The recent decision of Justice Morgan in Levac v. James, 2021 ONSC 5971 confirms that common elements of specific causation can be resolved in a class proceeding, even while the ultimate proof of specific causation remains an individual issue. The decision is also noteworthy for the proposition that causal inferences can be established on the basis of circumstantial evidence supported by statistical and epidemiologic inference alone.
This class action arose following an infectious disease outbreak which occurred over a 3-year period at the Rothbart Pain Clinic in Toronto, where the defendant pain specialist Stephen James practised. Dr. James administered epidural pain injections into the area around the spine. After receiving an epidural injection, some class members subsequently developed meningitis, an abscess in or around the spine or other serious infection. The outbreak was discovered by public health officials in November 2012. An extensive investigation concluded that the outbreak was caused by inadequate infection prevention and control (IPAC) practises used for the epidural injections. Several deficiencies were noted. However, no specific deficiency could be scientifically proven to be the cause of the spread of infection. Dr. James insisted that he always used appropriate IPAC. However, the rate of infection association with Dr. James’ epidural injection practice was many times greater than the reported risk of infection, which was inconsistent with the use of appropriate IPAC.
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