Judge denies motion to certify class action against fired Moncton nurse

A New Brunswick judge has denied a motion to certify a class action by eight women alleging a Moncton nurse inappropriately administered a drug that resulted in some of them requiring emergency caesarian sections.

In her Nov. 29 decision, Court of King's Bench Chief Justice Tracey DeWare said she doesn't think a class-action lawsuit would be appropriate for litigating the claim against Nicole Ruest and her former employer, Horizon Health Network.

"In reviewing the common issues and the evidentiary record, I am unable to conclude that there is an identifiable class from which common issues arise that will best be resolved through the mechanism of a class proceeding," said DeWare, in her decision.

"I am equally unable to conceive of an appropriate litigation plan that would allow a class proceeding to be truly the most efficient way to manage these potential claims of medical malpractice and negligence."

Allegations not proven in court

Representative plaintiff Jayde Scott said she was admitted to the Moncton Hospital on March 27, 2019, in preparation for the delivery of twins.

She alleges Ruest inserted an intravenous line and, shortly after, she experienced strong and prolonged contractions, which caused the twins to go into fetal distress, ultimately resulting in her undergoing an emergency C-section over concern for their well-being.

The allegations have not been proven in court. Crown prosecutors determined there wasn't enough evidence to proceed with criminal charges after an RCMP investigation.

Scott said her obstetrician told her the next day that she found her IV bag had contained oxytocin and that Ruest had been fired from her job.

Oxytocin is a labour-inducing drug. It can be dangerous for the health of the fetus as it can affect fetal heart rate and cut off oxygen supply.

Affidavits from seven other women describe similar experiences surrounding the births of their children, with their obstetricians informing them that oxytocin was the likely cause of them needing emergency deliveries or emergency C-sections.

"The mothers recount the stress of these emergency births followed by the trauma of recovering from the event both for themselves and their babies," states DeWare, referring to the contents of their affidavits.

Each case requires detailed examination, docs say

In her decision, DeWare leaned on reports by experts used by both the plaintiff and the defendants in the case.

DeWare said the plaintiff brought forward evidence from Dr. John F. R. Barrett, who did not have the medical records available to him from the potential class members at the time of his report, and thus only provided general information as to what would need to be determined if a mother had been exposed to an inappropriate use of oxytocin.

"This will require a detailed examination of the records of each birth in which this was suspected by an obstetric expert, who in my opinion would be able to opine on the balance of probability whether inappropriate oxytocin had occurred," Barrett said in his report.

As for Horizon, the health authority retained the services of Dr. Nicholas Brathwaite, who in his report said he was advised two bags of IV fluid tested positive for unordered or illicit oxytocin.

However, Brathwaite goes on to state that "to even attempt a determination of whether a patient likely received unordered (illicit) oxytocin would require a comprehensive review of the individual charts involved."

Another doctor retained as an expert by Ruest had a similar opinion.

"It would appear unavoidable that the determination of the likelihood that each potential class member received an illicit dosage of oxytocin, and that this caused the emergency delivery, will require individual trials with expert evidence unique to each claimant," said DeWare, in the conclusion to her decision.

"In this case, there is a mechanism available to patients of the Moncton Hospital and that is individual actions.

"While individual actions do not provide the insulation of a class proceeding in terms of expenses, they remain viable alternatives."

Plaintiff appealing decision

Members of the proposed class aren't prepared to accept DeWare's decision, said John McKiggan, co-lead counsel for Scott and other class members.

"The class members were disappointed in the decision," McKiggan said, Friday.

He said he filed a motion for leave to appeal the decision on Thursday, with submissions on that motion scheduled to be heard by a New Brunswick Court of Appeal judge on Jan. 19, 2024.

McKiggan said if that judge allows the appeal to proceed, a full panel hearing will be scheduled for a later date.

McKiggan said the eight women who submitted affidavits are a small sampling of the potential class, adding he's been contacted by "hundreds" of women who believe they were inappropriately given oxytocin."

He said he thinks that contrary to what DeWare decided, a class proceeding would be the most practical way to test the claims by his clients.

"From a practical point of view, medical malpractice litigation is among the most expensive, complicated, difficult and time-consuming of all personal injury claims," he said.

"So we believe it is impractical for the hundreds of women who have contacted us to be expected to file individual claims, where they will all have to file expert evidence about ... whether there was negligence and whether that negligence could have caused harm to them."