No reason to hide 'damning' cancer lab reviews: lawyers

A Newfoundland and Labrador health authority has failed to make a case to keep reviews of a controversial St. John's lab secret, lawyers for a pending inquiry argue.

As well, court documents show that a St. John's pathologist described the reviews as "fairly damning," and that commission lawyers don't believe Eastern Health's key argument about protecting the integrity of peer reviews.

Eastern Health was appearing at Newfoundland Supreme Court in St. John's on Wednesday, arguing that the reviews of two external experts should not be released to the public when Justice Margaret Cameron begins hearing evidence on flawed hormone receptor tests next month.

The experts were called in after Eastern Health realized in 2005 that its pathology lab was returning false reports of hormone receptor tests, which are done to help determine the course of treatment for breast cancer patients.

Cameron's inquiry was called last year after documents filed with a class action lawsuit showed that more than 300 patients were wrongly excluded from being considered for antihormonal therapies, especially Tamoxifen.

Eastern Health officials are not commenting on the authority's request, but in court documents, the authority argues that releasing the external reviews would expose quality assurance experts to scrutiny, and would hinder experts from being able to speak candidly.

But a memorandum prepared for the court this month by Bernard Coffey and Sandra Chaytor, co-counsel for the Commission of Inquiry on Hormone Receptor Testing, dismisses the argument, in part because the authority's own peer review policies were not followed.

"Clearly this was not peer review," the memo states at one point.

"The anxieties articulated concerning the impact disclosure of the reports would have on peer review are ill-founded as this exercise was not one of peer review.… No evidence has been put forward by Eastern Health to substantiate that its peer review policy was otherwise complied with."

Coffey and Chaytor argue that the reports should not be protected under the Evidence Act.

Eastern Health asked Diponkar Banerjee, the program director for cancer pathology of the British Columbia Cancer Agency, to review the lab procedures in September 2005.

The authority also asked Trish Wegrynowski, a technologist at Mount Sinai Hospital in Toronto, to review the lab's work.

The contents of the reports are not known, but the memo by Coffey and Chaytor cites a Dec. 17, 2005, letter by pathologist Dr. Beverly Carter, who described them as "two fairly damning reports."

Robert Ritter, executive director of the Newfoundland and Labrador Medical Association, said his organization supports Eastern Health's bid, in part because releasing the reports would set an ethical precedent.

Ritter said anything resembling a peer review of professionals should remain confidential, and that releasing the reports could send a chill through the medical community.

"So people are going to think twice before they volunteer information, or think twice in terms of what information they're going to volunteer," he said.

But Dr. Michael Goodyear, a Dalhousie University oncologist and assistant professor, said the breast-cancer testing scandal has raised disturbing questions about the state of laboratories today that need to be answered by the inquiry.

"Only if everyone puts their cards on the table and all the documents clearly available are we really going to get to the bottom of that," said Goodyear, who has written an affidavit in the court case on behalf of participants in the class action suit, which was certified to proceed last year.

Lorraine Michael, the leader of the New Democratic Party in Newfoundland and Labrador,  disagrees with Eastern Health's argument that Cameron can privately scrutinize the reviews without the public seeing them.

"I'm hoping that the documents are going to be fully disclosed because I think people should know everything," Michael said.

The Canadian Cancer Society is also asking for the reports to be released, so that patients can learn what happened.

"One of the goals of the inquiry is to determine what happened between 1997 and 2005 at Eastern Health," said Emma Housser, who is working with the society's provincial division on the hormone receptor issue.

"We feel that these records are part of full disclosure and are information that would help determine what happened."