Judge doesn’t wait for trial, may have set class-action precedent, in
finding doctor caused spinal infections by Tom Blackwell, December 12, 2016, National Post
Dr. Stephen James gave at least six of his patients serious infections
while performing epidurals like this, a judge has ruled.
In what’s being touted as a first in class-action law, a judge decided
there was no need for a trial to rule that a Toronto pain doctor’s
negligence caused serious, debilitating infections in at least six of
Justice Paul Perell certified a class action lawsuit against Dr. Stephen
James and his clinic, meaning the case can move ahead toward trial or
settlement. Then he went further, issuing a summary judgment – one
without a full hearing – against the physician.
He found that James had failed in his duty of care to the patients by
following sub-standard infection-control procedures around the pain
injections. And it is already clear some were infected by the doctor –
who carried the same bacteria himself, said Perell in a written ruling.
Paul Harte, the lawyer spearheading the suit, said he is unaware of any
other Canadian class action in which a summary judgment has been issued
against defendants, who are usually given at least the chance to argue
their case at trial.
That’s a victory, he said, for medical-malpractice plaintiffs used to
the “scorched-earth” tactics of the Canadian Medical Protective
Association, a largely taxpayer-funded body that gives doctors legal
“This is really an important example of the court offering timely and
efficient justice,” said Harte. “These cases are too often vigorously
defended by the doctors and at significant public expense. This was one
of those cases that cried out for an expedited court proceeding. We had
an extensive public-health investigation, which came to clear and
unambiguous conclusions.” [In 2004, Encana, the AER, Alberta Environment and Alberta Health knew Encana had illegaly frac’d Rosebud’s drinking water aquifers and by 2006 Alberta Environment, AER and Encana knew there was community-wide water well contamination proven caused by Encana.]
James’ lawyer could not immediately be reached for comment.
The case revolves around an outbreak at the Rothbart Centre for Pain
Care in late 2012 that left several people gravely ill.
Over a three-month period, five of Dr. James’ epidural-injection
patients suffered meningitis – a dangerous inflammation of the membranes
around the spinal cord and brain – three developed epidural abscesses
and one a blood infection, an investigation by the Toronto public health
The lead plaintiff in the suit, Anne Levac, told the Toronto Star she
suffered a spinal abscess, leading to permanent nerve damage, and is now
bladder and bowel incontinent.
Other patients have similar, long-term problems, and some even appear to
be suffering from cognitive impairment, said Harte.
Half a dozen were infected with staphylococcus aureus bacteria of the
same genetic makeup as bacteria the doctor himself carried, so it’s
possible to say he caused those infections, the judge said.
Their trial would only consider how much in damages he must pay.
For the other three, his negligence at least had the capacity to have
made them sick, Perell said. The trial would determine whether he did,
in fact, cause their illness.
The class action also includes a handful of other patients of James who
allege they contracted similar infections.
Toronto public health officials audited James’ practices and found a
number of infection-control deficiencies.
Among them were the fact surfaces in James’ procedure room were cleaned
with low-level disinfectant only once a week, the doctor used gloves too
big for his hands, he failed to properly pinch the nose piece on his
face mask, did not disinfect his hands properly, and used non-sterile
gauze – or even baby wipes – to clean wounds after injections.
Last year, James was handed a 10-month suspension by the College of
Physicians and Surgeons of Ontario, which said his lack of appropriate
care for the patients was “simply unacceptable.”
Though the CMPA argues it will quickly wrap up malpractice cases where
it’s clear the physician did wrong, the group’s lawyers “vigorously”
defended the James case in the face of exceptionally compelling
evidence, Harte charged. [Emphasis added]