The Ontario Court of Appeal has ordered a new hearing in a case against a Toronto pain management clinic, finding that the motion judge deprived the defendant doctor of procedural fairness.

What Happened?

A Toronto pain management clinic experienced a bacterial infection outbreak and several patients were affected. The patient in question (one of eight who were affected) became severely ill after receiving an epidural injection for pain management by an anaesthesiologist at the clinic. She sued the clinic, the clinic’s nurses, the clinic’s medical director, and the anaesthesiologist, claiming that the doctor had caused the bacterial outbreak by negligently implementing substandard infection control methods. She brought a motion seeking certification of a class action and a motion for partial summary judgment against the anaesthesiologist.

Infection Prevention and Control Practices (IPAC)

Hospitals, clinics, and other healthcare providers develop IPAC practices to reduce the risk of infection. It is the professional responsibility of every physician to ensure that their IPAC is appropriate for any procedure that they undertake. In this case, the anaesthesiologist in question had a 26-step IPAC for administering epidural injections.

Despite this procedure being in place, Toronto Public Health (TPH) identified that eight patients had been infected with staphylococcus aureus (a pathogen that can result in life-threatening disease). Six of the eight were infected with the same stain of the pathogen, which the anaesthesiologist also tested positive for.

TPH investigated and prepared a summary of its investigation which concluded that there were multiple deficiencies in the clinic’s IPAC practice. Key findings included:

  • The anaesthesiologist’s hand hygiene was not consistently or properly performed;
  • His alcohol-based hand rub routine lasted less than five seconds;
  • He touched surfaces after hand sanitizing but not before wearing sterile gloves;
  • He used gloves that were too large for his hands;
  • He did not remove his wedding ring before procedures;
  • He applied his mask before performing hand hygiene;
  • He did not pinch the nose piece on his mask;
  • He did not wait for skin preparation to dry before inserting the needle into the epidural space; and
  • The sterile field used in the procedures was not appropriately covered or kept sterile.

The report concluded that as a result of the poor IPAC, the pathogen was transmitted from the anaesthesiologist to his patients.

Original Decision

The motion judge certified the class proceeding against all defendants and granted summary judgment motion against the anaesthesiologist (i.e. a judgment entered by a court against a party “summarily”, without a full trial), finding that he had breached his duty of care to member of the class (i.e. the infected patients), and that causation had been established.

The motion judge found that circumstantial evidence (i.e. evidence that relies on inference) allowed him to conclude, on a balance of probabilities, that the anaesthesiologist had breached his duty of care with respect to his IPAC practice. Summary judgment was appropriate since the patients had developed infections and neither party had any direct evidence about the acts or omissions that could explain why this had happened- the patient had not been able to see the injections, and the anaesthesiologist had relied on evidence about what his standard practice was around injections. The evidence provided by the patient was sufficient to establish breach of the anaesthesiologist’s duty of care, and the issue did not need to be resolved at trial.

The Court of Appeal

The anaesthesiologist appealed, arguing that:

  • The motion judge compromised procedural fairness because how he framed the common issue in his oral ruling was different than how he had framed it immediately prior to hearing the motion;
  • The motion judge erred in finding a breach of the anaesthesiologist’s duty of care.

The appeal was allowed on the basis of the discrepancy in the common issue.

The Common Issue

At the motion hearing, the judge stated that the common issue around the breach of the standard of care should be:

  • Whether the defendants breached the standard of care required for infection prevention and control practices? and
  • In what ways, if any, did the [anaesthesiologist’s] routine invariable IPAC practices breach the standard of care for infection control practices?

Both parties went on to make their arguments around this issue.

However, when the motion judge provided his reasons for this ultimate decision, he replaced the above formulation with a differently worded one:

  • Did any defendant breach his, her, or its duty of care with respect to the design and/or performance of the Defendants’ invariable IPAC Practice?

The anaesthesiologist objected to the reformulated scope of the certified common issue. He also argued that the procedure followed by the motion judge (i.e. certifying a question devised by the judge himself, without the benefit of imput from the lawyers, and after the conclusion of the hearing of the summary judgment motion that proceeded under a different certified common issue) – was procedurally unfair. The anaesthesiologist argued that he would have argued against the certification of the class action if the common issue was presented differently and would also have amended his arguments.

The Court of Appeal noted that the motion judge clearly understood that the new wording of the common issue captured nuances of the duty of care that the first three formulations did not. However, this was something that the parties should have been able to address through submissions.

In addition, the Court of Appeal noted three factors that supported the anaesthesiologist’s argument that he had been denied procedural fairness:

  • The conduct of the proceedings: the anaesthesiologist reasonably expected that the motion judge would adhere to the same formulation in his reasons for decision;
  • The importance of the common issue to the resolution of the action as a whole; and
  • The lack of any steps by the motion judge to address potential prejudice to the anaesthesiologist.

The Court of Appeal concluded that the anaesthesiologist was deprived of procedural fairness in the proceedings and he is entitled to a new hearing on certification and on summary judgment.

At Wise Health Law we have significant experience and expertise assisting physicians and other health professionals in the civil and regulatory contexts, including in appeals and judicial reviews. We have significant trial and appellate experience and are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. Contact us online, or at 416-915-4234 for a consultation.


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