Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50888
who had no idea there may have been a connection between their illnesses and a blood transfusion. "Notice provisions and certification alert class members of potential problems they may not be aware of," he says. Defence lawyer Janie Bussey of Stewart McKelvey in St. John's, N.L., says the health-care class action is not a case where the consumer can walk away from a service provider when he or she is dissatisfied. "It's a continuing relationship," Bussey explains. Bussey's colleague Daniel Boone It was a blow to the infected victims and the families of those who had already died. Lawyers involved in the various class actions around the scandal readily agreed the victims and justice would be better served through class action proceedings. "It allows people with smaller claims who wouldn't nor- mally be able to advance a claim to be able to do so," says Colin Stevenson of Toronto's Stevensons LLP. It's work that needs to be done and it takes technical legal skill to navigate the minefields and pitfalls inherent in the health-care class action. The concept is simple enough: class actions are civil suits brought by one or more parties in a similar situation. They're common in situations where people have been physically harmed or have died as a result of negligent health care. Generally, such actions involve a number of law firms co-operating for the benefit of all claimants or members 32 • APRIL 2010 INHOUSE of the class. Medical malpractice occurs when negligence or misconduct by a health- care professional results in the injury or death of a patient. Success in medical malpractice law requires an in-depth knowledge of not only the law, but also how it relates to the practice of medi- cine and medical science. Class action suits in a health-care setting are not pleasant, often coming down to figur- ing out the costs of peoples' health and, indeed, their very lives. They are also somewhat unique. When an error on the part of a health- care provider is discovered, the onus is on that provider to inform those affect- ed. In essence, the potential defen- dant is under an obligation to create the class. Indeed, says veteran class action lawyer Clint Docken of Calgary's Docken & Co., which represented more than 200 claimants in the tainted blood case. Docken heard from many people agrees: "Once your [computer] is found defective, you can trash it and buy another computer. Health-care consum- ers don't have that choice. Oftentimes people are getting health care from the people they're suing." That means there is an emotional investment in the case by virtue of its impact on the plaintiff 's life, says Boone. "The more emotionally invested people are in a class action, the more difficult they are to resolve." Not only do the interests of the health-care provider need to be resolved, but also the public trust must be ensured going forward. And that means the end objective is threefold. In his article, "The Future of Canadian Class Actions," Docken quoted a 1995 decision by Justice Joseph O'Brien of the Ontario Divisional Court in Abdool v. Anaheim Management Ltd. It noted three primary objectives in a class action: • Judicial economy, or the efficient handling of potentially complex cases of mass wrongs. • Improved access to the courts for those whose actions might not other- wise be asserted. This involves claims which might have merit but legal costs of proceedings were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pur- sue their legal remedies. • Modification of behaviour of actual