Ontario Court of Appeal affirms doctor's negligence in infectious disease outbreak case

The Ontario Court of Appeal has dismissed a doctor's appeal in a class action lawsuit involving an infectious disease outbreak.

In Levac v. James, 2023 ONCA 73, Dr. Stephen James is an anesthesiologist at the Rothbart Centre for Pain Care. James administered epidural injections into the area around the spine as a pain relief treatment. After receiving an injection, some of his patients developed meningitis or other serious infections. The Toronto Public Health officials discovered the outbreak at the Rothbart Centre in November 2012.

Health officials conducted an extensive investigation and concluded that the outbreak was due to the inadequate Infection Prevention and Control (IPAC) used for the injections intended to prevent or reduce the risk of transmission of microorganisms. The officials found that the rate of infection associated with James' epidural injection practice was many times greater than the reported risk of infection for such procedures generally. Furthermore, James' clinic was colonized with a rare strain of bacteria that matched the bacteria infecting six patients.

Anne Levac is one of James' patients who suffered an infection. She launched a class action lawsuit, alleging that James and the now-defunct Rothbart Centre caused the infectious disease outbreak by implementing substandard IPAC, failing to report or investigate the infections, and failing to remediate IPAC after learning of the initial infections.

Common issues findings

The trial judge found against James on all the common issues –negligence, fiduciary duty, limitation period, and entitlement to punitive damages. James appealed all the liability findings against him. He argued that although the common issues were certified, based on the trial evidence, they could not be answered class-wide across the entire class period, given the unique interactions between James and each of his patients.

 Class-wide findings of negligence

The Ontario Court of Appeal ruled that the trial judge did not commit an error by making class-wide findings of negligence. James argued that the judge failed to account for each patient's unique and variable experience, which made common findings unworkable. He asserted that the answers to the common issues could only be applied to some class members.

Levac contended that the class action alleged systemic negligence, which is not specific to any one victim but to a class of victims. The court noted that IPAC is akin to a systemic policy or practice intended to be applied consistently. James' failure to adhere to the required IPAC standards in all cases exposed his patients to a common risk of harm.

Causal link

James argued that the trial judge made an error in finding that his breaches of the standard of care caused infections in his patients. He asserted that only patient-specific evidence could lead to any conclusion on specific causation. James challenged that judge's reliance on statistical evidence of causation to make class-wide negligence findings.

The court noted that "while correlation is not scientific causation, scientific certainty is not required for legal proof." The trial judge benefited from extensive expert evidence on the relationship between proper IPAC and infection rates. He found that the risk of serious infection among James' patients was at least 49 times higher than expected and concluded that the statistical evidence was "so overwhelming that it cannot be ignored."

 The court found powerful circumstantial evidence on which to conclude that a statistical association represented a causal link on a balance of probabilities. Likewise, the court noted that James had not advanced a viable, non-negligent explanation for the outbreak. The court further explained that each class member must still prove their case on a balance of probabilities at individual trials, but they could rely on the trial judge's common findings.

The court concluded that the trial judge made no error in relying on statistical evidence to draw a class-wide rebuttable inference that James' substandard IPAC caused the infections. In addition, the court found that the trial judge's reasons were sufficient and did not breach procedural fairness. The court also found ample basis to find that James' failure to report, investigate, and remediate rose to the level of a breach of fiduciary duty, and such violation caused the class members' injuries. As a result, the court decided to dismiss James' appeal.