Newfoundland Injury Law Blog

Ches Crosbie interviewed on breast cancer testing class action compensation and fees

I appeared on Out of the Fog on January 7 and gave the following interview.  There is an interesting analysis by media commentators at the end of the interview.  Watch the whole interview at our video library or on YouTube.

 Out of the Fog, Rogers, January 7, 2010:

Erin Sulley:                    Those that were affected by the breast cancer testing scandal will be one step closer to receiving their financial settlement from a class action lawsuit.  The settlement will go to Supreme Court in early February for approval.  Last fall Eastern Health agreed to pay $17.5 million in damages to breast cancer survivors.  Between 1997 and 2005 Eastern Health gave the wrong hormone test results to more than 400 people and thousands of people are part of the class action.  The lawyer for the class action Ches Crosbie is with me now to explain the details of the settlement.  Welcome to the show.

Ches Crosbie, Q.C.:       Thanks for having me.

Erin Sulley:                    Now with the settlement, it's divided into categories and each category has a financial mark to it, so can you briefly explain the categories and the amount that's associated with each?

Ches Crosbie, Q.C.:       Well without going into too much detail, the highest category is for people whose cancer recurred and they didn't get tamoxifen because they were tested as a false negative and it turns out they were actually positive all along, and the, you know, the assumption is that someone who has a recurrence of the disease will probably die from that unfortunately.  The amount of compensation there is $75,000.  Now no one is going to trade their good health and survival for an amount of money like that or even an amount of money many times that but, you know, it bears a relationship to what our system of law permits and a relationship to what the class members who were present during the mediation, and there was an advisory committee of five as well as the representative plaintiff, in the last analysis viewed as being a sincere offer of financial amends from the defendant.  And then it goes down to an amount of $1,000 for people who suffered the mental distress of knowing their test results were being, you know, under suspicion and that they may have not received the treatment they should have gotten.  So, it's a range.

Erin Sulley:                    Are there any legal hurdles or difficulties to overcome now, or is the settlement going on as is?

Ches Crosbie, Q.C.:       Well the last hurdle would be the approval of the judge, and no class action settlement is final until the judge says it is, so that's the last hurdle and that's going to be before the Court on the 2^nd of February.

Erin Sulley:                    Okay, and is it true that the law firm receives 30% of the total settlement?

Ches Crosbie, Q.C.:       The fee agreement actually provided for one-third, 33.3%.  We are asking the judge to approve that, as in fact 348 class members who've contacted our firm have effectively already done because they signed similar fee agreements.  So that's a large chunk of the class membership.  The judge has the final say on that and what we decided to do was to effectively donate about $500,000 of that fee to the benefit of the class members and that's because we were paid a significant amount of money for representing their interests at the Commission of Inquiry, so we just felt that that was a reasonable thing that we wanted to do.  So the effective fee, you're right, is around 30% and not 33.3.

Erin Sulley:                    And how do you exactly go about finding the right amount for something like this?

Ches Crosbie, Q.C.:       Right amount in terms of compensation?

Erin Sulley:                    Yes.

Ches Crosbie, Q.C.:       Well you have to do an exhaustive review of the caselaw in Canada, and there are many knotty legal problems that have to do with causation, that have to do with scientific and medical issues, that have to do with the inadequacies of the law here in Newfoundland, which basically doesn't provide compensation for pain and suffering to either estates or to the family members of people who have died through the fault of somebody else.  So there are all kinds of things that had to be factored into the ultimate compensation amount that we arrived at and, you know, ultimately it was an exercise of our best judgment having immersed ourselves in the science and in the law and it's, like I say, it's going to be subject to the judge's own exercise of his best judgment as to whether it's fair and reasonable.

Erin Sulley:                    And who isn't covered at all by this class action lawsuit?

Ches Crosbie, Q.C.:       Well everyone who's in the class is covered.  You may be asking are there people, yeah, there are misdiagnosis events that were uncovered by Eastern Health itself or by, I should say, Mount Sinai because in the process of doing the retesting, the pathology had to be re-read.  In other words the slides which show the tumor and from which opinions were given by pathologists as to whether, you know, the cancer was invasive or whether it was not invasive and therefore was a form of pre-cancer called DCIS.  In about eight cases it was determined that mistakes were made on that, so people may have been over treated, for example with chemotherapy or even mastectomy when they should not have been, or they may been possibly more seriously under treated and not received therapy they should have for invasive cancer.  So those cases, of which there are something like eight of them, are not included in this settlement for a couple of reasons, the main one being that, when I say they're not included they're not included as misdiagnosis claims because this class action was about the failure of the HR hormone receptor testing.  However those people can take independent proceedings and seek compensation still through an independent proceeding, but we want them to know that, and Eastern Health is going to send letters, I understand, directly to those people because they know who they are.

Erin Sulley:                    And is this over for you now?

Ches Crosbie, Q.C.:       Well as of the 2^nd, it will be, you know, 99%.  There may still be some things to deal with or help people out with who are our clients, but yeah after a number of years, I think it will be.

Erin Sulley:                    Well Mr. Crosbie, thank you so much for joining us.

Ches Crosbie, Q.C.:       Thanks for having me.

Erin Sulley:                    Thank you.  And Peter, it is now over to you.

Peter Walsh:                   Well thanks Erin.  Here with me to discuss the class action lawsuit and some other matters is the Telegram panel, the first of the New Year.  Panel regulars, reporter Steve Bartlett and editorial page editor Russell Wangersky are here.  Thanks very much for coming in and Happy New Year.

Steve Bartlett:                Happy New Year.

Russell Wangersky:        Happy New Year.

Peter Walsh:                   Excellent.  Now, so we know some numbers, we have them.  The people most affected by the breast cancer tragedy, really no other word for it, they'll be receiving $75,000, the other people affected between $1,000 and $15,000.  Now Steve, when you heard those numbers, what did you think?

Steve Bartlett:                I mean they seem like sizeable sums, 75 grand seems like a lot of money.  But I think, you know, when you look at someone who's suffered and suffered for a number of years, it might not be that much, you know, I'm sure they're happy with it, but it's not, anyone in the public who thinks that oh this was a whopping number, I don't think it's that much for someone who's suffered and for someone whose lost a loved one.

Peter Walsh:                   Yeah I spoke to one patient today, and they didn't want their name used, but they said it could have been 75 million and it wouldn't matter to them.  So I mean that put it in some perspective for me.  Russell, what did you think?

Russell Wangersky:        Well the number sounds a little different, and one of the things about it is we're sort of trained to think about settlements from the point of view of the American justice system, it's all about much bigger numbers.  I mean what they're really trying to look at is to replace to whatever degree they can the, sort of the lost costs and the trouble, the pain and suffering, but it's, you know, it's a drop in the bucket for anyone who's suffered the loss of a family member or for anyone who's had to wonder the what if question of, you know, would I have had more years, am I going to have more years because of what happened.

Peter Walsh:                   They also, the way they've figured these numbers out, it's lost income, it's just so many lost things like lost income.  There's no real way, especially when you're dealing with like death and your health, how do you put a number on these things, I mean, that's ultimately the challenge, isn't it?

Steve Bartlett:                Yes, well it's impossible really to totally define it.

Peter Walsh:                   That's right, and then at the same time you learn that the lawyer received their 30% and we believe in this case about $5 million.  What do you guys think of that aspect of the settlement, because some people, that rubs some people the wrong way.

Russell Wangersky:        It may rub people the wrong way but it is how contingency systems work.  When you're paying a lawyer at contingency, when you're in a class action, what you're trying to do is get the best legal services you can and pay for them in a way that doesn't completely destroy the value of having a settlement.  I mean if one person were taking on the healthcare corporation and one person were getting a settlement, the legal bill would be a much larger percentage of the take.  I mean what actually ends up happening in class actions is it spreads the costs of the legal coverage.  So it sounds like a big number, but at the end of the day, you know, it really is money well spent for the individuals who have to carry the freight otherwise.

Steve Bartlett:                Yeah, and I think anyone who signed on to the class action knew that, you know, I'm going to lose a substantial portion of the money to the legal fees and, you know, I think they go in full well knowing that and I'm sure the lawyers explained to them, like you know.

Peter Walsh:                   This is what happens.

Steve Bartlett:                Yes.

Peter Walsh:                   And the fact is, if it didn't work that way they may not have any class actions and there may be nothing, you know what I mean, they will get no money.

Russell Wangersky:        Well imagine if you had to fight each case individually, one individual patient against the healthcare corporation, its insurers and other interested party.

Peter Walsh:                   Now we also had news this week of a different settlement in a different tragedy, the Cougar tragedy...

Labels: breast cancer testing settlement class action fees class action settlement compensation