While the legal term for the action is a 'discontinuance', the lawyers representing those who have allegedly had breast imaging reports misread at Sudbury’s Health Sciences North (HSN) told Sudbury.com a better word for it is "conversion."
“This was an order that we had to do by the court to make sure that the public was aware of a discontinuance, and there's really no other legal term for it,” said Jordan Assaraf of Gluckstein Lawyers, who is an associate lawyer on the case. “But to put it in layman’s terms, it is just a conversion of the action from class action to individual mass torts. There will still be a fairly high number of cases that we will be moving forward with and issuing claims individually, on behalf of those patients who have come forward.”
Unlike class-action lawsuits, where the representative plaintiff pursues the claim on behalf of the class members, mass tort actions allow for plaintiffs to pursue their cases individually. These plaintiffs may have different interests and assessments of individual damages may vary.
The main difference between mass torts and class action lawsuits is how the court treats the plaintiffs. Instead of treating them as a single entity, the court considers mass tort plaintiffs as individuals, and the compensation each plaintiff receives will reflect his or her specific damages. The order to ‘discontinue’ was filed by Gluckstein Lawyers on June 2, and initially, Assaraf and Gluckstein Lawyers declined an interview seeking clarity on what transpired with the proposed suit.
Assaraf and senior counsel, Steve Rastin, then contacted Sudbury.com after publication wishing to add context to the legal filings.
One of the issues with using a class action is that all members are bound by the result, and cannot re-litigate their own case if they do not like the result. Members of a class action are sorted into categories according to the nature and severity of their injuries and the money from a settlement or court award is divided after legal expenses are deducted.
Mass torts, on the other hand, do not require a representative plaintiff, as each individual plaintiff will file their own statement of claim. While the allegations in each claim will likely be broadly similar, the plaintiff’s unique circumstances and injuries will be considered.
If a settlement offer is made in a mass tort case, each individual claimant has the choice to accept it, reject it, or make a counter-offer. Unlike a class action where all class members are bound to a group decision, individuals taking part in a mass tort case retain the ability to direct their own case as they see fit.
Rastin said that the firm is concerned there will be people who were perhaps nervous about coming forward, and were hoping to remain anonymous within the class action. But while they feel the mass tort action will be the best course of action for those involved, said Rastin, that means each person needs to come forward individually, before Aug. 31, if they wish to be included.
“If you think you may have a case, you need to go get some advice. That's the message that we're trying to get out to the local community.”
The Aug. 31 date notice is important because that is when the timeline for filing begins again.
The Limitations Act sets out a basic limitation period of two years in Ontario. This means that a lawsuit must be filed within two years of the day on which the claim was discovered. Those who had their time limit paused because of their involvement with the suit, that is, their claim was ‘tolled’ as of Dec. 14, the beginning of the class action, will have their two-year period restart as of Aug. 31.
The notice of intent to discontinue issued by Gluckstein Lawyers states that those who have had their claim paused “should take notice that the limitation period for bringing a claim, if there is any time left within it, will recommence running on August 31, 2022.” Therefore, those who wish to continue with proceedings individually will need to refile, and consider that the two year period will recommence on Aug. 31, the official end date of proceedings.
As a result, former breast imaging patients of Health Sciences North wishing to claim compensation should seek legal advice and must commence their individual actions before their respective limitation period(s) expire.
The class action suit originally centred on issues of alleged negligence in Health Sciences North’s Radiology Department, specifically focused on quality and accuracy problems in breast imaging interpretation.
The suit alleges that, between 2008 and 2020, the department consistently fell below the required standard of care when interpreting breast imaging reports.
Gluckstein Lawyers notes in the Notice of Intent to Discontinue that Health Sciences North, the defendant hospital administrators and the defendant doctors deny these allegations.
The firm will be filing individual actions against HSN and the individual doctors who had an involvement with each specific patient's file.
In its description of “Health Sciences North and What They Knew” on their website, Gluckstein states, “In February 2018, a group of senior surgeons at Health Sciences North sent a letter to the hospital’s senior leadership regarding significant concerns regarding breast-specific imaging at Health Sciences North. The letter outlined substantial issues that were identified relating to the accuracy and overall quality of breast imaging reports. According to the doctors, they had problems with the substandard quality frequency and the lack of desire for improvements.”
The original 33-page statement of claim was filed on behalf of Shannon Hayes, a former Sudbury woman.
The original suit names the hospital and several doctors and radiologists as defendants. Hayes claimed that a proper diagnosis of her breast cancer was missed during her screening at HSN in 2018.
A year would go by before her breast cancer was diagnosed during a checkup performed at another hospital, in London, England, where she now lives. By then, the cancer had spread and Hayes is currently coping with metastatic cancer.
The $22-million claim originally alleged "systemic negligence of the radiology service" at HSN for such things as interpretation of breast imaging, mammography, breast ultrasound and MRI (magnetic resonance imaging) breast imaging.
None of the allegations have been proven in court.
The claim originally covered the period from Jan. 1, 2008 to Dec. 31, 2020.
In the original claim statement, several situations were described. During the time outlined in the lawsuit, HSN operated a breast screening and assessment service (BSAS) at the hospital, part of the Ontario Breast Screening Program, said the court document.
Also, during the time period, the claim alleged "there was an overwhelming, objective decline in the standards of practice in the performance and interpretation of Breast Imaging (sic)."
The claim alleged this significantly impacted the BSAS team’s ability to manage patients to an appropriate standard of care and the lawyers also alleged that radiology chief, Dr. Evan Roberts, knew of the substandard breast imaging but took no corrective action.
It also stated that medical chief of staff Dr. John Fenton was specifically told about the substandard breast imaging but failed to take any timely action.
Jenny Lamothe is a reporter with Sudbury.com. She covers the diverse communities of Sudbury, especially the vulnerable or marginalized, including the Black, Indigenous, newcomer and Francophone communities, as well as 2SLGBTQ+ and issues of the downtown core.
