New Brunswick

Judge OK's $2.5M settlement for patients misdiagnosed by Miramichi pathologist

A judge has approved the settlement reached in a class-action lawsuit against Horizon Health Network and a former pathologist over thousands of pathology samples misdiagnosed at Miramichi Regional Hospital dating back to 1995. 

Lawsuit was launched on behalf of patients whose tissue samples were tested by the late Dr. Rajgopal Menon

Jim Wilson, one of the representative plaintiffs in class-action lawsuit against Horizon Health Network and Dr. Rajgopal Menon, said he was treated for an infection for three years before it was discovered he had prostrate cancer. (CBC)

For Jim Wilson, it's been an 11-year wait. He counts himself as a lucky one — he's still alive. 

In 2004, he was misdiagnosed. For three years, he was treated for an infection instead of the prostate cancer he actually had.

Wilson was one of three representative plaintiffs in a class-action lawsuit launched in 2008 against Horizon Health Network and Dr. Rajgopal Menon. The pathologist misdiagnosed or misread thousands of test results like Wilson's at the Miramichi Hospital.

Dr. Raj Menon was found to have partially or fully misdiagnosed thousands of pathology samples in New Brunswick between 1995 and 2007. (CBC)

After 11 years, that lawsuit came to an end Thursday when Court of Queen's Bench Justice Jean-Paul Ouellette accepted a $2.5 million settlement agreement. 

"I'm glad it's over and somebody has been held accountable, that's my main objective," Wilson said outside the courthouse. 

The funds will compensate patients like Wilson and about 3,400 others whose tissues were tested for cancer or cancer-like disease from 1995 to 2007, but mistakenly diagnosed.

An estimated 972 patients were harmed in some way. 

Menon died in 2015, but the lawsuit continued against his estate.

'Best interest'

"We feel the settlement agreement is in the best interest of the class," said Ray Wagner of the Halifax-based serious injury law firm Wagners who represented the plaintiffs. 

"This was a compromise and a hard-fought settlement, to say the least," Catherine Fawcett, a lawyer representing Menon's estate, said in court. "The defendants do not admit liability, they do not admit negligence." 

The judge also agreed to allocate $1.1 million of the settlement for legal fees and other payments, leaving about $1.4 million for compensation to class members.

Lawyers for Menon's estate and Horizon declined to comment outside court. 

David Hashey and Catherine Bowlen, lawyers representing Horizon Health Network, leave the Miramichi courthouse after the judge accepted the settlement agreement. (Shane Magee/CBC)

Once a formal notice of the settlement is published, people have 210 days to file a claim for payment.

It's not clear how many of the patients affected by Menon have died since the case was launched. 

Two objections were raised to the terms of the settlement by family of patients who have died. The terms mean those families will not be eligible for payments. 

None of those who opposed the terms were present in court. 

Families notified of hearing

Ches Crosbie, a lawyer involved in the start of the lawsuit, leaves court with Wagners lawyers Maddy Carter and Ray Wagner. (Shane Magee/CBC)

The judge initially indicated he would want to hear directly from those people, which would mean adjourning the case until another day. 

Lawyers on all sides said people were notified of the hearing and could have attended court to express their concerns. 

"Certainly we don't think it's perfect," Wagner said of the terms. "We think it's fair and reasonable."

He said extending the settlement to the estates of patients who have died would add more administrative costs when processing settlement claims, diminishing the amount available for payouts. 

Living members of the class who meet certain criteria can receive between $750 and $50,000 each.  

Menon's estate will be required to pay $525,000 of the $2.5 million settlement fund. Horizon will pay the remaining amount. 

Should have been fired, inquiry found

A judge will decide Thursday whether to approve a long-running class action lawsuit against Horizon Health Network and former pathologist Dr. Rajgopal Menon. (Shane Magee/CBC)

A public inquiry found Menon partially or fully misdiagnosed thousands of pathology samples. The judge overseeing the inquiry found the doctor should have been fired two years before he was suspended.

The lawsuit alleged Menon and the hospital breached their obligations between January 1995 and February 2007. Over the years, concerns were raised about the quality of his work, including 25 complaints. 

He was fired in 2007. 



An independent review was carried out by an Ottawa lab of 5,271 of his diagnoses. 

There were 418 cases of missed cancer, including 321 with the potential to cause significant harm to the patient, according to documents filed in court. 

There were a further 524 cases of missed "pre-cancer."

There were also 743 cases of over-diagnosis with 631 of those potentially resulting in unnecessary or overly aggressive treatment. 

There were 16 diagnosis of the wrong type of cancer.

Comments

To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.