Doctor faces class-action suit after suspension
Dr. Stephen James pleaded no contest before a CPSO disciplinary committee to charges of dishonourable and unprofessional conduct, and incompetence, but findings can’t be admitted in civil court
Dr. Stephen James was found by a disciplinary committee of the College of Physicians and Surgeons of Ontario (CPSO) to have treated a number of patients in unsterile conditions, some of whom later became seriously ill.
“Your care — or, better said, lack of proper care — and procedures you performed on these patients is, and was, simply unacceptable,” chair Dr. Marc Gabel told James last December after the committee handed down a10-month suspension.
Some patients have now taken James, the clinic where he worked and a number of other individuals to court in a recently certified class-action lawsuit. But here’s the catch: Under Ontario law, disciplinary findings against a health professional cannot be admitted in civil court.
“I believe (the law) is there, in theory, so that doctors’ care can be questioned in order to improve quality without fear of being sued. But that’s not how it’s being used,” said plaintiffs’ lawyer Paul Harte, speaking generally and not on the specifics of the James case.
“It’s used as a shield against the doctor, and requires the plaintiff to, in essence, reinvent the wheel. It also gives the doctor the opportunity to say one thing to the college and another thing in court ... It just elongates a process that is ultimately all being done at the public’s expense.”
James, then an anesthesiologist at the Rothbart Centre for Pain Care in North York, had pleaded no contest before the disciplinary committee to charges of incompetence and to disgraceful, dishonourable and unprofessional conduct relating to his treatment of 13 patients.
The plea means he did not contest the facts, but was also not admitting guilt. The hearing heard how the patients became infected with potentially deadly Staphylococcus aureus bacteria in 2012.
James was colonized with the bacterium, meaning it was present on his skin but never made him ill. About 25 per cent of the population is colonized with staph A. It can become life-threatening if it enters the body through a wound or injection.
Some were given epidural steroid injections for pain and later developed meningitis and epidural abscesses. Many said their mobility is impaired, that they use adult diapers and suffer from isolation and depression.
The discipline committee described James’ antiseptic technique at the time as “extremely poor” and said he had displayed a lack of “selfscrutiny” in his practice.
“The committee found that there were very serious breaches occurring over many months, and the consequences have been devastating,” says the disciplinary decision.
“The breaches affected people’s lives permanently, physically and emotionally, with significant effects for patients and their families. Dr. James’ breaches also undermined his patients’ trust in the medical profession.”
James, whose suspension was lifted on Oct. 15, is now working at Toronto Interventional Pain Specialists, a pain clinic in Richmond Hill, according to the CPSO’s public register.
This week, lawyers for Anne Levac, the representative plaintiff in the case, were in court to certify the class-action lawsuit, which was granted.
They were also seeking summary judgment specifically against James — meaning they believe they have enough evidence against James to forego a trial. None of the allegations have been proven in court.
Levac, whose story was profiled in the Star in 2014, developed an epidural abscess following a visit to the pain clinic and now lives with disabilities due to permanent nerve damage.
James’ lawyers argued in court documents and before Superior Court Justice Paul Perell on Thursday that summary judgment should not be granted, saying there are “genuine issues” requiring a full trial.
“The plaintiff seeks summary judgment on the allegations that Dr. James breached the duty he owed to her and the putative class members by failing to utilize appropriate IPAC (infection prevention and control practice) measures while performing epidural steroid injections on them,” reads part of the factum arguing against summary judgment.
“However, the plaintiff has not adduced any proper evidence to establish Dr. James breached that duty. She has adduced no evidence capable of proving that Dr. James breached the standard of care in relation to her or any of the putative class members.”
James is also attempting to have findings from a Toronto Public Health (TPH) investigation in November 2012 — which began after the agency learned some patients at the Rothbart Centre had come down with meningitis — deemed inadmissible in the court proceeding.
An audit conducted by TPH and Public Health Ontario at the time “identified a number of IPAC deficiencies associated with the clinic (Rothbart Centre) that were immediately brought to the attention of the clinic owner, the clinic nursing manager and the College of Physicians and Surgeons of Ontario,” says a final summary of the TPH investigation.
James’ lawyers say that TPH observed him perform a mock epidural injection, but not on an actual patient. They argue that the summary is inadmissible hearsay, saying that the plaintiffs have not shown any evidence to back up its facts and conclusions, or delivered any affidavit from individuals involved in the investigation.
They also argue that the summary does not specifically address Levac’s case or any other class-action plaintiffs. The defence claims that the plaintiffs’ experts’ opinions about James’s practices “hinge” on the final summary. The plaintiffs deny this, saying their experts reviewed far more than just the summary.
James has tendered evidence refuting any criticism “inferred from the final summary,” his lawyers argue in court documents.
“He has also adduced affidavits from two experts that explicitly endorse his IPAC practice as meeting the standard of care,” says the factum.
Justice Perell is now considering his ruling on summary judgment. With files from Theresa Boyle