Ontario Court Releases Merits Decision In Medical Malpractice Class Action

• Published date: 18 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Class Actions
• Law Firm: Siskinds LLP
• Author: Genevieve Cantin

After years of litigation, a medical malpractice class action has been decided on its merits. On September 15, 2021, the Ontario Superior Court released its common issues trial decision in Levac v. James, 2021 ONSC 5971. The class action resulted in the plaintiff achieving complete success at the common issues trial against one of the defendants and no success at all against the others.

Levac is the latest of a growing number of representative actions to be tested on the merits. The decision reaffirms that infectious outbreaks are well suited to certification and are amendable to adjudication on a class-wide basis. But it also wrestles with a novel theory of liability before the Court, one that could have wide-ranging implication: a theory based not on a traditional causation analysis but on an epidemiological analysis premised on the statistically high rates of infections found among a health care practitioner's patients.

Factual background and procedural history

The class action arises out of an infectious disease outbreak at a now-defunct Toronto pain management clinic. In 2012, Toronto Public Health audited the clinic's infection prevention and control practices and determined that there were multiple deficiencies. Toronto Public Health subsequently determined that the clinic doctor at the core of the investigation, Dr. Stephen James, had been colonized with a rare strain of Staph aureus bacteria (CC59) and had transmitted infection to his patients.

Infected patients had varying types of infections and serious complications in different areas of the body. A small group of the infected patients tested positive for the same rare strain of Staph aureus bacteria that had colonized on Dr. James. For the remaining group of infected patients, either no samples were taken that could be tested or the tests were inconclusive.

The plaintiff brought suit in 2014. The class action involves claims by some 20 patients of Dr. James that he, along with the clinic at which he worked and the nursing staff of that clinic, is responsible for the bacterial infections they suffered because of epidural injections he administered to them between the period January 2010 to November 2012. The plaintiff's position is that Dr. James caused the infectious disease outbreak by negligently implementing a substandard infection prevention and control ("IPAC") practice.

The procedural history in Levac is nothing short of eventful. At first instance, the Court certified the class action...