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 amenable 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, and awarded partial summary judgment against Dr. James. Justice Perell found that the defendant doctor breached his duty of care to members of the class; that specific causation had been established for those class members infected with the same strain of bacteria found on Dr. James; and general causation for the remainder of the class.
After a trip to the Court of Appeal, the decision was reversed and sent back to the Superior Court for reconsideration by a different judge. Justice Morgan subsequently certified the action on consent of the parties, and the common issues trial was scheduled to proceed in January 2019. However, the parties’ need for further discoveries, which is not uncommon in a class proceeding, meant the common issues trial did not proceed as planned.
After completing the second set of discoveries, the representative plaintiff moved to amend her pleading to add causation-related common issues and two subclasses, including a subclass to reflect class members whose infections could be matched to the strain of bacteria colonized on Dr. James. The most striking or controversial proposed amendment was the inclusion of a causation question regarding whether an inference should be drawn based on statistical correlation that, in the absence of evidence to the contrary, Dr. James’ negligence caused or contributed to class members’ infections.
Dr. James did not object to the plaintiff’s amendments. Instead, he moved to de-certify the class action, on the basis that discovery evidence proved insufficient commonality amongst class members.
In the end, the plaintiff was entirely successful on her motion. Dr. James was not.
The lengthy common issues trial
Unlike many class actions, this one was not settled before trial. Instead, the case advanced before Justice Morgan to be decided on its merits. At issue was whether any of the infections were caused by Dr. James’ negligence or breach of fiduciary duty, and whether the other defendants—specifically, the nursing staff that assisted Dr. James from time to time in performing epidural procedures—were contributing causal agents.
Like most medical malpractice trial decisions, the Levac common issues trial decision goes into great detail about the testimony of the plaintiff’s witnesses as well as the Defendants’, including expert evidence. Based on the evidence before him, the trial judge concluded, with little hesitation, that Dr. James fell below the standard of care: he made “no attempt to report, investigate, or remediate or to change any of his practices or procedures in response to learning of the series of patient infections.” As for the nurse defendants, the trial judge found that the common issues trial revealed no legal claim.
For the subclass whose infections were found to match the bacterial strain colonized on Dr. James, the Court concluded that Dr. James’ breaches in the standard of care were the cause of the clinic infections they suffered. Justice Morgan reasoned that there was “no other viable explanation…for the genetic match between the CC59 strain of Staph aureus infecting these patients and the CC59 strain of Staph aureus colonizing Dr. James.”
As it relates to the remaining class members (i.e., the infected patients for whom there was no evidence that they had been infected by the CC59 strain of Staph aureus bacteria), Justice Morgan was left to grapple with whether the evidence before the Court permitted him to infer that Dr. James’ breaches of the standard of care in relation to his IPAC practices were the likely cause of the infections suffered by class members.
The plaintiff’s position on this point was that there was in fact a common factual base to draw an inference. Relying on epidemiological evidence, the plaintiff argued that by performing an injection with substandard IPAC practices, Dr. James exposed each class member to a level of risk that was statistically much higher than for patients undergoing the same procedure. In fact, the uncontroverted evidence before the Court was that patients of Dr. James had a nearly 69 times greater risk of developing a serious infection than pain clinic patients not exposed to his substandard IPAC practices.
Justice Morgan ultimately concluded that he could not ignore the “overwhelming” evidence against Dr. James. Thus, for those class members for whom there was no evidence that they had been infected by the CC59 strain of Staph aureus bacteria, Justice Morgan determined with ease that an inference could and should be drawn:
While each Class member will have to demonstrate their right to a claim by showing that they partook of this common risk and suffered consequences, the inference that their injury was specifically caused by Dr. James’ actions is statistically proven.
The Court likewise concluded that the defendant doctor’s breaches of fiduciary duty were the likely cause of clinical infections suffered by the class members, and that punitive damages were warranted.
The common issues trial decision in Levac reinforces that while evidentiary and proof requirements of the common issues are not lessened merely because the matter is a class action, epidemiological tools can be used to infer causation.
It remains to be seen whether the trial decision will be appealed.
 Levac v. James, 2016 ONSC 7727
 Levac v. James, 2017 ONSC 842
 Levac v. James, 2019 ONSC 5092