Newfoundland Injury Law Blog

So Now We Have the Truth: Where’s the Reconciliation?

The overarching purpose of the Cameron inquiry into the hormone receptor testing fiasco was truth and reconciliation.  On Monday, March 2, when the report of the Commission is released to the public, we will get truth, certainly more truth than Eastern Health wanted us to know.  But what about reconciliation?

It is an unavoidable fact that Eastern Health has never admitted wrongdoing and has not formally bound itself to pay a penny to injured patients.  Anyone who looks in the court file or on my website will see that responsibility is denied.

Yes, the lawyers for Eastern Health’s insurance company have been willing to work toward a court assessment of money damages in a selection of patient cases.  And yes, I too thought that this seemed like a good plan.  But the value of that plan to class members is doubtful without a full assumption of responsibility by Eastern Health.  Without that, all the court can give is an opinion on amounts which might be payable – if Eastern Health were responsible.  There would be no enforceable judgment.  Without an admission by Eastern Health that it is responsible to pay damages to injured class members, Eastern Health is not bound to pay anything, even after court assessment of damages in individual cases, and not even to the individuals whose cases have been heard and whose damages have been assessed.

This way of proceeding is also time consuming, and time is something many class members do not have on their side.

So to fulfill the reconciliation objectives of the public inquiry, there are two things Eastern Health should do and do right away.  

It should bring emotional closure to injured patients by admitting that it did wrong.  And it should complete that closure with a tender of financial amends, by agreeing to mediation in St. John’s with a national profile mediator and with the government and the doctors’ insurer at the table.

The creation of a settlement fund does not require an exact calculation of how much ultimately will be paid out.  It just requires that the victims be reasonably confident that claims are covered.  If at the end of the day there is a surplus, it can go back to the donor, or be applied to other good purpose.  For one recent example of a settlement in a high profile suit, the Maple Leaf Foods tainted food class action, see http://www.mapleleafclaim.com/claim.php?locale=en_CA&page=court_documents.  

The point is, if the parties are willing, an almost infinite variety of creative solutions are available to honor the rights and interests of everyone by putting a global settlement fund in place and by doing it soon.  A mediation to achieve a timely solution can take place within months.

Eastern Health should admit their wrongdoing and take responsibility to make financial amends to the injured.  It should agree to mediation.  We have the truth, now injured patients – and the public – have a right to expect Eastern Health to do the right thing.  They have a right to reconciliation.

Labels: Cameron Commission damages mediation truth and reconciliation