I’m pleased to share with you my article infection control lawsuits and how dentists need to be aware of the legal risks associated with patients and their family members getting letters from public health or the practice itself, advising them to get checked for communicable diseases:
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Infection prevention and control and Public Health inspections are a hot topic! Dentists are worried about their practices and asking us for help. Here is a quick overview of what you need to know about Public Health Ontario (“PHO“) inspections.
The Health Protection and Promotion Act, RSO 1990, c H.7 (“HPPA“) provides the legislative basis on which PHO can receive complaints, conduct inspections and issue/enforce orders.
Yes. There is no protocol in place for PHO to do random inspections of dental offices. At present they only inspect in the event of:
Once a complaint is received, the inspector must notify the RCDSO and will work collaboratively with the RCDSO to conduct the inspection. If necessary, other government branches will be notified, such as the Ministry of Labour if, for example, the investigation uncovers issues under the Occupational Health and Safety Act (for more information about your duties under this Act, click here).
An inspector may enter the premises at “reasonable times” to make inquiries. If you deny entry to the inspector, they may apply to a judge for a warrant to enter and conduct the inspection provided there are reasonable and probable grounds for believing that access is necessary.
Once on the premises, the inspector has the power to do any number of things, including:
Inspectors are looking for compliance with the RCDSO guidelines, PIDAC’s best practices document, and manufacturer’s guidelines (where applicable). Here is a list of some of the infractions that inspectors have found upon entering dental and other offices:
If one or more infractions – also called infection prevention and control (“IPAC“) lapses – are found at the dental practice, then the inspector has powers to make orders to correct those lapses. An order may be made orally, on the spot, if taking the time to put the order in writing will increase the health hazard.
Orders may include:
Appeals from orders of inspectors lie with the Health Services Appeal and Review Board. However, launching an appeal does not automatically preclude you from having to comply with an inspector’s order unless the Board specifically allows it pending a hearing.
Then, the inspector or medical officer may direct its staff to carry out the order, including posting a public notice about the existence of a health hazard. If this occurs, then you will be responsible for paying for the work required plus legal costs. If you refuse to pay, then the amount will be tacked onto your property tax bill.
Failure to comply is an offence punishable by:
Note: directors, managers and officers are automatically liable for corporations under HPPA unless they can prove that they took all reasonable steps to prevent the commission of the offence.
Other remedies available to PHO if you refuse to comply include obtaining an injunction from the Superior Court of Justice which is an order by the court requiring you to comply. Refusal to comply with a court order may culminate in contempt of court plus imprisonment.
Where an investigation is undertaken due to a complaint, the complainant must be notified of the results of that investigation.
Where an investigation was undertaken and one or more IPAC lapses were identified and orders made, Each public health unit of PHO must publish both the initial report (consisting of findings and orders made) and the final report (consisting of how lapse was corrected). For your information, there are 36 public health units across Ontario and each one has their own website where lapses are posted.
Currently there are about 10 IPAC lapse reports posted about dental offices across Ontario. Here are links to the IPAC lapse reports, as found on each health unit’s website that may help you decipher what public health will be looking for if they enter your office:
Note: IPAC lapse reports are only required to be posted for 12 months. These reports will eventually be taken down (and hence you may find that some links will, in time, go stale).
Beyond the IPAC lapse reports, in some instances, the public health unit may advise patients of the lapse, if the lapse has the possibility of affecting them, as was done in the case of Guelph Dental Associates:
Also, if the media picks up on a closure or IPAC lapse, you may find yourself in the midst of a flurry of negative press, as Guelph Dental Associates has in the past few months:
If you want to avoid a complaint in the first place, you should do the following:
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about HPPA or PHO inspections, need advice about your obligations as an employer under the OHSA, or need help coming up with and implementing a new office policy manual, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
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.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
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