Class Action Certified
In 2014, the Toronto Star broke the story about the outbreak. At least nine patients who received injections were infected with potentially deadly staphylococcus aureus bacteria. A December 2012 inspection by Public Health revealed 170 deficiencies in infection control at the clinic. Dr James was a carrier of the implicated bacteria. At that time, Dr. James told the Star “I am very remorseful and regretful (about what) happened to these people … I think about it every day that I hurt these people.” Soon after Levac filed a class action lawsuit. Dr. James denied any liability.
Dr. James’ legal defence is being funded by the Canadian Medical Protective Association (CMPA). The CMPA provides legal defense and liability protection for physicians in Canada. Fees paid by doctors to the CMPA are largely reimbursed with taxpayer funds.
In 2015, Dr James was found by a disciplinary committee of the College of Physicians and Surgeons of Ontario to have treated outbreak patients, including Levac, in unsterile conditions. “Your care — or, better said, lack of proper care — and procedures you performed on these patients is, and was, simply unacceptable,” chair Dr. Marc Gabel told James in December 2015 after the committee handed down a 10-month suspension. “The committee found that there were very serious breaches occurring over many months, and the consequences have been devastating,” says the disciplinary decision.
Even after the College decision, CMPA lawyers continued to fight the lawsuit. Harte Law PC moved for summary judgment. In December of 2016, a Superior Court judge certified the case and granted judgment entitling James’ patients compensation. Justice Paul Perell wrote that James’ failed to undertake proper infection control measures. Dr. James with the CMPA’s assistance appealed the ruling which was overturned by the Court of Appeal for Ontario, which cited a procedural failure in Perell’s ruling. The appeal court send the case back to be heard by a different judge.
On February 23, 2018, Justice Morgan certified the class action once again. The merits of the case will be considered by Justice Morgan early in 2019, more than 6 years after Levac was first infected.