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Infection Control for Dentists Part 5 – Class Action Lawsuits!

By August 9, 2017January 21st, 2022Practice Management

So this blog is all about class actions launched against dentists (because of their infection control practices – or lack thereof).

As I write this, a Guelph dental practice is about to get sued in a class action by patients. By way of background, Guelph Dental Associates (which also operate under the name “Growing Smiles”) was shut down by public health inspectors and its 3,600 patients were urged to get tested for hepatitis B and C and HIV as a result of improper sterilization. This all started after the parents of a young patient complained about developing a bacterial infection after a trip to the dentist in June, which triggered an inspection and the shutdown. Weeks later, with the practice still not open, Gary Will of Will Davidson LLP says he signed up a few patients in a class action lawsuit (which could theoretically include all 3,600 patients) and is seeking millions of dollars in damages.

So what exactly would patients be suing the dental practice/dentist (s) for?

Well, let’s look at the case of Healey v. Lakeridge Health Corp. [2011] O.J. No. 231, to gain some insight, shall we? There, the Ontario Court of Appeal had to deal with class actions against Lakeridge Health Corporation (“Lakeride“) and some physicians arising from incidents in which large numbers of people were exposed to 2 patients with tuberculosis (“TB“). IMPORTANTLY: none of the persons suing had actually tested positive for TB. But they sued anyways on behalf of a class of patients because they received noticed advising them that they should be tested and that in turn caused them MENTAL ANXIETY, SUFFERING, and DISTRESS. They admitted that they didn’t have a psychiatric illness. So the question before the Ontario Court of Appeal was: could they receive compensation for their suffering?

Now, in order to prove that Lakeridge was responsible, the patients would have to demonstrate (1) that Lakeridge owed them a duty of care; (2) that Lakeridge’s behaviour breached the standard of care; (3) that the patients sustained damage; and (4) that the damage was caused, in fact and in law, by Lakeridge’s breach. So let’s look at each of those things now…

Duty of Care

So the first thing the court examined was whether Lakeridge owed a DUTY OF CARE to uninfected persons. The Court of Appeal said YES it does: Lakeridge owes a duty of care to patients and visitors at the hospital to take reasonable care to prevent the transmission of infectious diseases. Importantly, this duty of care to avoid physical harm to person or property “embraces the category of claims for nervous shock” (paragraph 37). Whoa… what’s this “nervous shock” category all about?

Nervous Shock

“Nervous shock” or “psychological injury” is a type of claim that, if proven, can result in a court paying compensable damages. In order to establish damages for nervous shock, the patients would have to prove (1) they suffered the type of damages that are compensable and (2) that the psychological injury was caused by Lakeridge’s negligence (was the damage a reasonably foreseeable consequence of the defendant’s negligence)? After reviewing a long-line of cases in Canada, the UK and Australia, the Court of Appeal found that that claimants DID NOT prove that they had suffered the type of damages that are compensable. Here’s what they wrote:

60      It is apparent from this review of the jurisprudence that the appellants face a very strong – although admittedly not unbroken or unquestioned – line of authority that to recover damages for psychological injury independent of any claim for physical injury, they are required to show that they suffer from a recognizable psychiatric illness [emphasis added].
64      … [I]t is my view that the evidence in this case falls short of demonstrating that the appellants suffered harm of sufficient gravity and duration to qualify for compensation. The harm revealed by the evidence was not “serious trauma or illness” that amounted to more than “upset, disgust, anxiety, agitation or other mental states that fall short of injury” or that was “serious and prolonged and [rising] above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”
65      As has been repeatedly stated in the case law, there are strong policy reasons for imposing some sort of threshold. It seems to me quite appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society and to decline to open the door to recovery for all manner of psychological insult or injury [emphasis added]. Given the frequency with which everyday experiences cause transient distress, the multi-factorial causes of psychological upset, and the highly subjective nature of an individual’s reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour. The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the injury is serious and prolonged. Even critics of the current rule tend to agree that it is conceptually sound to limit compensable claims for psychological harm to those that are serious. Indeed, as I have mentioned, the appellants themselves do not dispute the need to impose some threshold.

Causation

Now, even though the Court of Appeal dismissed the case on the grounds that the patients had not proven “nervous shock” or “psychological harm”, the Court went on to talk about the other factors that make up a successful claim for negligence – starting with “Causation”. In other words: even if the patients suffered and that suffering could be compensated, was their suffering caused by Lakeridge’s actions / omissions? The Court of Appeal stated that yes, there could be causation and it could be determined at a trial (if it ever got there). Keep in mind that the Court had already dismissed the case, but wanted to complete their analysis in case they got something wrong.

Aggregate Damages

The Court of Appeal went on to examine whether the patients could receive “aggregate damages”. Aggregate damages are covered in section 24(1) of the Class Proceedings Act and say that a court can determine aggregate damages for an entire class of claimants where certain criteria are met. Here, the Court felt that the assessment of damages required proof of harm suffered by the INDIVIDUAL class members, so relying on “aggregate damages” wasn’t available to the class claimants. There were significant and numerous individual issues pertinent to the issue of liability and damages that must be determined.

Conclusion

The Court of Appeal held that the harm suffered by the class members was NOT compensable because they hadn’t proven that they had suffered from a physical disability or illness, had not suffered from a recognizable psychiatric illness, and had not suffered from any serious / prolonged psychological injury.   Objectively speaking, they had suffered upset, disgust, annoyances, anxieties, fear, and / or agitation that falls short of actual injury.

DMC