Dr. Freeman

The plaintiff brought a motion to amend the certification order in a class action concerning a bacterial infection outbreak among patients who received epidural steroid injections from the defendant physician.

The plaintiff sought to revise and expand the common issues to include negligence, causation based on epidemiological evidence, fiduciary duty, and limitation periods, and to add two subclasses.

The defendant physician brought a cross-motion to decertify the action, arguing that causation and standard of care required individualized assessments.

The court granted the plaintiff's motion to amend the certification order and dismissed the defendant's motion to decertify, finding that the plaintiff's novel methodology of using statistical correlation to prove causation met the 'some basis in fact' standard for certification and should be tested at a common issues trial.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.