Statistical and Circumstantial Evidence in Medical Malpractice Class Action Proceedings: Levac v James, 2023 ONCA 73

  • April 28, 2023
  • Lucy G. Jackson

This is an interesting class proceeding addressing whether circumstantial and indirect evidence can be used to support findings of negligence. The Ontario Court of Appeal ultimately agreed that there existed “powerful circumstantial evidence” which proved, on a balance of probabilities, a causal link between the class members’ infections and the Defendant doctor’s subpar infection prevention and control (“IPAC”) practices. It approved of the lower court’s reliance on statistical evidence with respect to rates of infection and evidence of the Defendant doctor’s IPAC practices in making this finding.

The facts of this case are as follows. The Plaintiff, Anne Levac, attended the Defendant doctor’s clinic on three occasions over the summer of 2012 for lumbar epidural steroid injections to treat her chronic lower back and right leg pain. In late November of 2012, an infectious disease outbreak was discovered at the Defendant’s clinic after a case of meningitis in a patient who had recently received an epidural injection at the clinic was reported to Toronto Public Health (“TPH”). TPH initiated an investigation and ultimately identified three cases of meningitis, five cases of epidural abscess and one case of bacteraemia, all connected to the clinic. All nine patients had serious infections requiring hospitalization and it was determined through testing that six of the patients had the same strain of staphylococcus aureus. In addition, samples from the Defendant doctor and the room where the injections were administered were also found to match the strain.

The Plaintiff alleged that the Defendant doctor was responsible for the outbreak and was negligent because he implemented substandard IPAC practices, failed to report or investigate the infections, and failed to remediate his IPAC practices after learning of the initial infections. A number of deficiencies in the IPAC practices were identified, including by way of expert evidence. The class proceeding was advanced on behalf of a class of persons who received an epidural injection administered by the Defendant doctor between January 1, 2010 and November 30, 2012 and developed a clinical infection.