02/27/2014 08:34 EST | Updated 04/29/2014 05:59 EDT

Disgraced N.B. pathologist Raj Menon to face class-action lawsuit

A class action lawsuit against a disgraced pathologist and the Miramichi Regional Health Authority has been allowed to go ahead by the New Brunswick Court of Appeal.

In a split decision Thursday, the province's highest court overruled a lower court decision that struck down the class action lawsuit brought by former patients.

The lawsuit against Dr. Rajgopal Menon and the health authority was filed by three former patients, and about 100 people had signed up for the class action.

Menon was previously found to have made thousands of partial or full misdiagnoses between 1995 and 2007.

In the lower court decision, Justice Jean-Paul Ouellette of the Court of Queen's Bench had ruled the plaintiffs "failed to establish an identifiable class, define workable and manageable common issues, or establish that a class action would be the preferable procedure for proceeding within the requirements of the Class Proceedings Act."

The judge noted that plaintiffs Albert John Gay and Kimberley Ann Doyle had no change in their diagnoses following a review of their pathology slides.

"They have suffered no physical harm and they have suffered no recognizable psychiatric harm as a result of the action of Dr. Menon or the hospital," Ouellette said. "It is questionable as to whether they are appropriate representatives."

Lead plaintiff Jim Wilson, however, does appear to have cause for action against Menon for the alleged misdiagnosis of prostate cancer, Ouellette concluded in his 41-page decision.

In a judgment announced Thursday, the higher court ruled the earlier dismissal amounted to reversible error and said the class action lawsuit can proceed.

"The Court's order does not determine the merits of the action, but it simply allows it to go forward as a class proceeding," stated the decision by Chief Justice Ernest Drapeau and Justice Alexandre Deschênes.

No automatic Supreme Court hearing

A dissenting opinion was given by Justice Joseph Robertson.

While split decisions of an appeal court are automatically heard by the Supreme Court of Canada in appeals of criminal cases, there is no such provision for split decisions in civil litigation to be automatically heard by the province's highest court. Either Menon or the health authority can seek leave to appeal the decision.

Menon was suspended from his position at the Miramichi Regional Hospital in February 2007, following complaints about incomplete diagnoses and delayed lab results.

Former health minister Michael Murphy called a formal public inquiry into the pathology work at the Miramichi hospital after an independent audit of 227 cases of breast and prostate cancer biopsies from 2004-05 found 18 per cent had incomplete results and three per cent had been misdiagnosed.

The head of the inquiry, Justice Paul Creaghan, found that Menon should have been fired two years before he was suspended.

Creaghan's final report offered 52 recommendations to improve pathology services in the province.