Pubdate: Sun, 11 Sep 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Author: Jacques Gallant
Page: A1


Hospital, former lab director point fingers at each other, deny
allegations in proposed class action lawsuit

The Hospital for Sick Children and the director of its former
Motherisk laboratory are now battling each other in court.

The two sides have issued cross-claims against each other as part of
their statements of defence filed in a proposed class action lawsuit.
The lawsuit was launched by parents who claim they lost their children
because of faulty drug and alcohol hair tests carried out by Motherisk.

Both parties deny the allegations made against them by the proposed
class of plaintiffs. The allegations have not been proven in court.

But should former director Dr. Gideon Koren be found liable by the
court and ordered to pay the plaintiffs damages, he wants Sick Kids
and Motherisk manager Joey Gareri to indemnify him. Sick Kids and
Gareri are asking Koren to do the same, should they be found liable.

Law firm Koskie Minsky, which is representing the plaintiffs, declined
to comment, as did a Sick Kids spokeswoman. Koren's lawyer did not
return a request for comment.

Launched earlier this year, the proposed class action is among several
lawsuits involving Motherisk moving through the courts in Ontario and
Nova Scotia. Dr. Michael Apkon, the hospital's CEO, said in a
statement in January that, in some cases, "we may need to participate
in compensating impacted families."

Koren, who according to the hospital retired in June 2015, has never
spoken publicly about the controversy surrounding Motherisk. His
statement of defence offers a glimpse into his thoughts on the lab
since the Star began an investigation into its practices in 2014.

He rejects the findings of an independent review led by retired Court
of Appeal Justice Susan Lang last year, which harshly criticized hair
testing procedures at Motherisk.

"The hair testing methodologies employed by (Motherisk) were, at all
material times, accurate and reliable for their intended purpose. The
results and interpretations of hair testing results provided by Dr.
Koren were similarly accurate and reliable for their intended
purpose," says Koren's statement of defence, filed in Superior Court
in Toronto.

"Dr. Koren specifically denies the findings of the Independent Review
of the Honourable Susan Lang referred to at paragraph 127 of the
statement of claim and states that these findings cannot be relied
upon and are inadmissible in this proceeding," the statement
continues, referring to Lang's finding that Motherisk hair test
results were inadequate and unreliable.

He is asking the court to dismiss Sick Kids' and Gareri's cross-claim,
with costs. The independent review was sparked by a Star investigation
that found that before 2010, Motherisk did not use what is considered
the "gold standard" hair test. The tests, often requested by
children's aid societies, were used in thousands of child protection
cases across the country.

After having first defended the lab, Sick Kids permanently
discontinued hair testing at Motherisk last year, and Apkon apologized
to families who may have been affected. The provincial government
launched the Motherisk Commission earlier this year in the wake of the
damning independent review. The commission's two-year mandate includes
reviewing Ontario cases from between 1990 and 2015 where Motherisk may
have been involved.

In its statement of defence, the hospital said it did not owe a duty
of care to the proposed representative plaintiff, as it was providing
expert assistance to the Catholic Children's Aid Society by carrying
out the hair test.

"The hospital defendants advised the CCAS that the results of the
plaintiff's hair tests ought to be interpreted in conjunction with
other evidence and ought not to be relied upon as a sole or
predominant indicator of best interests of the plaintiff's
child(ren)," the statement says.

"In summary, at all times the hospital defendants acted responsibly
and in accordance with the appropriate standard of care owed to the
CCAS regarding the plaintiff's hair specimens."
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