Case Summaries

Justice Perell Grants Partial Summary Judgment in Class Action

December 13, 2016 - Anne Tardif

The class action arises from a 2012 infectious disease outbreak at the Rothbart Centre for Pain Care Ltd, where Dr. Stephen James, an anesthesiologist, administered epidural injections that were infected by bacteria. Ms. Levac, the representative plaintiff, alleged that Dr. James, who was personally colonized with the bacteria, was responsible for the outbreak and was negligent because he implemented a substandard infection prevention and control practice.  Certification was unopposed by all the Defendants, with the exception of a dispute between Ms. Levac and Dr. James about the wording of the common issues.  Ms. Levac also sought a partial summary judgment against Dr. James for breach of his duty of care.

Justice Perell certified the action as a class proceeding and granted a partial summary judgment against Dr. James, finding that he breached his duty of care to class members.  This finding of negligence entailed: (a) a finding of causation for those class members who were infected with the same bacteria as Dr. James; and (b) a finding of general causation for the balance of the class members. To perfect their claims, the first group of class members will have to quantify their damages and the second group of class members will have to prove specific causation and the quantification of their damages.

The case is interesting for two other reasons.  First, the outbreak was investigated by Toronto Public Health (“TPH”).  Justice Perell held that the TPH Reports were admissible for the truth of their contents pursuant to the public documents exception to the rule against hearsay.  The TPH investigators, he held, were charged with a public duty to investigate the outbreak at the Clinic and the investigators’ records were inherently reliable or trustworthy.  Interestingly, Justice Perell concluded that an adjudicative function is not a prerequisite for a document being a public document.

In any event, Justice Perell concluded that there would otherwise be no issue with the representative plaintiff’s experts’ reliance on the facts set out in the TPH reports.  This is because, according to Justice Perell, the facts upon which these experts founded their opinion were uncontestable or uncontested or the facts were admitted by Dr. James who did not seek to cross-examine the experts.  Indeed, Justice Perell noted that Dr. James had the opportunity to cross-examine the representative plaintiff’s experts about the foundational facts, but he did not do so.  As a result, he accepted the truth of the foundational facts.  This is interesting, as it has often been understood that the parties must prove the foundation on which their experts rely, and that a failure to prove foundation does not render the report inadmissible but simply goes to weight (see, for example, Marchand v. The Public General Hospital Society of Chatham, 2000 CanLII 16946 (ONCA); leave to appeal refused, 2001 CarswellOnt 3412).  Why then would a failure to cross-examine an expert on foundation constitute an admission of that foundation?

According to Justice Perell at para. 125, the foundational facts include the following:

(a) epidural injections are an invasive procedure and that risk of infection is a serious concern;

(b) IPAC Practices are designed to reduce if not eliminate the risk of infection from viral, bacterial, or fungal agents;

(c) Dr. James was trained in IPAC Practices and intended to comply with the standard of care for IPAC Practice;

(d) Dr. James invariably and sequentially performed the IPAC Practice described above;

(e) between August 20 and November 25, 2012, he performed 272 epidural injections;

(f) during this period, nine of the 272 patients developed very serious infections requiring hospitalization;

(g) the rate of infection was extraordinarily high for epidural injections;

(h) a high rate of infection can  be explained by a failure to utilize IPAC Practice in accordance with the recognized standard of care;

(i) six of his infected patients were infected with a strain of staphlococcus aureus that was found on Dr. James himself and that was found on the countertop, telephone and physician’s arm rest in the procedure room that was exclusively used by Dr. James;

(j) Dr. James did not remove his wedding ring before administering epidural injections;

(k) from time to time, Dr. James used gloves that were too big for his hands;

(l) Dr. James did not dispute that he may have applied his mask without performing hand hygiene; and

(m) Dr. James did not dispute that he did not have the nose piece/bridge on his mask pinched.

This leads to the second reason the case is particularly interesting.  Justice Perell concluded that it was appropriate to draw an inference of negligence based on these foundational facts, which constitute circumstantial evidence.  These facts, he reasoned, called on Dr. James to explain how his patients became infected without a breach of duty of care on his part. In his view, finding the existence of a rebuttable presumption of negligence on the foundational facts as proved by the representative plaintiff was not tantamount to resurrecting the doctrine of res ipsa loquitur.

Prior to it being abolished, courts could invoke the doctrine of res ipsa loquitur in circumstances in which there was no direct evidence of negligence to create an inference of negligence where an accident occurred that would not normally happen unless someone was negligent and where the defendant was in control of the conditions giving rise to the accident.  Justice Perell clarifies that triers of fact may draw factual conclusions of negligence based on circumstantial evidence.  What they may not do is infer negligence by assuming circumstantial evidence.

You can read the entire decision here