Judge Jean-Paul Ouellette of the Court of Queen's Bench dismissed the class-action suit last week, concluding that the plaintiffs failed to establish an identifiable class.
Dr. Rajgopal Menon worked as a pathologist at the Miramichi Regional Hospital between 1995 and 2007 until an audit of his work found 18 per cent of 227 breast and prostate cancer reports were incomplete and three per cent were incorrect.
A later independent review of 23,000 tests done by Menon found a complete or partial change in the results of about a quarter of the cases.
Lawyer Ches Crosbie says his clients have the right to make a claim for mental distress and the case should be argued in court.
However, Ouellette says in his ruling that two of Crosbie's three clients did not have a change of diagnosis following a review of their pathology slides.
He says they suffered no physical harm and no recognizable psychiatric harm.
Ouellette says the third patient might have a case because of an alleged misdiagnosis of prostate cancer.
Crosbie says he filed notice with the New Brunswick Court of Appeal on Wednesday, and hopes the case could be heard this fall.
Menon has described a public inquiry into his work as "unjustified and unfair" and portrayed himself as someone who was being singled out by the hospital administration. He has also maintained that his work was not as flawed as the public inquiry heard.