Class actions against hospitals: Reducing the risk

Osler legal update would appear poorly suited to conventional medical malpractice litigation as individual issues invariably dominate.  Nevertheless it would be a mistake to believe that hospitals are immune from these proceedings.  Infection claims and claims challenging physician competence are being put forward as having sufficient common issues to permit the bringing of a class action.  In this article we review these types of claims and offer some suggestions for risk mitigation.

What is a class action?

A class action is a legal proceeding enabling a single person to bring a lawsuit on behalf of multiple unrelated individuals who suffered a loss as a result of the same or similar events.

What is certification?

Certification is the process where the Court considers if it is appropriate for a lawsuit to be a class action.

Infection outbreaks

Since the emergence of SARS in 2003, there has been considerable focus on infections acrossCanada.  Understandably, the hospital setting is a high risk environment for transmission, as infectious individuals seek treatment and require interventions which risk spreading disease.

While our knowledge of effective practices to reduce the possibility of transmission has grown, unfortunately hospital budgets have not.  Many Canadian hospitals have an aged infrastructure which does not permit staff to implement best practices such as single room patient isolation and frequent hand washing at a dedicated sink.  Our hospitals are often filled to or beyond capacity, taxing existing resources.  Our population is living longer but with more chronic conditions requiring health care.  And the emergence of antibiotic resistant organisms poses significant challenges given our reliance on these medications as effective therapy for a wide range of conditions.

All of these factors, and more, can combine to bring about an infectious disease outbreak which may take months to control even with adherence to best practices.

Infection class actions

To succeed in a claim for negligence, the plaintiff must show that the defendant failed to meet a reasonable standard of care, and damages were thereby caused.  An infection outbreak carries the risk of a class action as the plaintiff may claim others were similarly affected by the hospital’s alleged negligence.

Although several class actions for infection have been commenced, none has proceeded to trial.  Canadian courts have yet to consider important issues such as the appropriate standard of care to which hospitals will be held.  This will require analysis of the multi-factorial nature of infection outbreaks and an evaluation of whether the hospital’s actions over the relevant period were reasonable.

Physician competence class actions

A second type of class action, usually flowing from proactive quality initiatives, contemplates a review of all or a significant portion of a physician’s clinical practice.  Often involving allegedly flawed pathology or radiology reports, these proceedings piggyback public announcements that a review of a physician’s or lab’s performance is underway.

This type of claim — it is usually alleged the hospital was negligent in its oversight role or in appointing an “incompetent” albeit fully qualified physician — is being advanced presently inSaskatchewanand inNew Brunswick.  Retrospective reviews looked for undiagnosed cancers or other diseases or injuries going back as much as 15 years.

Mere publication of the existence of a review may cause stress for the patients involved, the vast majority of whom later learn their tests were appropriately done.  A recent Ontario Court of Appeal decision held that stress alone is not a compensable injury in this sort of case.

Should they be certified as class actions, the very question to be heard by aNew Brunswickcourt in September 2011, these cases will lead to a daunting patient-by-patient determination as to whether the physician fell below standard in providing the initial report.  A review report may differ in some aspect from the initial report, but a minor change in interpretation does not necessarily mean the physician’s initial report was either inaccurate or below standard of care.

Indeed, the very fact that expert evidence is necessary on a case-by-case basis to determine whether there was a breach of standard is a main argument against class certification.  And even if standard of care was breached in a particular case, further detailed review would be necessary to determine whether the “error” was picked up in some other way, or had an impact on the patient’s outcome.

What can hospitals do to mitigate risk?

Infectious disease outbreaks are likely to occur from time to time even with best practice.  Thus it is important to have robust systems in place for:

  • Surveillance of infections, including periodic review by a multi-disciplinary team who can analyze trends and reference meaningful comparators
  • Early identification of concerning developments, including the ability to alert appropriate persons within the hospital
  • Implementation of as many infection prevention and control best practices as possible
  • Frequent updating of infection control policies and associated staff education
  • Verifying appropriate precautions are implemented in respect of infected patients
  • Antibiotic management
  • Creation of a multi-disciplinary outbreak management team as required

With regard to physician competence issues, hospitals should consider systems for:

  • Rigorous review of physician qualifications and references prior to appointment
  • Implementation of quality assurance programs, including audits of pathology and radiology practices
  • Tracking of reporting turn around times and addressing timeliness complaints
  • Following up subsequently identified missed diagnoses quickly and performing a root cause analysis
  • Where competence issues arise, requiring appropriate skills upgrades, with regulatory reporting and reviews where necessary


Evidence of these types of systems may assist legal counsel in showing the hospital exercised reasonable diligence to prevent and control infection despite transmission and physician incompetence despite occasional error.  After all, an ounce of prevention is worth a pound of cure.