Court Proposes To Certify Class Action Against Endoscopy Clinic: The Alleged Facts: The plaintiff is a former patient of an endoscopy clinic operated by the defendants in Ottawa between 2002 and 2011. Following an inspection by the College of Physicians and Surgeons of Ontario (CPSO) it was determined that infection control and prevention practices had not routinely been followed for endoscopic and biopsy equipment. The clinic was closed, and the matter referred to the Medical Officer of Health. Consequently, in October of 2011, Ottawa Public Health (OPH) began a notification program, advising former patients of possible risk of infection and advising the recipients of the notice to be tested for HIV, hepatitis B and hepatitis C.
The plaintiff was among 6,800 former patients who were affected by that notice. Apparently, 95 percent of the former patients received the letter and 75 percent of those patients chose to undergo a blood test. The plaintiff was one of them. Some individuals who were tested did test positive for one of the blood borne diseases, but after DNA analysis of the infections, OPH was unable to establish or confirm any transmission of infection within the clinic where the lapse occurred. Infections in the population of people who were tested may have been coincidental.
The plaintiff did not test positive, and she does not assert that she was infected. Rather, she seeks compensation for exposure to enhanced risk of infection and for the shock, trauma and inconvenience inherent in responding to the public health notice. It is possible there may be members of the proposed class who did become infected and who believe the infection was acquired in the clinic, but that is not the focus of the litigation. The plaintiff alleges that all members of the proposed class suffered damage and are entitled to compensation whether or not the risk of infection materialized.
The plaintiff sought to bring the proceeding on behalf of herself and all patients that were subjected to the risk of infection due to the failure of the clinic to properly sterilize instruments and follow protocols.
The Superior Court of Justice – Ontario, stated in its Decision and Reasons dated July 12, 2022: “This is a case in which there was a mass wrong affecting thousands of individuals. Given the pleading and the focus on damages for exposure to increased risk, anxiety and the need to be tested as opposed to individual personal injury, damages for individual class members are likely to be modest. 6800 individuals with modest individual claims is almost an exemplar of the kind of case the Act was designed to capture. As described by the Supreme Court of Canada in Hollick, supra, the objectives of the Act are as follows. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.”
If you or a family member acquired a serious infection following an endoscopic procedure, you should promptly consult with a local medical malpractice lawyer in your U.S. state who may investigate your possible endoscopy claim for you and represent you in a claim for compensation due to the injuries you suffered following an endoscopy.
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