The public will get to see critical reviews of a St. John's lab that produced dozens of inaccurate breast cancer tests, a judge ruled Thursday.

Justice Wayne Dymond ruled Thursday that reviews by two experts will be made public at a pending commission of inquiry.
(CBC)

Newfoundland Supreme Court Justice Wayne Dymond rejected arguments by Eastern Health that two reviews of a pathology lab should not be publicly disclosed when a pending judicial inquiry begins studying why so many tests at the lab failed.

Eastern Health had argued that the reviews of the lab were peer review and part of a quality assurance process, and thus must remain confidential because of the provincial Evidence Act.

However, Dymond did not agree with the lawyers' arguments, and said that the two reviews were neither peer review nor quality assurance.

The lab's work will be a critical focus of an inquiry into how hundreds of breast cancer patients got wrong results on hormone receptor tests, which are used to determine the course of treatment they should receive.

Lawyers for the commission argued that they could not do their work properly without being able to discuss the reports openly.

Dymond noted that Eastern Health's arguments about confidentiality were not borne out by evidence presented to court.

"I have found in this case that the information being requested by Eastern Health is not protected [by legislation] because they are not peer reviews or quality assurance committee reports," Dymond wrote.

Will work with inquiry, Eastern Health says

In a statement, Eastern Health said it will not stand in the way of the reports' release.

The decision "clears the way for Eastern Health to continue to work with the Judicial Commission of Inquiry on the estrogen and progesterone receptor (ER/PR) issue," the authority said in a statement.

The reports were authored by two experts brought in to share their expertise and insight: Diponkar Banerjee, the program director for cancer pathology of the British Columbia Cancer Agency, and Trish Wegrynowski, a technologist at Mount Sinai Hospital in Toronto.

A brief presented by the commission lawyers to Dymond cited a 2005 letter by St. John's pathologist Dr. Beverley Carter, who described the experts' reviews as "fairly damning."

In 2005, after it discovered that a significant problem with its hormone testing, Eastern Health suspended its own lab work in the area, and eventually had hundreds of tests conducted between 1997 and 2005 retested at Mount Sinai.

An affidavit filed with Newfoundland Supreme Court last year showed that of 763 breast cancer patients who had tested negative in hormone receptor tests — excluding them from being considered from Tamoxifen, an antihormonal therapy — 317 had been given wrong results.

The Newfoundland and Labrador government ordered the commission of inquiry after Eastern Health disclosed that the error rate of its hormone receptor tests was several times higher than it had previously acknowledged.

The Newfoundland Supreme Court last year certified a class action lawsuit involving dozens of breast cancer patients.