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New Brunswick Medical Malpractice Class Action Goes to Court

Victor Lewin - Monday, September 12, 2011

Personal Injury lawyers at Wagners represent the injured victims of a class-wide medical negligence case in Miramichi, New Brunswick. Lawyers for the victims were before the New Brunswick Courts last week arguing for class certification in a proposed class action filed in relation to what is perhaps the largest pathology scandal in Canadian legal history.

Pathology is the study and diagnosis of disease (typically in tissue). It plays a vital role in the diagnosis, treatment and prognosis of patients. Pathologists generally work in Hospital settings. Diagnoses from pathology labs give treating clinicians the information required to properly treat the patients. Pathology errors can have an extremely harmful effect on patient health.

In 1993, the Hospital in Miramichi, New Brunswick was in need of a pathologist. It hired Dr. Menon. The offer of employment was made despite Dr. Menon's medical referee raising doubts as to his competency and in breach of the Hospital's Medical Staff By-laws and Rules. Dr. Menon was hired despite inadequate information and unsatisfactory references on his qualifications and capabilities.

From 1993 to 2007, Dr. Menon performed pathology work in the Hospital. During most of this time, he was the Chief of Pathology, responsible for lab protocols. The evidence suggests that during Dr. Menon's tenure, the pathology lab in Miramichi was operating with error rates as much as 1000% above the standard pathology rate of error.

The Plaintiffs allege the cause of the unacceptable high rates of error to be the incompetence of Dr. Menon and the systemic failures of both the doctor and Hospital. The work of a doctor who failed to possess the requisite skills and systemic failures in the operation of a hospital's pathology lab resulted in widespread patient harm. This claim seeks redress for those harmed.

The legal stamp of the case is the allegation of incompetence against Dr. Menon and the complicity of those who hired him. The certification issue hinges whether thousands of his patients can obtain access to justice through a class-wide remedy for the harm to which this incompetence has put them.

Hospital-thumb-333x221-26129.jpg The Hospital owed a duty to patients to see that competent staff were hired and retained. When it knew or should have known about problems within its pathology lab, the Hospital owed a duty to its patients to address the problems. It is alleged that the Hospital is liable for failing to meet these duties.

Being incompetent is tortious conduct. Under no circumstances can a reasonable medical practitioner be incompetent. It is below the standard of care. It is also a breach of contract and a breach of fiduciary duties for a doctor to treat a patient while incompetent.

As Chief of Pathology, the doctor further owed a duty to patients to establish proper lab protocols and implement quality assurance programs. The high error rates within his pathology lab were known or ought to have been known to him. As Chief of Pathology, he owed a duty to patients to assess the cause of the errors and take appropriate steps to rectify the state of affairs. It is alleged that Dr. Menon is liable for failing to meet these duties.

Lawyers for all parties were in Court last week. Lawyers for the doctor and Hospital were not opposing the negligence arguments. Rather they were opposing proceeding on the basis of a class action. Lawyers for the patients argued that individual actions would be inefficient. Each patient's claim shares issues in common with many other former patients of the pathology lab. The collective resolution of these issues will achieve both judicial economy and access to justice by permitting substantial ingredients of a large number of claims to be resolved on a class-wide basis. Compared to any alternatives, a class proceeding is the preferable procedure for the fair and efficient resolution of this dispute. It was argued that a class action the best and probably the only chance for those patients who have suffered harm to obtain a remedy.

The New Brunswick Judge hearing the medical malpractice certification arguments reserved his decision. It is expected to be released in several months.

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