Crisis Up-Date: Creaghan (New Brunswick) Inquiry Into Pathologist Rajgopal Menon;

"THE PERSONS WHO ARE SERVED BY THE MIRAMICHI REGIONAL HEALTH AUTHORITY WERE UNDERSTANDABLY UPSET WHEN THEY LEARNED AND HEARD ABOUT THE SITUATION CONCERNING PATHOLOGY SERVICES AT THEIR HOSPITAL. I WANT TO GIVE THEM EVERY OPPORTUNITY TO BE HEARD," HE SAID, ADDING THEY MAY GIVE EVIDENCE WITHOUT LEGAL REPRESENTATION OR MAY HAVE COUNSEL AT THEIR SIDE, SHOULD THEY SO WISH."

JUSTICE PAUL CREAGHAN:

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The Miramichi Mirror reported earlier this week that the Creaghan Inquiry into 227 cases handled by New Brunswick pathologist Dr. Rajgopal Menon is set to begin hearing evidence tomorrow (Monday May, 5, 2008, in a story headed, "Pathology Scandal: Justice Urges Objectivity;"

The New Brunswick Inquiry is one of three probes involving flawed pathology that are now underway in Canada - including the Goudge Inquiry in Ontario's review of the botched work of Dr. Charles Smith - which have raised fears that the nation's health care system is in a state of crisis.

"Step back," the story begins.

"That was the advice of pathology scandal Commission of Inquiry Justice Paul Creaghan to a gathering of legal, provincial and federal representatives at a preliminary hearing in Moncton on Monday," (April 28) it continues.

""Step back," Creaghan said, "put aside personal agendas and consider the issues ..."

Creaghan delivered the advice while discussing the investigative process that will take place during the three phases of the inquiry scheduled for May, June and September of this year.

"This is an investigative process ... not a discovery process, not a trial and not an adversarial process," said Creaghan, adding what the intent of the hearings will be is to get to the bottom of the situation.

The inquiry will focus on cases handled by former pathologist Dr. Rajgopal Menon in 2004-2005, specifically, a review of 227 of Menon's cases by Dr. Rosemary Henderson initiated by management of the Miramichi Hospital.

Henderson found that 18 per cent of the 227 cases were incomplete and three per cent were misdiagnosed.

Creaghan said the inquiry will focus on quality assurance issues and quality control of services provided.

"Witnesses will testify with the constitutional protection that their testimony will not be used in any criminal or civil proceeding. Witnesses may have counsel with them when testifying, should they need assistance as to how to appropriately answer a question," he said.

During the meeting, Creaghan introduced other members of the commission, including principal counsel Marc-Antoine Chiasson, counsel Remy M. Boudreau and manager Pauline St.Laurent-Pinto, as well as lawyers representing the provincial department of health, the Miramichi Regional Health Authority, the College of Physicians and Surgeons, the Canadian Medical Professional Association, Menon, the Canadian Cancer Society and a class action lawsuit.

Creaghan said only Chiasson will be permitted to question witnesses without his leave — and he will grant leave to others only under special circumstances. He cited as an example of special circumstances testimony given by someone from out of province who may not be able to return to testify at a later time.

Phase one of the inquiry is set to begin tomorrow and run through to Tuesday, May 13, excluding the weekend. Expected to give evidence in phase one are former provincial deputy minister of health Nora Kelly, department of health physician resource advisor Lynn St. Pierre Ellis, hospital services executive director Lise M. Daigle, deputy minister of health Don Ferguson, MRHA chief of pathology Dr. Dariusz Strselczak, and former MRHA chief operating officers John Tucker and James Wolstenholm.

"This is an investigative and not an adjudicated process," said Creaghan before repeating his advice that everyone step back and remember "... this is a review intent to improve health issues in Miramichi, and indeed the the province."

He added the preliminary hearing was intended to help people feel comfortable with the process before the public hearings proceed and to introduce the parties given standing before the commission.

"I have pledged the process would be open ... [But] this is not a press conference and I do not intend to conduct this in the media," said Creaghan. "It is an opportunity to identify how we intend to proceed."

Phase two set for Miramichi

Phase two of the inquiry is set to be held in Miramichi in June. Creaghan said this phase will provide patients affected by the review of cases every opportunity to be heard.

"The persons who are served by the Miramichi Regional Health Authority were understandably upset when they learned and heard about the situation concerning pathology services at their hospital. I want to give them every opportunity to be heard," he said, adding they may give evidence without legal representation or may have counsel at their side, should they so wish.

"In that case, Chiasson may have some further questions to complete the witnesses' testimony. If the person is without a lawyer, he will lead the evidence."

Creaghan explained witnesses will be advised their testimony cannot be used in any criminal or civil proceeding that may ensue.

"George McAllister has been granted standing to represent any person who may wish to testify as an aggrieved party. Should a person who appears at this phase of the hearing wish to have McAllister lead his or her testimony, he may do so," said Creaghan. "Again, aside from follow-up questioning by Chiasson, there will be no cross-examination of these witnesses without leave."

Chiasson said to date there are 20-plus names scheduled to appear in phase two of the hearings in Miramichi. He said he anticipates these numbers will grow significantly.

Summer hiatus

The inquiry will be adjourned during July and August to afford the members of the commission an opportunity to review the information provided throughout phase one and two of the hearings.

The final phase is scheduled to resume Sept. 8 and will provide an opportunity for all parties with standing to present evidence they deem necessary and relevant under the restrictions imposed by Creaghan.

"To conclude this final phase of the public hearings, the commission intends to recall Henderson and will also call Dr. Heathcote, head of pathology at the Queen Elizabeth Hospital in Halifax. These witness will be available for questioning by all parties with standing," Creaghan said.

Lawyers with standing before the commission who wish to call witnesses in phase three must provide their names, addresses, telephone numbers and any other relevant information prior to August 4, 2008.

McAllister said a request for funding to assist individuals with the financial support they may need to proceed is currently before Premier Shawn Graham.

"I understand they are going to make a decision this week," said McAllister, adding he could not assess the amount of funding involved at this time because it will fluctuate with the length of the hearings and the number of individuals participating in the class-action suit.

"We haven't costed it out, but generally speaking, most of the parties here are going to have two lawyers; they are going to call experts and all of the rest of it. It is a very expensive commission and you cannot affect people here effectively without funding," he said."

Harold Levy...hlevy15@gmail.com;