No trial, but doctor is guilty, judge rules

Class-action case ‘expedited’

TORONTO • In what’s being touted as a first in classaction 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 his patients.

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 substandard infectioncontrol 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 representation.

“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.”

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 department concluded.

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 lowlevel 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 nonsterile 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.

CASES ARE TOO OFTEN VIGOROUSLY DEFENDED BY THE DOCTORS.