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Health Law - HEALTH CARE PROFESSIONALS - Liability (malpractice) - Negligence - Duty of care - Specific duties of care - To take care - Particular professions - Doctors

Thursday, January 19, 2017 @ 7:00 PM  


Motion by Levac for certification of her action against the Rothbart Centre for Pain Care Clinic and several of its staff, and for summary judgment against James. James, an anesthesiologist employed by the clinic, administered epidural injections. An infectious disease outbreak was discovered at the Clinic in November 2012. An investigation by Toronto Public Health ensued, revealing that nine patients of the 272 treated by James during the previous three months tested positive for staphylococcus aureus, six of them from a strain matching the strain that testing of James revealed that he harboured. The same bacteria were found on several surfaces in James’ treatment room. The findings of the investigation included that James used gloves that were too big, failed to take off his wedding ring as required, touched non-sterile surfaces after sanitizing his hands, failed to sanitize his hands adequately and failed to maintain a sterile field for instruments. The investigation also revealed that the environment in the treatment room was generally non-sterile. James denied knowledge of proper sterilization procedures and the fact that he had bacteria in his system. Upon learning that he did, he stopped working until there were no traces of bacteria left in his system. Levac, one of James’ patients during the outbreak, argued that James was responsible for the outbreak and negligent because he implemented a substandard infection prevention and control practice (IPAC). She sought certification of her action and leave to act as representative plaintiff for individuals who received injections between 2010 and 2012 and became infected with bacteria, as well as their family members. Expert witnesses testified that the rate of infection following epidural injections by James was extraordinarily high. One also opined that it was likely that James infected other patients, outside the outbreak period. Experts for the defendants pointed out that James had given thousands of epidural injections between 2004 and 2011 without any report of infection using the same practice for infection prevention and control, suggesting that the infections in 2012 were caused by the particularly virulent strain of bacteria that James unwittingly harboured, not by substandard IPAC practice.

HELD: Motion allowed. Partial summary judgment granted against James for breach of his duty of care to those patients infected with the same strain of bacteria found on James and in his procedure room. Levac’s pleadings disclosed a cause of action in medical negligence. The proposed plaintiff class was identifiable. Common issues were identified with respect to whether the defendants owed a duty of care to the class members to maintain infection control practices, whether any of them breached the duty of care with respect to the design and performance of the practices, and whether punitive damages were warranted. The reports issued by Toronto Public health were admissible evidence in considering whether Levac was entitled to summary judgment against James. The evidence before the court was sufficient to prove a breach of the duty of care by James.