The case involved allegations of using an unapproved silicone product for lip augmentation
The Ontario Superior Court of Justice has dismissed a medical malpractice class action lawsuit for delay.
The lawsuit against Dr. Sheldon Victor Pollack was initiated in 2003 by representative plaintiff Anna Barbiero on behalf of 369 patients. The plaintiffs accused Dr. Pollack of negligence for using an unapproved silicone product for lip augmentation procedures. The plaintiffs alleged serious physical and emotional injuries due to Dr. Pollack's treatments.
In Barbiero v. Pollack, 2024 ONSC 1548, the court ruled that the 21-year delay in proceeding with the case was "inordinate" and "inexcusable," leading to a "substantial risk" that a fair trial could not be conducted. The court underscored the importance of timely justice and the potential prejudice to defendants in delayed litigation.
The case hinged on Dr. Pollack's use of "Injectable Grade Liquid Silicone" (IGLS), with allegations that he failed to inform patients of risks and did not obtain informed consent. The class action sought to prove negligence, battery, and failure to adhere to the standard of care, claiming that the IGLS used was either an unauthorized product or not approved for use in Canada.
Despite extensive legal proceedings, including attempts to test the silicone product in question, the key sample necessary for testing was eventually lost. The court noted that this significantly impaired Dr. Pollack's ability to defend against the claims. This loss and the extensive delay were deemed by the court to be prejudicial to Dr. Pollack's defence.
The Superior Court highlighted the challenges in managing class action suits, especially those spanning several decades. The court noted the potential for new cases, as the dismissal does not preclude other class members from initiating new actions, given the suspension of limitation periods under class action proceedings.
Ultimately, the court granted the motion to dismiss the class action for delay. The court said a dismissal order is necessary to protect against the presumed and actual prejudice to Dr. Pollack arising from the evidence before the court.
