Bruce Estate v Toderovich

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Berger, Watson and Rowbotham, JJ.A.
• Neutral Citation: 2014 ABCA 44
• Citation: 2014 ABCA 44,(2014), 569 A.R. 78,569 AR 78,(2014), 569 AR 78,569 A.R. 78
• Docket Number: 1303-0233-AC
• Date: 27 January 2014
• Subject Matter: criminal

Bruce Estate v. Toderovich (2014), 569 A.R. 78; 606 W.A.C. 78 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.016

Hazel Bruce, Executor of the Estate of Robert Edward Bruce, Deceased, on behalf of the Estate of Robert Edward Bruce, Deceased, and on behalf of and for the benefit of Hazel Bruce, Jackie Farion, Sharon Gerlach, Kathy Pozerniuk, Heather Zakordinoski, Barry Bruce and Connie Marcinicoski (appellants/plaintiffs) v. Eugene Toderovich, Mbongani Kabila, East Central Health and St. Joseph's General Hospital (respondents/defendants)

(1303-0233-AC; 2014 ABCA 44)

Indexed As: Bruce Estate et al. v. Toderovich et al.

Alberta Court of Appeal

Berger, Watson and Rowbotham, JJ.A.

January 30, 2014.

Summary:

The plaintiffs brought an action alleging that the defendants East Central Health and Lakeland Regional Health Authority were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus, the Hepatitis B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV). The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals. The plaintiffs sought to certify their action as a class action.

The Alberta Court of Queen's Bench, in a decision reported at 497 A.R. 256, held that only the CSR infected patients fulfilled the requirement for certification. The application was otherwise dismissed. The plaintiffs appealed.

The Alberta Court of Appeal dismissed the appeal.

Editor's note: for a case dealing with procedural issues between these parties, see 483 A.R. 322.

Hospitals - Topic 2044

Liability of hospitals - To patients - General - Duty of care - [See Practice - Topic 209.3 ].

Hospitals - Topic 2061

Liability of hospitals - To patients - Breach of contract - General - [See Practice - Topic 209.3 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs brought an action alleging that the defendants East Central Health and Lakeland Regional Health Authority were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitis B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV) - The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals - The plaintiffs sought to certify their action as a class action - At issue was, inter alia, whether the pleadings disclosed a cause of action (Class Proceedings Act, s. 5(1)(a)) - The case management judge held that former patients who might have been infected with MRSA had a potential cause of action in negligence against some or all of the defendants - A hospital had a duty to establish appropriate systems and protocols to promote patient safety and provide good patient care, to protect patients from infection and to assure that aseptic procedures were followed - Further, it was not plain and obvious that these individuals did not have a potential breach of contract cause of action - The reach of the proposed class in relation to the CSR was broader, extending first to former patients of SJGH who had a procedure that penetrated the skin or mucous membrane involving use of instruments sterilized in the CSR and who developed an acute bacterial infection within two weeks - As in the case of former patients infected with MRSA, these infected former patients also had potential claims in both negligence and contract - There were two remaining groups of proposed class members: 1) former patients who were notified for testing in relation to CSR instruments but who did not develop an acute bacterial infection within two weeks and 2) others notified for testing due to potential exposure to blood-borne diseases from contact with CSR exposed patients - With respect to the first group, it was impossible for the plaintiffs to succeed on a claim that breach of a duty of care to prevent infection resulted in harm of any kind to the uninfected CSR patients - It was plain and obvious that the pleadings did not disclose a viable cause of action on the part of the uninfected CSR patients - With respect to the second group, presuming it to be true that the secondarily exposed persons became infected in relation to the alleged CSR problem, it was not plain and obvious that they did not have a potential cause of action - In summary, those potential members of the proposed class who satisfied the first cause of action requirement were the MRSA infected patients and the CSR infected patients including the secondarily exposed persons - The Alberta Court of Appeal affirmed the decision.

Cases Noticed:

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al. (2013), 450 N.R. 201; 364 D.L.R.(4th) 573; 2013 SCC 57, refd to. [para. 9].

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Co. et al. (2013), 450 N.R. 287; 364 D.L.R.(4th) 626; 2013 SCC 58, refd to. [para. 12].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 13].

Counsel:

P.S. Tinkler, for the appellants/plaintiffs;

P.J. Faulds, Q.C., for the respondents/defendants.

This appeal was heard on January 27, 2014, by Berger, Watson and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was filed at Edmonton, Alberta, on January 30, 2014.