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Dr. Rajgopal Menon (CBC)

A class-action lawsuit against disgraced pathologist Dr. Rajgopal Menon and the Miramichi Regional Health Authority he worked for has been dismissed.

Three former patients had filed the suit against Menon, who was found to have made thousands of partial or full misdiagnoses between 1995 and 2007. About 100 people had signed up for the class action.

But Justice Jean-Paul Ouellette of the Court of Queen’s Bench ruled the plaintiffs "failed to establish an identifiable class, define workable and manageable common issue, or establish that a class action would be the preferable procedure for proceeding within the requirements of the Class Proceedings Act."

In his written decision, dated March 8, the judge noted that Albert John Gay and Kimberley Ann Doyle had no change in their diagnoses following a review of their pathology slides.

"They have suffered no physical harm and they have suffered no recognizable psychiatric harm as a result of the action of Dr. Menon or the hospital," Ouellette said. "It is questionable as to whether they are appropriate representatives."

Lead plaintiff Jim Wilson, however, does appear to have cause for action against Menon for the alleged misdiagnosis of prostate cancer, Ouellette concluded in his 41-page decision.

Menon is pleased with the decision, according to defence lawyer Rod Gillis.

"Dr. Menon at the present time has suffered some health consequences...and this would be public knowledge, I believe, that he had a stroke that has incapacitated him. And so I think he’s pleased that part of his problems are behind him.

"The result was exactly what we wanted — basically was to oppose the class," said Gillis.

"We're quite prepared to deal with individuals on a harm basis. In this case there's one individual left and if he has a claim, we're quite prepared to deal with that in an expedited fashion to try and resolve it or do something about it.

"But with respect to claims for which people had suffered no psychiatric or physical harm, we have absolutely no interest in resolving or settling those at all because there’s no merit to them."

Ches Crosbie, one of the plaintiffs’ lawyers, disagrees. He filed notice of appeal on Wednesday.

Crosbie said his clients are "disappointed" by the judge’s decision. "But I’ve told them we’re optimistic about the outcome on appeal and they’ve been on board for a fairly long ride of some years now and they remain on board for the appeal."

It could take another year or more to work its way through the courts, he said.

If the plaintiffs hadn't pursued an appeal, Gillis said his advice to Menon would have been to waive any claim for court costs.

"Those court costs would be very substantial for the amount of effort everybody’s gone through," with several boxes of documents, he said.

"Just forgo our right to recover costs and everybody go their way would probably be the best way to resolve this for the people in the Miramichi."

Menon was suspended in February 2007, following complaints about incomplete diagnoses and delayed lab results.

Former health minister Michael Murphy called a formal public inquiry into the pathology work at the Miramichi hospital after an independent audit of 227 cases of breast and prostate cancer biopsies from 2004-05 found 18 per cent had incomplete results and three per cent had been misdiagnosed.

Justice Paul Creaghan found that Menon should have been fired two years before he was suspended.

Creaghan's final report offered 52 recommendations to improve pathology services in the province.