Judge erred in denying class-action lawsuit against Horizon Health Network, lawyer argues

A lawyer representing women who believe they were improperly given a labour-inducing drug at the Moncton Hospital has argued that a judge erred by not allowing a class-action lawsuit to proceed.

John McKiggan told a panel of three judges on the Court of Appeal of New Brunswick on Thursday that there is an identifiable class of women who have a claim against former nurse Nicole Ruest, and the Horizon Health Network, and that it would be "impractical" to require them to pursue damages by filing their own individual lawsuits.

"We've been contacted by over 200 women who believe they have been part of this class," said McKiggan.

"So the solution is to file hundreds of malpractice claims and hundreds of expert statements? That is impractical. That makes no sense."

McKiggan's comments were made during a hearing for an appeal of an earlier decision by Court of King's Bench Chief Justice Tracey DeWare to not certify a lawsuit against Ruest and Horizon as a class action.

Jayde Scott is the representative plaintiff of the proposed class action and filed the lawsuit in 2019, alleging Ruest improperly gave her oxytocin while she was admitted to the Moncton Hospital's labour and delivery unit.

The hormone is commonly used to induce contractions in pregnant women, however, Scott claims Ruest administered it without her knowledge, leading to fetal distress and ultimately requiring her to undergo an emergency caesarian section.

Several other women have since come forward and filed affidavits alleging similar experiences while giving birth at the Moncton Hospital over the period Ruest was working in the labour and delivery unit, between 2010 and 2019.

Horizon fired Ruest immediately after the complaint, yet both of them have filed statements of defence denying any wrong-doing.

Last December, DeWare denied an application for the lawsuit to proceed as a class action, however, the Court of Appeal of New Brunswick granted Scott leave to appeal that decision.

None of the allegations have yet been tested in court.

Definition of class too broad, respondents say

Also in court Thursday were lawyers for Horizon and Ruest. Both argued the lawsuit should not proceed as a class because the definition of who would fit into it is too broad.

"I think [the class action] would be capturing a whole lot of people who have no hope of a potential claim against the respondents," said Andrea Pierce, a lawyer for Horizon.

While McKiggan believes there could be hundreds of potential class members, eight women have so far come forward to provide affidavits alleging traumatic experiences at the Moncton Hospital's labour and delivery unit when they were required to undergo emergency C-sections.

However, Andrew Faith, lawyer for Ruest, pointed out discrepancies in the details described in some of the affidavits, notably that for three of them, Ruest wasn't working on the day they gave birth.

"On this class definition, their experience could be vastly different," Faith said.

Faith said Scott might very well have a valid claim on her own, but, he added that a lack in similarity between the potential class members' experiences make a class-action lawsuit an inappropriate avenue.

Court of Appeal Justice Ernest Drapeau told the parties the court would reserve its decision until a later date.