

Last week, Eastern Health confirmed that two patients had not been given the results of retests done on their samples.

Number of inaccurate results unavailable

At a technical briefing about data collected by the Newfoundland and Labrador Centre for Health Information, officials said the number of living patients who had not been given results may drop to 19, possibly by Monday afternoon.

Officials did not know how many of the applicable patients had been given inaccurate results.

As well, Wiseman said Monday, there is one breast cancer patient who has never been told anything about the status of their hormone receptor tests.

"Arrangements have been made for the oncologist to meet with that person this week to do that," Wiseman said Monday.

Peter Dawe, executive director of the Canadian Cancer Society's Newfoundland and Labrador division, said Monday's revelations confirm how confusing things have been for patients.

"My question would be: Who is taking responsibility for contacting these people now?" Dawe said.

In another development, officials are going to double-check that approximately 420 breast cancer patients were actually given their results by their respective physicians. A government official said the move is a precautionary one.

The issue of patient contact has surfaced several times during a judicial inquiry that began collecting evidence in March, on why hundreds of breast cancer patients between 1997 and 2005 had been given inaccurate results on hormone receptor tests.

The test — which looks for estrogen receptors and progesterone receptors — is critical in determining whether a patient would benefit from an antihormonal therapy like Tamoxifen, a toxic but powerful drug that has been clinically shown to improve survival rates.