Lawsuit fears trumped ethics in botched cancer tests: lawyer

St. John's health managers appear to have been far more worried about being sued over flawed cancer tests than the ethics of informing patients, a lawyer says.

Testimony at the judicial inquiry into flawed hormone receptor tests at Eastern Health has focused on deepening concerns that senior executives had in 2005, as they became aware of problems with their pathology lab.

In a note, former chief executive officer George Tilley described the problem as "explosive," although that view was not communicated at the time to the authority's board, the inquiry was told.

But the inquiry was told Wednesday that Eastern Health executives were in a tug of war for months in 2005 about what to do.

Among other things, then health minister John Ottenheimer pressured Tilley to take the issue public in July 2005.

Patients were not told, though, until October 2005. By that point, the inquiry was told, lawyer Daniel Boone advised not sending a letter to patients about retested lab results, as it could increase Eastern Health's exposure to liability.

Ches Crosbie, the lead lawyer in a class action lawsuit that was certified last year by Newfoundland Supreme Court, reacted strongly to the revelations about the delay in informing patients about problems with the lab.

"There's input from people in communications, input from lawyers, insurance companies — what about ethics?" he said.

"This was primarily an ethics issue," said Crosbie, adding that a director of ethics did not become involved in the issue for another year.

Eastern Health first disclosed problems with hormone receptor tests in the fall of 2005, when Mount Sinai Hospital in Toronto was engaged to retest hundreds of samples.

The scope, however, of the problem did not emerge until the spring of 2007, when documents filed in response to Crosbie's suit showed the problem was far worse than Eastern Health had publicly disclosed.

Kept out of loop, says Dawe

On Wednesday, Joan Dawe, the volunteer chair of Eastern Health, testified that she had been kept out of the loop for some time as Tilley and other executives grappled with troubles at the lab.

She received an e-mail from Tilley on July 20, 2005, regarding what he called "potentially a major clinical issue." The day before, however, Tilley made handwritten notes in which he used the words "explosive" and "the sooner the better."

In the e-mail to Dawe, Tilley wrote that there was no need to go public with the issue "until I know the size and shape of it."

Asked by inquiry counsel Bern Coffey if she would like to have been told at that time that Tilley "saw this as an explosive issue," Dawe replied, "Absolutely."

Dawe, who testified for six hours on Wednesday, said, "I'm disappointed," when asked to respond to the delay in learning about the seriousness of the lab's problems.

Working on a plan

Documents tabled at the inquiry, though, show that communications staff at Eastern Health had begun working on a plan to inform the public about the tests. A draft news release was written in July — before Tilley informed Dawe — but was not released.

Instead, Eastern Health did not begin giving media interviews on the subject until October 2005, when advertisements were also placed in local media.

Dawe had opened her testimony by apologizing on behalf of Eastern Health over mistakes at the pathology lab.

The inquiry is examining how the lab came to produce hundreds of inaccurate results in its pathology lab between 1997 and 2005. The inquiry's mandate is not to assign blame, but to determine facts.

Tilley, who resigned under a cloud in July 2007, has not yet testified at the inquiry, but is expected to do so.

Dawe was expected to continue her testimony on Thursday.