Gay et al v. RHA B and Estate of Menon
New Brunswick Court File: N/C/41/08
In cooperation with Chesley F. Crosbie, Q.C. of St. John’s, Newfoundland & Labrador and George A. McAllister of Fredericton, New Brunswick, the Wagners Law Firm is investigating the recent announcement of possible pathology errors and misdiagnoses which may have occurred at the Miramichi Regional Hospital in New Brunswick.
On February 11, 2008, the Miramichi Regional Health Authority announced that in December 2007 and January 2008 independent reviews were conducted on a number of biopsy and other pathological procedures. 227 cases of prostate and breast cancer biopsies from 2004-2005 were examined. These independent reviews found that 18 per cent of the cases had incomplete results, and 3 per cent were misdiagnosed. 41 cases included incomplete protocols or examinations and or miscalculated the stage of the cancer. There were seven cases of undetected cancer, with perhaps as many as four other cases from the 227 examined that might be cancerous, contrary to the original diagnosis.
On the same day the Minister of Health for the Province of New Brunswick, Michael Murphy, announced that as a result of the independent reviews, approximately 15,000 results related to tests for breast and prostate cancer would be reviewed as a result of possible misdiagnosis or errors attributed to a former pathologist with the Miramichi Regional Health Authority. The number of pathology tests to be reviewed has now increased to 24,000.
A pathologist is a physician who specializes in diagnosing diseases by examining tissue, blood and body fluids in a laboratory.The 24,000 cases that are to be re-examined encompass the tests performed by the former pathologist from 1995 to February 2007, while he was employed with the Miramichi Regional Health Authority. The re-examination will also include about 100 cases the former pathologist reviewed while working for a brief period for Regional Health Authority 4 in Edmundston in 2002. While it appears that many of the 24,000 cases involve either breast or prostate cancer, there are other illnesses that may have been misdiagnosed.
Minister Murphy has also asked the RCMP to investigate the matter to determine if any criminal charges are warranted.
Justice Paul S. Creaghan, a semi-retired judge of the New Brunswick Court of Queen’s Bench, has been appointed to head a public inquiry into and report and make recommendations concerning:
a) The delivery of pathology services at the Miramichi Regional Health Authority from January 1994 to date;
b) The sufficiency of the review and response to complaints regarding such pathology services; and
c) The adequacy of the procedure for granting hospital privileges to and disciplining medical practitioners both at the Miramichi Regional Health Authority and elsewhere within New Brunswick.
The inquiry is expected to begin hearing witnesses on May 5, 2008 at 9:30AM at l’Université de Moncton, Pavillion J.R.-Frenette, 55 Chemin Crowley Farm Road Moncton, New Brunswick.
Update – April 6, 2016
A copy of the Certification Order which has now been signed by the Honourable Justice Ouellette is available for viewing under the Court Documents tab along with the Notice of Certification, Opt-Out and Opt-In forms.
We suggest that all Class Members take a moment to read the Order and documents so that they are familiar with their legal rights concerning the class proceeding. Please contact us if you have any questions.
The deadline for individuals wishing to opt-out or opt-in to the class action is July 1, 2016. Wagners must receive any completed opt-out or opt-in forms on or before this date.
Notice of Certification is now being carried out pursuant to the terms of the Order.
Update – March 24, 2016
All parties have agreed to a further extension to supply the answers to the Interrogatories served by the Defendants. The answers are now due on April 29, 2016.
Update – February 1, 2016
All parties involved in this class action are continuing to deal with the answers to the numerous Interrogatories which must be provided by March 31, 2016.
Update – November 30, 2015
All parties have now served Interrogatories that must be answered on or before March 31, 2016.
Update – November 16, 2015
We have sent correspondence to the Court of Queen’s Bench in Miramichi, New Brunswick on today’s date to advise that issues which necessitated the scheduling of a case management conference on November 18th have been resolved. We have requested that the conference by removed from the Court’s schedule.
Update – October 13, 2015
We have received correspondence from the Court of Queen’s Bench confirming that a further case management conference call will be held on November 18, 2015.
Update – October 1, 2015
Further to the case management conference held before Justice Ouellette on yesterday’s date, a number of concessions and agreements amongst the parties were dealt with. The parties are now in the process of exchanging their respective Affidavits of Documents.
Update – September 25, 2015
We have received correspondence from the Court of Queen’s Bench in Miramichi concerning the scheduling of a case management conference call to deal with the form of the Certification Order and other matters.
The conference will proceed on September 30, 2015.
Update – August 21, 2015
Pursuant to the instruction of Justice Ouellette, on today’s date Wagners sent its proposed form of Order with respect to certification to the Court of Queen’s Bench in Miramichi.
Update – August 10, 2015
Counsel for the Defendant, RHA B (formerly RHA7), has provided the Defence on behalf of the Miramichi Regional Hospital. The Defence is in response to the Cross-Claim filed by the Estate of Dr. Menon.
The Defence may be viewed under the Court Documents tab.
Update – July 28, 2015
Counsel for the Estate of Dr. Rajgopal Menon recently filed its Defences with respect to the Miramichi Pathology class action.
Copies of the Defences may be viewed under the Court Documents tab.
Update – July 21, 2015
A copy of the Plaintiffs’ Second Amended Statement of Claim was filed with the Court of Queen’s Bench in Miramichi on June 30, 2015. The amended claim is available for viewing under the Court Documents tab.
With respect to the Notice to the Class Members and the form of Order, an agreement was not reached with the Defendants. These issues will be dealt with at the next Case Management Conference on August 19, 2015.
Update – June 4, 2015
Further to all Counsels’ appearance before Justice Ouellette at the Case Management Conference held on June 2, 2015, the following schedule to deal with various matters concerning the continuance of the class action has been implemented:
- June 15, 2015 – Draft Orders, Notice to Class to Defendants’ Counsel
- June 30, 2015 – Final Orders, Notice to Class to be filed
- June 30, 2015 – Statement of Claim Amendments to be filed
- July 31, 2015 – Defences to be filed
- August 11, 2015 – Defence to Cross-Claim to be filed
- August 19, 2015 – Next Case Management Call
- September 30, 2015 – Affidavits of Documents
- November 30, 2015 – Interrogatories
- March 31, 2016 – Answers to Interrogatories
Also discussed during the Conference were issues surrounding the provision of the Notice of Certification to the Class Members which will be carried out once the form of Notice has been approved by Justice Ouellette.
Update – May 6, 2015
We were advised today that D. Rajgopal Menon passed away approximately one week ago. His Counsel will be making efforts to have an administrator appointed to deal with the class action litigation.
Update – April 8, 2015
We continue in our discussions with Counsel for both Defendants to streamline the litigation, deal with Notice of Certification and the scheduling of important timelines concerning the ongoing litigation.
Update – March 9, 2015
Wagners sent correspondence today to Counsel for both Defendants suggesting that disclosure and document exchange be carried out to continue the process of furthering this class action.
Update – February 17, 2015
We have received correspondence from the Clerk of the Court confirming that Justice Ouellette will preside over a Case Management Conference on June 2, 2015.
Update – February 10, 2015
We have been contacted by the Clerk of the Court to determine if Counsel are available on June 2, 2015 for the Case Management Conference.
Update – January 29, 2015
We have been advised by the Clerk of the Court that the Honourable Justice Ouellette is not available for a Case Management Conference on February 3, 2015.
The Court has requested Counsels’ availability for the remainder of the spring.
Update – January 8, 2015
Wagners has sent correspondence to the Clerk of the Court today advising that all Counsel are available for a Case Management Conference on February 3, 2015.
Update – December 16, 2014
After receiving correspondence from the Clerk of the Court, all Counsel have provided their availability for a Case Management Conference to the Court.
Update – November 24, 2014
We are making efforts to arrange meeting with all Counsel to discuss the furtherance of this class action and agree on appropriate procedures.
Update – November 4, 2014
We have received a filed copy of the Consent Order appointing a guardian to manage the affairs of the Second Defendant, Dr. Rajgopal Menon.
The Order is available for viewing under the Court Documents tab.
Update – October 31, 2014
Wagners have sent correspondence today to the Clerk of the Court in Miramichi, New Brunswick requesting that a Case Management Conference before Justice Ouellette be scheduled.
Update – October 14, 2014
We understand that the Second Defendant, Dr. Rajgopal Menon, has been in ill health recently and this has necessitated the need for an appointment of a guardian to manage his affairs.
Update – September 30, 2014
We have received correspondence and an Order from the New Brunswick Court of Queen’s Bench confirming that the Honourable Justice Jean-Paul Ouellette will continue in his role as Case Management Judge in this class action.
A copy of the Order may be found under the Court Documents tab.
Update – August 28, 2014
We continue to have discussions with Counsel for both Defendants in an effort to mutually agree on appropriate procedures with respect to the future conduct of the now certified class action.
Update – July 28, 2014
We are attempting to schedule a meeting of all parties to discuss the furtherance of the class action.
Update – July 16, 2014
We understand that the Honourable Justice Jean-Paul Ouellette has been appointed to the Judicial District of Moncton.
As the Plaintiffs intend to proceed with this case in the Judicial District of Miramichi, we have requested that a new judge be assigned to case manage this proceeding. We are awaiting the appointment at this time.
Update – February 27, 2014
The New Brunswick Court of Appeal has handed down its decision in the Miramichi Pathology class action.
Members of Wagners and Ches Crosbie Barristers were in attendance in Fredericton this morning for the oral decision and we are pleased to advise that the Court of Appeal has reinstated the certification of the class action.
We were successful on every ground of the appeal that we argued. The Decision and Order may be viewed under the Court Documents tab.
Update – October 25, 2013
The appeal of the certification decision was heard by the New Brunswick Court of Appeal on June 11 to 13, 2013, in Fredericton, New Brunswick. The panel reserved their decision on the appeal.
Once the decision has been released, a copy will be made available for viewing under the Court Documents tab.
Update – April 23, 2013
We wish to remind our potential Class Members that the appeal of the certification decision will be held over the course of 3 days, from June 11 to 13, 2013, in the New Brunswick Court of Appeal in Fredericton.
Update – February 22, 2013
The Plaintiffs/Appellants filed their Further Submissions with the New Brunswick Court of Appeal. The document may be viewed under the Court Documents tab.
Update – January 24, 2013
The hearing of the appeal, which occurred on January 16, 2013, was adjourned to allow for counsel to file further submissions with the New Brunswick Court of Appeal with respect to the appeal of the certification decision.
The Plaintiffs/Appellants must file further submissions and authorities on or before February 8, 2013. The Defendants/Respondents must file their submissions, authorities and book of essential references on or before March 1, 2013.
The Appeal will now be heard over the course of 3 days, from June 11 to 13, 2013.
Update – December 7, 2012
The hearing of the appeal of the certification decision of the Honourable Justice Jean-Paul Ouellette will be held in the New Brunswick Court of Appeal on January 16, 2013 at 10:00 a.m.
Update – July 25, 2012
We have uploaded a number of recent pleadings to the website. The documents may be viewed under the Court Documents tab.
At this time we are awaiting dates from the New Brunswick Court of Appeal with respect to the hearing of the appeal with respect to the certification decision. Once the dates are known, we will update this News page.
Update – March 22, 2012
The Motion for Leave to Appeal will be heard in the New Brunswick Court of Appeal in Fredericton on May 30, 2012 at 1:00 p.m.
Update – March 14, 2012
The Notice of Motion for Leave to Appeal has been sent to the New Brunswick Court of Appeal in Fredericton.
The Notice may be viewed under the Court Documents tab.
Update – March 13, 2012
The Plaintiffs’ Motion for Certification has been dismissed by the Court of Queen’s Bench.
In cooperation with our co-counsel, Ches Crosbie Barristers, we will be filing a motion for leave to appeal the decision. Please see the Press Release from Plaintiffs’ Counsel here.
Update – March 7, 2012
The certification decision has yet to be released. When it is made available, a copy will be uploaded to the Court Documents tab.
Update – June 21, 2011
The certification hearing is now scheduled to take place on September 6 to 8, 2011 in the Judicial District of Miramichi.
Update – May 10, 2011
The certification hearing which was scheduled to be heard on May 11 and 12, 2011 is postponed with new dates to be scheduled shortly.
Update – January 18, 2011
The following is the schedule for the Plaintiffs’ Certification Motion:
- January 28, 2011 – Defendants’ Affidavits Due
- February 15, 2011 – Plaintiffs’ Reply Affidavits Due
- March 31, 2011 – Completion of Cross-Examinations
- April 30, 2011 – Briefs Due
- May 11 and 12, 2011 – Certification Motion
- January 28, 2011 – Defendants’ Affidavits Due
Update – February 12, 2010
The Defendants’ Pre-Certification Motions are scheduled to be heard on February 25 and 26, 2010. The various documents that have been filed may be viewed under the Court Documents tab.
Update – November 20, 2009
The Plaintiffs new Notice of Motion and supporting materials to certify the matter as a class proceeding may be viewed under the Court Documents tab.
Update – October 7, 2009
The Plaintiffs filed a new proposed class proceeding which named two additional Representative Plaintiffs as well as added Dr. Menon as a Defendant to the proceedings. The new Notice of Action may be viewed under the Court Documents tab.
Update – June 8, 2009
Justice Ouellette’s decision of April 17, 2009 ordering that the Defendant will not be able to proceed with any motion to add Dr. Menon until after our motion to certify the proceeding as a class action is significant and is beneficial for this class action.
Justice Ouellette decided that preliminary motions, unless of an extraordinary nature, should not be heard prior to the Plaintiffs’ motion to certify the proceeding as a class action as it impedes the goals of class actions, mainly access to justice and judicial economy and efficiency. The decision allows us to proceed to certification under our own terms and gives the Plaintiffs the opportunity to make their own choices on how best to proceed, and not have the Defendants dictate the course of the lawsuit or impact on the litigation which would result in a delay or denial of justice to the Plaintiffs.
With the above being said, although we objected and were successful in arguing that the Defendant’s motion to add Dr. Menon to the lawsuit was not proper at this time, after consideration of the facts and reviewing our mandate, we have concluded that the addition of Dr. Menon to the class action is the proper course of action for us to follow on behalf of the Plaintiffs and Class Members. During the course of litigation a change in focus on how to proceed in the best interests of those affected will often occur and, in any event, the RHA 7 has now filed their own action against Dr. Menon.
While we did object to the Defendant’s motion to add Dr. Menon, this does not mean we do not believe he should be a party to the proceedings. Rather, by successfully arguing that the Defendant should not be able to add Dr. Menon, the decision of Justice Ouellette gives the Plaintiffs the ability to make their own choices on how best to proceed. As such, we have refiled our proposed class action with the Court and have named both the Regional Health Authority 7 and Dr. Rajgopal Menon as Defendants. The new action was filed on May 19, 2009 and can be viewed under the Court Documents tab. Regardless of the fact that we have expanded our focus, Justice Ouellette’s decision will still allow us to move towards the certification motion expediently and on our own terms.
Update – February 2, 2009
A motion on behalf of the Plaintiff will be heard in the Court of Queen’s Bench of New Brunswick, Miramichi Judicial District on Monday, February 9, 2009 to stay the intended motion of the Defendant to add Dr. Rajgopal Menon as a party to the proposed class action.
Update – December 4, 2008
Wagners, in cooperation with Ches Crosbie Barristers, filed the Notice of Motion and supporting documents to certify the proceeding as a class action. View the documents under the Court Documents tab.
Update – July 22, 2008
Wagners, in cooperation with Ches Crosbie Barristers, filed the Notice of Action and Statement of Claim with respect to the pathology problems at the Miramichi Regional Hospital. View the Notice of Action under the Court Documents tab.
Update – July 21, 2008
On July 21, 2008 Wagners issued a Press Release concerning the impending filing of a proposed class action with respect to the pathology problems at the Miramichi Regional Hospital. View the Press Release here.
Update – June 6, 2008
On June 9, 2008 a Community Meeting will be held at the Royal Canadian Legion in Neguac to provide information concerning the proposed class action to people concerned about the pathology problems at the Miramichi Hospital. View the Community Meeting notice here.
Update – April 16, 2008
On April 15, 2008 we held a Community Meeting at the Rodd Miramichi River to provide information concerning the proposed class action to people concerned about the pathology problems at the Miramichi Hospital. View the Community Meeting notice here.
As this matter progresses, future Community Meetings may be held to give people concerned about the pathology problems an opportunity to obtain information and ask questions of class counsel. Please check this page for information concerning the date for any future Community Meetings.
- March 29, 2016 – Notice of Certification
- March 29, 2016 – Order re: Certification
- June 30, 2015 – 2nd Amended Statement of Claim
- September 30, 2014 – Order re: Case Management Judge
- May 8, 2014 – Decision re: Certification Appeal
- February 7, 2013 – Decision re: Further Submissions Certification Appeal
- June 5, 2012 – Decision for Leave to Appeal re: Certification
- March 8, 2012 – Decision re: Certification
- June 22, 2010 – Decision re: Appeal Decision of April 13/10
- April 13, 2010 – Decision re: Strike, Disclosure & Exams
- October 7, 2009 – Amended Statement of Claim
- May 19, 2009 – Notice of Action & Statement of Claim
- April 17, 2009 – Decision re: Stay
- July 22, 2008 – Notice of Action & Statement of Claim
We are presently accepting enquiries from individuals who have had a biopsy or other pathological procedure performed in the Miramichi Regional Health Authority between 1995 and February 2007.
If you, or a member of your family, have had a biopsy or pathological procedure performed and injury, death or other losses have resulted, you may be eligible for inclusion as a Class Member in our proposed class action lawsuit.
To sign up and determine if you qualify, please fill out this registration form: