Will a Corporation Shield a Dentist from Personal Liability?
If you are have a professional corporation, are you PERSONALLY shielded from negligence claims based on failing to adhere to infection prevention and control protocols and standards? NOPE. Why not? Because Section 3.4(1) of Ontario’s Business Corporations Act says that there no limits on the professional liability of a shareholder of a professional corporation (i.e. the principal dentist) with respect to the acts of that shareholder or the acts of employees or agents of that corporation. Indeed, section 3.4(3) says that the professional liability of a dentist is not affected by the fact that they’re practicing through a professional corporation.
Will a Dentist be Liable for the Actions / Omissions of their Staff?
Vicarious liability is a common law (judge made law) doctrine that says that an employer is liable for the negligent acts and omissions of their employee. Courts have held that employers are vicariously liable for both employee acts AUTHORIZED by the employer AND UNAUTHORIZED acts so connected with authorized acts that they may be regarded as modes of doing authorized acts. What matters is whether the alleged negligence involves the element of control and whether the person committing the tort was at all material times under the supervision and control of the employer. It won’t matter if the person is an employee or independent contractor for the employer / client to be found vicariously liable. Where the person is an employee, then the employer may be liable in negligence for inadequately supervising them or substandard hiring or training practices.
Furthermore, section 3.4(2) of the Business Corporations Act says that, for the purposes of professional liability, the acts of a professional corporation shall be deemed to be the acts of the shareholders, employees or agents of the corporation. On top of that, Section 3.4(4) says that a person will be jointly and severally liable with a professional corporation for all professional liability claims made against the corporation if that person was a shareholder of that corporation when the errors and omissions were made / occurred.
What About PLP?
Dentists’ Professional Liability Program will cover a member who runs into issues with infection control as it is part of the practice of dentistry. It would be considered part of each member’s $2-million protection. An example of this would be if a patient sued, alleging they caught an infection as a result of the dentist / practice failing to adhere to proper infection prevention and control protocols and standards.
PLP will even cover vicarious liability. Per their website, “Dentists and their health professions corporations are also entitled to assistance when they are sued for vicarious liability, i.e. for acts and omissions of their employees in rendering professional services on or behalf of members or their HPCs.”
So Centre City Periodontists, P.C. v. Dentstply International, Inc.  U.S. District Court, E.D. Pennsylvania is an interesting and recent case worth mentioning. In that case, Centre City Periodontists, P.C. and dentists residing in Pennsylvania and New Jersey sued Dentsply International, Inc. in a class action for breach of express warranty. They claimed alleged deficiencies in the design and labeling of various models of the Cavitron ultrasonic scaler.
The crux of the dentists’ claim was that the Cavitron isn’t safe or suitable “for its indicated uses because the internal walls of the device’s waterlines naturally accumulate biofilm, exposing patients and dental staff to potentially hazardous bacteria levels in excess of safe water standards, even when operated and maintained in a manner consisted with the Directions for Use and related materials”.
According to the dentists, this inherent defect constituted a breach of the Cavitron’s express warranty against defects in materials or workmanship. Together with Dentsply’s failure to disclose this defect, this amounted to a breach of an express warranty of safety and suitable contained in the Directions for Use and related materials.
By way of background, a Cavitron is a device used to deliver high pressure, pulsating water stream into a patient’s mouth through a hand piece at the end of a flexible tube that is connected to the device’s main body. The water stream keeps the working area cool and frees up debris during non-surgical procedures. Only certain quality of water should be used because of the potential for pathogenic microorganisms to be transmitted through the water.
The U.S. Centers for Disease Control and Prevents established guidelines in 2003 to advise health professionals to use adaptive devices or closed water systems combined with chemical flushing and other measures in consultation with manufacturers to achieve no more than 500 colony forming units per milliliter (the regulatory standard for portable water established by the U.S. Environmental Protection Agency). In other words: water flushing isn’t enough on its own. Even the American Dental Association was recommending to its members in 1996 that biolfilm formation in waterlines should be managed using a combination of strategies such as chemical treatment and independent reservoirs.
Now, because the Directions for Use and related materials HAD NOT required the installation of of a closed water system or chemical flushing AND HAD NOT warned buyers of the biofilm problem, the dentists who launched the class action purportedly believed that the Cavitrons would deliver potable water consistent with safe water standards for its indicated uses when installed on an OPEN water source and FLUSHED only with water in accordance with the Directions for Use. Over time, these dentists noticed that, when left untreated, the Cavitron’s waterlines naturally accumulated potentially hazardous levels of biofilm.
So the dentists sued Dentsply in 2010 and alleged that Dentsply had allegedly breached an express warranty, negligently designed the Cavitrons and violated New Jersey’s Consumer Fraud Act. For the class to be certified as a class action to proceed under the rules of civil procedure, there number be (1) a numerous class that joinder of all members is impracticable, (2) common questions, (3) typical claims, and (4) adequate representation. Let’s look at each of these requirements, shall we?
The plaintiff dentists were unable to prove that the class was so numerous that having them individually sue is impractical. Yes, the plaintiff dentists pointed to the number of dentists practicing in New Jersey and Pennsylvania who COULD be included in the class of dentists who bought Cavitrons and also connected them to an open water source. But the Court could not “assume”, “speculate” or defer to “common sense” with respect to how many class members existed. The plaintiff dentists must produce evidence, direct or circumstantial, specific to the products, problems, parties, and geographic areas actually covered by the proposed class definition to allow a court to make a FACTUAL finding. And there was insufficient evidence here. While the plaintiffs failed at this point and the whole case could be dismissed as a result, the Court went to to assess the other components of having a class action certified.
This is the only component of certifying a class action that the plaintiff dentists were able to establish – namely, whether Dentsply’s conduct was common as to all members of the class. The plaintiff dentists argued that the breach of warranty claims all share as a common issue that Dentsply represented in the Directions for Use that the Cavitrons were suitable for its indicated dental uses if purchasers followed Dentsply’s installation and maintenance instructions. The Court agreed that these types of questions will result in common answers that apply across the board to all members of the class.
Importantly, the common issues must be typical among the class. The claims of the class representative must be generally the same as those of the class in terms of the legal theory advanced and the factual circumstances underlying that theory. Also, the class representative must not be subject to a defence that is both inapplicable to many class members and likely to become a major focus of the litigation. Finally, the interests and incentives of the representatives must be sufficiently aligned with those of the class.
On these issues of typicality, the plaintiff dentists failed to satisfy this requirement. First, some plaintiff dentists bought their Cavitrons at a discount from an UNAUTHORIZED dealer (this could defeat that plaintiff dentist’s claim since the warranty covers only products purchased from an AUTHORIZED Dentsply dealer). Second, some plaintiff dentists acknowledged that they hadn’t necessarily read (or recall having read) all of the relevant provisions of the Cavitron’s Directions for Use; but not being aware of the content CANNOT be typical representatives of a class that was allegedly misled and damaged by Dentsply’s representations in those same Directions for Use! For these and other reasons, the Court held that the plaintiff dentists’ claims are not sufficiently typical to warrant certification of the class action.
Because some of the plaintiff dentists had specific issues that diverged the interests and the incentives between them and the class members, which meant that they could not fairly and adequately represent the class. For example, some of the plaintiff dentists had untimely claims because they bought Cavitrons too early on and could be barred from bringing claims based on the statute of limitations. And this fight to have these particular plaintiff dentists involved involved in the class action might create intra-class conflict because the plaintiffs may be incentivized to spend resources to save their less valuable claims without any obvious benefit to class members with more valuable, timely claims.
Another problem with adequacy is the fact that a plaintiff dentist and one of the their lawyers had been friends for twenty-five years and still regularly kept in touch despite living on opposite coasts. The plaintiff dentists treated that solicitor’s family members. And the plaintiff dentist replied that he available to help when approached by the solicitor about the lawsuit. All of this raised serious concerns as to the plaintiff dentist’s adequacy to represent the class.
For these and other reasons (including finding that a class action was not superior to other available methods for adjudicating this controversy), the Court refused to certify the class.
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.  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” 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:
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.
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.
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.
In this blog, I’m going to discuss whether dentists can refuse to treat a patient who carries a disease like AIDS or an HIV-related illness. Section 1 of the Human Rights Code says that everyone is entitled to equal treatment with respect to services without discrimination based on their disability. Importantly, the Human Rights Tribunal of Ontario has stated that people living with AIDS or HIV-related illness could be considered disabled. The Human Rights Commission of Ontario (now called the Human Rights Tribunal of Ontario) issued a policy statement that stated:
“AIDS (Acquired Immunodeficiency Syndrome) and other medical conditions related to infection by the Human Immunodeficiency Virus (HIV) are recognized as disabilities within the meaning of the Code. All persons who have or have had, or who are believed to have or have had, or are perceived to have, AIDS or HIV-related medical conditions, including those who do not show symptoms of AIDS or AIDS-related illnesses, are entitled to the protection of the Code in employment, services, housing, contracts and membership in trade unions.”
This policy provides guidance to the Human Rights Tribunal of Ontario in its interpretation of the Human Rights Code. As a result, dentist cannot discriminate against patients with AIDS or HIV-related illnesses. This means that they can’t use unnecessary or extraordinary infection control or other measures that are not used for other patients.
In the seminal but dated case of Jerome v. DeMarco, 1992 CarswellOnt 5309, the question faced by the Ontario Board of Inquiry (responsible for deciding matters under the Human Rights Code of that time) was whether a dentist had discriminated against a patient who had AIDS. In that case, Mr. Jerome complained of discrimination by his then dentist at the time, Dr. Paul DeMarco, on two grounds: (1) being denied dental / hygiene treatment as a patient because he had AIDS and (2) having his treatment deferred because he had AIDS.
By way of background, Mr. Jerome was 30 years old at the time. He had AIDS. He arrived for his check up and cleaning and was asked by the receptionist to fill out a medical, dental and insurance history form. When he listed certain medication the receptionist wasn’t familiar with, the receptionist asked why he was taking it. He replied that he had AIDS. Dr. DeMarco came out and was then told that. He asked Mr. Jerome to come into his office. There is some dispute as to what happened next, but Dr. DeMarco claimed that he was willing to treat the patient, but not until later in the day (after his last appointment). Dr. DeMarco claimed the delay was for good reason because he wanted to contact his physician, get information on enhanced infection control protocols for treating patients with AIDS and because he (not the hygienist) would have to do the cleaning (and wasn’t otherwise available until the end of that day).
Now, before addressing whether Dr. DeMarco had discriminated against Mr. Jerome, the Ontario Board of Inquiry stated that AIDS was a handicap (a protected head under the Human Right Code at that time) and hence a service provider could not discriminate on the basis that another person had AIDS. At Paragraph 14:
14 Based upon the nature of AIDS as a disease and its implications for those who have it, and applying both the words of section 9(1)(b)(i) of the Code and the reasoning of the Supreme Court of Canada in the above cited cases [namely: Biggs v. Hudson (1988), 9 C.H.R.R. (B.C. Human Rights Council); E. (S.T.) v. Bertelsen (1989), 10 C.H.R.R. D/6294 (Alta. Bd. of Inq.); Fontaine v. Canadian Pacific Ltd. (1989), 11 C.H.R.R. D/288 (Cdn. Human Rights Tribunal)], I conclude that persons living with AIDS are handicapped within both the literal words and the spirit of the Code. As such they are entitled to protection from discrimination under Part 1 of the Code. It is accordingly appropriate to consider the instant case under sections 1 and 8 of the Code [emphasis added].
With respect to the first alleged grounds of discrimination – that Dr. DeMarco had discouraged or prevented Mr. Jerome from being a patient, the Board held that there wasn’t enough evidence to support this. Mr. Jerome and Dr. DeMarco both testified that Dr. DeMarco was prepared to examine Mr. Jerome at the end of that day. And Dr. DeMarco had not acted in such a way as to discourage Mr. Jerome from becoming a patient. Dr. DeMarco had knowingly treated persons with AIDS in the past and had taken referrals from the AIDS Committee of Windsor. Admitted, Dr. DeMarco had been asked to be taken off the referral list for the AIDS Committee of Windsor, but this didn’t amount to discrimination so long as he was willing to treat people with AIDS. Moreover, although Dr. DeMarco was wearing gloves, a cap and masks, this was not viewed as discriminatory conduct to discourage Mr. Jerome from being a patient. This was standard treatment attire for Dr. DeMarco. For these reasons, the Board of Inquiry wrote the following at paragraph 33:
33 Accordingly, I hold that Dr. DeMarco did not refuse to treat Mr. Jerome either directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient.
So what about deferring treatment? Well, on that basis, the Board ruled that Mr. Jerome was treated differently than other patients because he had AIDS or because of Dr. DeMarco’s medical judgment. As such, there was a case of discrimination. But did Dr. DeMarco have a valid defence?
YES he did! The Human Rights Code of that time stated that, if Mr. Jerome could NOT be accommodated WITHOUT undue hardship to Dr. DeMarco (considering the cost, outside sources of funding and health and safety requirements), then Mr. Jerome’s rights would NOT be violated. In other words: if accommodating Mr. Jerome would cause undue hardship to Dr. DeMarco, then Dr. Demarco did not violate Mr. Jerome’s rights when he discriminated against him by deferring his treatment.
Well, at first the Board of Inquiry said that Dr. DeMarco wasn’t able to postpone treatment in order to get more details on infection control protocol with AIDS patients. There was a lot of which is better: UNIVERSAL INFECTION CONTROL PRECAUTIONS vs. ENHANCED INFECTION CONTROL PROCEDURES FOR AIDS PATIENTS. You see, Dr. DeMarco was trying to argue that he should wait until he gets more information and is able to implement the UNIVERSAL precautions before treating MR. Jerome. This would have included doing things like draping walls and equipment and more thoroughly sterilizing equipment. But there wasn’t enough time because Mr. Jerome came in that day for his appointment and no one knew he had AIDS until he announced it. Plus, all the experts testified that no additional or enhanced infection control procedures were required ABOVE AND BEYOND universal infection control precautions when treating AIDS patients.
So what about Dr. DeMarco wishing to postpone treatment until he contacted Mr. Jerome’s physican? And what about Dr. DeMarco doing the treatment himself (instead of having a hygienist do it?). Here, the Board accepted evidence that it was essential to consult with the attending physician on the patient in order to develop a safe and effective dental treatment plan. The Board also found that Mr. Jerome required a deeper cleaning (which involved providing cutterage and a local anesthetic) than a hygienist was capable of giving. So Dr. DeMarco HAD to provide the cleaning rather than the hygienist. Finally, given Dr. DeMarco’s schedule that day, in order for him to do the cleaning required at the time of Mr. Jerome’s appointment, he would have to had to significantly delay another patient’s treatment (which had already begun). Per the Board: “This would be very poor dental practice and an undue hardship upon that patient. This would not have been the case for a normal cleaning, since Dr. DeMarco would have done an examination and the hygienist would have done the cleaning”. Based on the health care needs of his other patient at the time, the earliest Dr. DeMarco could have treated Mr. Jerome was at the end of the day.
In conclusion, the Board found that Dr. DeMarco had provided a complete defence to the prime facie discrimination in the provision of services because of handicap (i.e. AIDS). Per paragraph 54:
54 I have found that the Commission did not demonstrate a prima facie case of discrimination with respect to the first prong of its case, namely that Dr. DeMarco refused to treat Mr. Jerome directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient. I have found that there was a prima facie case of discrimination with respect to the second prong. which is that of the deferral of treatment, but that the respondent has provided a complete defence to this under section 16 of the Code. I accordingly find that Dr. DeMarco did not discriminate in services with respect to Mr. Jerome on the basis of handicap. The complaint is dismissed.
So this blog is all about how cases that show HOW dentists could land in hot water when it comes to cords and the obligation to report incidents.
CORDS as TRIPPING HAZARDS and REPORTING TO AN OHSA INSPECTOR
If you’re using a laser (like a biolase) in your office and that machine has electrical power cords running to the wall, guess what – you might have a tripping hazard! In the case of R. v. Grey Bruce Health Services, 2003 CarswellOnt 10494, Mary Wilson, an experienced registered nurse (EMPLOYEE) tripped and fell in CAT scan room at a hospital in Owen Sound (EMPLOYER). The only people in the room when Ms. Wilson fell were the patient and a radiologist. This all happened back in 1999. Basically, Ms. Wilson Wilson had moved a portable blood pressure monitor to the other side of the patient at the request of the radiologist. The monitor was now in high traffic area. At some point, Ms. Wilson tripped (although it’s unclear why; she assumes it was because of the cord) and suffered a 3 part fracture to her arm. Ms. Wilson contacted the hospital’s employee health department, which reported the incident to the Ministry of Labour a week later.
After a few days at trial, the Justice of the Peace overseeing the case wasn’t convinced about the cause of Ms. Wilson’s fall. That said, the Justice found that the hospital was an employer had failed to ensure that a work surface was kept free of obstructions and hazards and was fined $15k for that. The Justice also fined the employer $5k for not immediately reporting the incident. On appeal, these convictions were upheld.
Things to remember:
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