Thousands Injured by Cover-Up and Incompetence at Eastern Health

2008 will go down in the legal history of Newfoundland and Labrador as the year of the Commission of Inquiry into Hormone Receptor Testing.  The Commission hearings provided legal and political theatre which captured the attention of the media and many Newfoundlanders and Labradorians who watched the proceedings on community television and on the internet.  The Inquiry probably would not have been called except for the class action which Ches Crosbie Barristers brought on behalf of the thousands of patients who were caught up in the breast cancer testing scandal at Eastern Health and who were injured in varying degrees as a result.

I am hoping that 2009 will be the year in which a global settlement is reached in the class action.  Much work must be done of course, and we are not the only parties involved and do not control the pace at which the action will proceed.  But we’ll try our best to bring the class action to a conclusion on the common issues in 2009.

From the standpoint of the class action, the Inquiry sapped the will of Eastern Health’s insurers to fight on liability.  Embarrassing revelations of the level of competence at Eastern Health and of their culture of cover-up rained down on them day after day, and the question of liability can probably be regarded as effectively resolved. 

The pathologist Dr. Khalifa established the ER/PR testing program on a faulty theoretical basis in 1997 and provided the rest of the pathology community with poor quality slides to read.  

Unfortunately, most of the pathologists except those in Clarenville, accepted the poor quality slides and trusted Dr. Khalifa for guidance. This trust was misplaced and led to disaster.

The overall tenor of the Laing and the Eastern Health Submissions to the Inquiry was is that a “systemic” failure occurred, for which no one is responsible.

The response to that is that three individuals are principally responsible for the testing debacle: Dr. Khalifa, who lacked the scientific, practical and managerial knowledge to establish the test competently; Mr. Gulliver, who was 10 years off the bench and who completely lacked practical or theoretical knowledge of the test; and Dr. Cook, who failed to educate himself in the test, acquiesced in poor quality material, ignored problems when they arose, and whose instincts were to withhold full disclosure when in 2005 the scope of the problem finally became impossible to ignore.

The testing failures, and the failures in disclosure, are fundamentally failures of the leadership of Eastern Health. However, responsibility was not only deep but broad.  None of the pathologists in St. John’s or the lab technical managers bothered to walk down the hall to access resources and instruct themselves. A culture of cover-up informed the leadership from Mr. Tilley down, but permeated the organization at all levels. The words of the Miramichi Commission define the task for Eastern Health: 

In the future, the laboratory … must be operated under a culture of patient safety, rather than a policy of risk management in a situation where a problem arises.

On behalf of the Members of the Breast Cancer Testing Class Action, I made extensive written submissions on the testing debacle, one in chief and one in reply.  I hope I adequately gave them a voice.  Commissioner Cameron will hand in her report at the end of February 2009.