Horizon Health argues mothers' class-action lawsuit should not proceed

A hearing began Monday to determine if a class-action lawsuit can proceed on behalf of mothers who believe they were improperly given a labour-inducing drug by a Moncton nurse.

The certification hearing before a judge in Moncton is expected to continue until Thursday.

The proposed lawsuit alleges Nicole Ruest administered oxytocin to potentially "hundreds" of pregnant women at the Moncton Hospital without their consent.

Ruest and Horizon Health Network are named as defendants in the lawsuit, which was filed by the Halifax-based firm McKiggan Hebert and Fidelis of Moncton. 

A claim was filed on behalf of women who believe they received oxytocin between September 2010 and March 2019, as a result of Ruest's actions, and suffered harm as a result. That time frame is when Ruest worked in the labour and delivery unit, according to the health network's statement of defence.

The claim alleges Horizon and Ruest committed negligence, systemic negligence, vicarious liability, and breach of fiduciary duty in allowing for the improper administration of oxytocin.

Horizon fired Ruest in 2019, and the Crown opted not to pursue criminal charges against her following an investigation by RCMP.

Polley Faith LLP of Toronto is representing Ruest and has filed a defence statement denying the allegations.

An internal Horizon investigation revealed "strong evidence" the nurse administered oxytocin to two patients without consent, which caused the women to require an emergency caesarean section, also known as a C-section.

The health authority also noted in its filing that staff were concerned about an increasing number of emergency caesarean sections and were trying to determine the reason for it.

Oxytocin is a drug used in labour and delivery that causes the uterus to contract and speed up labour. It can be dangerous for babies because it can cut off oxygen to the fetus and affect fetal heart rate.

Seven women have provided affidavits alleging Ruest gave them the drug without their knowledge, resulting in harm, court heard.

The certification hearing is to determine if the lawsuit can meet the criteria to move forward as a class-action suit, rather than litigation on a case-by-case basis. It must prove a class-action lawsuit provides access to justice for plaintiffs, judicial economy and could result in behaviour modification. 

Jayde Scott is named as the representative plaintiff in the lawsuit. She is allegedly the last patient to be administered with oxytocin before Ruest was fired.

John McKiggan of McKiggan Hebert Lawyers, and Mathieu Picard and Virginia Gillmore of Fidelis Law are representing the women. 

McKiggan argued in court that allowing the proposed lawsuit to proceed would be the most efficient way to address the allegations of harm and damages brought forth by a significant number of mothers.

"It would avoid the necessity of having hundreds of individual losses, having to retain medical experts," he said.

McKiggan said the individual negligence is related to Ruest's alleged actions, while the systemic negligence claims the health authority lacked proper procedures to prevent improper use of oxytocin. 

The law firms have heard from more than 200 women so far who believe they were administered oxytocin, and experienced harm as a result, he said.

Lawyer Catherine Bowlen of the firm Cox & Palmer, representing Horizon, argued that any breach of standard of care cannot be determined on a class basis and that there is no evidence of negligence. Instead, she said, the allegations should be viewed as individual instances of malpractice.

"All these issues are individual and can only be looked at by examining the medical records of each potential class member," she said.

Bowlen said the allegations in the statement of claim do not indicate the hospital was aware of any alleged wrongdoing by Ruest, and there is no evidence a lack of policies at the health authority resulted in harm.

Bowlen disputed the definition of the class and said there are more than 10,000 women who gave birth at the Moncton Hospital during the time frame.

She said there is no objectivity if class members are defined based on belief, rather than evidence they were administered the drug.

"Anybody who gave birth, within that time frame, could come forward and say they were a member of the class," she said.

New Brunswick is an opt-out jurisdiction for class-action lawsuits, meaning everyone who meets the definition of the class is eligible for compensation, unless they take action to withdraw.

The certification hearing will continue on Tuesday.