Class action proceeds against PHSA over 1-year employment of fake nurse in B.C.

A class action lawsuit has been certified against the Provincial Health Services Authority on behalf of some 1,150 patients who interacted with an unlicensed nurse who worked at B.C. Women’s Hospital for more than a year.

The B.C. Supreme Court determined Tuesday that legal claims against the health authority over its employment of Brigitte Cleroux should proceed as a class action.

Through the class action, hundred of patients who received gynecological surgical procedures at BCWH between June 2020 and June 2021—when Cleroux was employed—will be able to seek justice collectively in a single lawsuit.

The alternative would be a David and Goliath situation, according to a lawyer representing the plaintiff who filed the class action.

“As the court noted in this decision, the chances of any one individual woman issuing her own lawsuit against the hospital is very slim because it’s not practical to do so,” said John Cameron of Murphy Batista LLP. “But if they could all work together—then there’s a chance that all of them could get access to justice.”

Cleroux was directly involved in the care of 899 patients and indirectly involved in the treatment of another 258 individuals, according to patient disclosure notices the PHSA provided to the court.

According to the decision, Cleroux posed as a woman named Melanie Smith to gain employment at BCWH. There, she worked in pre-screening for “procedural sedation, pre-operative assessments, administering procedural sedation, and post operative care,” according to the PHSA, which said she would have also been assigned as a float nurse to cover for her colleagues.

It’s alleged that Cleroux was hired while posing as a real nurse who was on maternity leave, despite having no identification other than a cheque that had been altered with Wite-Out and a pen.

While the court held that issues of breach of privacy and vicarious liability should be pursued through a class action, Justice Michael Stephens did not agree the legal process was appropriate when it comes to claims against the PHSA in negligence and for battery.

“The necessity of proving causation of damage and compensable harm will likely be particular to each proposed class member, requiring individual trials on a major aspect of such claims, which detracts from the commonality of significant issues associated with such claims,” wrote Stephens.

However, the judge ruled that all 1,150 patients could advance three key questions as a single entity in one court trial, and the answers will be binding for all parties involved.

One question is whether Cleroux breached patients’ privacy, while another is whether the hospital should be held vicariously liable for her actions because they hired her. Finally, the judge must determine whether punitive damages are appropriate under the circumstances.

“Perhaps the hospital was so reckless in allowing her to work there—hiring her, ignoring complaints—that it should have never happened,” explained Cameron.

He says he’s hopeful and optimistic that all of those questions will be answered in the affirmative.

“That would be a great victory for these women,” said Cameron, adding many of the members of the class action will just be learning about the legal course of action.

Following the certification of the lawsuit, a notice will be sent out to all members involve to inform them what’s happened, what’s on the horizon and what they’re options are. Some may choose to opt out.

“That process, as you can imagine, is going to be one of people coming to terms with themselves and learning about it,” said Cameron. “A lot of women didn’t really know there could be any possibility of justice—the whole thing was so new and confusing to them. They all received a letter saying ‘This person was involved in your care’ and they didn’t think anything would happen of it.”

Anyone who believes they are included in this action is encouraged to reach out to Murphy Battista LLP or Slater Vecchio LLP about their experience.

“We believe it’s serious what happened to those women and we are very keen to assist them and advance their own individual actions,” said Cameron.

In an email to CTV News, the PHSA says it won’t be commenting as the matter is now before the courts.

WHERE IS CLEROUX NOW?

The convicted imposter is currently serving a seven-year prison sentence in Ontario for posing as a nurse at two Ottawa clinics in 2021.

Back in B.C., Cleroux is facing several charges, including assault and assault with a weapon stemming from her time at B.C. Women’s Hospital.

She’s also charged with fraud. The charges have yet to be tested in court.