Litigation threat kept lips locked on cancer tests, minister says

A former Newfoundland and Labrador health minister says government officials kept quiet about flawed breast cancer testing because of the spectre of a lawsuit.

Tom Osborne also said that while he is angry Eastern Health withheld critical information about flawed laboratory testing, he is confident that the authority has fixed severe problems that triggered the judicial inquiry, where he testified Wednesday.

Osborne told Justice Margaret Cameron that he and other officials were constantly advised they could not publicly address the then-widening scandal over flawed hormone receptor testing because the matter was headed to the courts.

The first statements of claim were registered in 2005. A class action lawsuit was later organized, and was certified by Newfoundland Supreme Court last year.

Osborne was appointed health minister in March 2006, several months after the first media reports surfaced that some patients may have received inaccurate results on their hormone receptor tests, which are used to help guide cancer treatment.

"You know, I could have been a maverick minister and said I'm not going to listen to the standard general advice that we always receive, but there's a good reason we're given that advice," Osborne told the inquiry.

The inquiry is examining why the lab produced hundreds of faulty results between 1997 and 2005 on hormone receptor tests, which erroneously excluded patients from being considered for therapies like Tamoxifen, which has been clinically shown to improve a breast cancer patient's chances of survival.

Bern Coffey, co-counsel for the inquiry, who pressed Osborne on the litigation issue during much of Wednesday's testimony, pointed out that the people advising Osborne to stay silent were not actually lawyers.

Osborne said that was true, but the general practice in government is to refrain from commenting on an issue that involves a court action.

Justice Cameron asked, "So what you're telling me is that when you were minister of health, you accepted that the cause of the problem within the lab would not become public until the class action made its way through the courts?"

Osborne replied, "That's correct."

He added that he did not appreciate until he later became justice minister "the timelines that those class action cases can take."

"But," Coffey responded, "you didn't ask either, did you?"

"No, I didn't," Osborne said.

Anger over concealment

Meanwhile, Osborne — who had described the anger he felt in May 2007, when as justice minister he learned that officials failed to brief him on details that were passed directly to Premier Danny Williams — said he remains upset over how Eastern Health has handled the case.

"I amongst others are perhaps angry at Eastern Health that this information — well, not perhaps, I am angry at Eastern Health that this information didn't come out," said Osborne.

"But I think it is important to say as well that they did do a lot of very positive things in ensuring that the lab restored its credibility or confidence and was considered a centre of excellence."