Class actions in medical malpractice are uncommon. The reason is structural: each plaintiff’s claim typically requires individual proof of standard of care, breach, causation, and damages. Where each potential class member has a distinct medical story, class certification will generally fail at the “common issues” stage of the analysis or at the “preferable procedure” stage. Scott v Regional Health Authority B (dba Horizon Health) and Nicole Ruest, 2023 NBKB 209, is a clear illustration of this difficulty in a high-profile factual context.
The case is doctrinally significant in three respects. It applies the five-criteria certification framework to a contested medical fact pattern. It illustrates the limits of class actions in malpractice cases where individual issues predominate. And it is the natural pair with Massie v PHSA, the BC class action I rewrote earlier where certification was granted against an imposter nurse. The two cases together capture the central doctrinal question on medical malpractice class certification: whether the breach is uniform across the class or requires individual proof for each class member.
The substantive facts
On March 27, 2019, the proposed representative plaintiff, Jayde Scott, was admitted to the labour and delivery unit of the Moncton Hospital in New Brunswick in preparation for the delivery of twins. Her obstetrician had planned to induce labour. Following arrival, she was attended by the defendant registered nurse, Nicole Ruest, who started an IV.
Soon after the IV was running, Ms. Scott began to experience strong and prolonged contractions. The babies went into fetal distress. An emergency Cesarean section was performed.
Given concerns about the rapid onset of contractions, the IV bag was tested. The bag was found to contain oxytocin that had not been prescribed to the patient by her physician. Nurse Ruest was reportedly dismissed from the hospital the same day.
The proposed class action arose from this fact pattern. The plaintiff alleged that the unprescribed administration of oxytocin had caused her emergency C-section and similar emergency deliveries in other patients. The court received affidavit evidence from eight other obstetrical patients who alleged similar experiences and who indicated that their obstetricians had told them their emergency C-sections or emergency deliveries were likely caused by an oxytocin overdose.
The clinical context: oxytocin in labour
Oxytocin is a synthetic version of the naturally occurring hormone that stimulates uterine contractions. It is widely used in obstetrics for two purposes: induction of labour (starting contractions in a patient who is not yet in active labour) and augmentation of labour (strengthening contractions that have already begun). It is administered intravenously, typically at a low starting dose with incremental increases under careful monitoring.
The medication is dose-dependent and potent. Excessive oxytocin produces tachysystole (uterine contractions that are too frequent or too prolonged), which in turn can produce fetal heart rate decelerations, fetal distress, and the need for emergency intervention by Cesarean section or instrumental delivery. In rare and extreme cases, excessive oxytocin can rupture the uterus.
Because of the medication’s potency, oxytocin is administered only on a physician’s order, with a specified dose and titration plan, and under continuous electronic fetal monitoring. The medication is not a treatment a nurse can independently choose to give. The unauthorized administration of oxytocin to a labouring patient is, by definition, outside the scope of nursing practice and outside the medication framework that governs obstetric care.
The class certification framework
Under New Brunswick’s Class Proceedings Act (and the substantially similar legislation in other Canadian common-law jurisdictions), a proposed class action must satisfy five criteria for certification:
- There is an identifiable class of two or more persons
- The pleadings disclose a cause of action
- The claims raise common issues of fact or law
- A class action is the preferable procedure for the just and efficient resolution of the common issues
- There is an adequate representative plaintiff
The criteria operate as gateways. A proposed class action that fails any of the five does not get certified. The criteria are evaluated on the basis of the pleadings, supporting affidavits, and evidence filed for the certification motion. They are not adjudicated finally; the question at certification is whether the case is suitable for class treatment, not whether the claims will ultimately succeed.
In Scott, the court held that two of the criteria were satisfied (cause of action pled; appropriate representative plaintiff) but the others were not.
The court’s analysis
The court concluded that the proposed class action could not be certified for two related reasons.
Common issues did not predominate. The court was unable to identify common issues of fact or law that would best be resolved through a class proceeding. The determination of whether each potential class member had actually received illicit oxytocin would require individual evidence specific to that patient’s labour. The determination of whether the oxytocin (if received) caused the emergency delivery (vs other clinical factors such as fetal position, maternal anatomy, or pre-existing complications) would require individual expert evidence. Class membership itself could not be determined without an individualized factual inquiry.
No appropriate litigation plan. The court was unable to conceive of a litigation plan that would allow a class proceeding to manage these claims efficiently. The certification of the action as a class proceeding would, on the court’s analysis, simply result in a series of individual actions caught under the umbrella of a class action. The class proceeding mechanism is designed to provide efficiencies in cases with shared issues; where individual trials would be required regardless, the mechanism produces no real benefit.
The motion was denied.
The doctrinal lessons
The case stands for several propositions.
Class certification in medical malpractice requires uniform breach. The most important doctrinal feature of medical malpractice class actions is whether the alleged breach is the same across the class. Where every patient encountered the same defect in the system (an imposter nurse, a defective medical device, a systemic policy failure), the breach can be common. Where each patient encountered a distinct clinical decision that needs individual analysis, the breach is not common and class treatment is not available.
Individual causation is generally fatal to certification. Even where breach can be shown as a common issue, causation in medical malpractice is almost always individual. Each patient has unique anatomy, history, presentation, and trajectory. Whether a given act or omission caused a given outcome depends on the patient-specific medical analysis. Where causation requires individual analysis, the class proceeding cannot deliver the efficiencies the procedure is designed to provide.
The “preferable procedure” criterion has teeth. Even where some common issues are present, the court must conclude that a class proceeding is preferable to individual actions. Where the class proceeding would not produce meaningful efficiencies (because individual trials would still be required), the preferable procedure criterion fails.
The denial of certification is not the end of the road. A denial at certification does not extinguish the individual claims. Ms. Scott can still pursue an individual action against the hospital and Nurse Ruest, as can the other affected patients. The class proceeding mechanism is a procedural option; its denial means that the claims proceed individually rather than collectively. For very serious individual claims with significant damages, this may still be a viable path.
Compare Massie v PHSA
The result in Scott should be read alongside Massie v PHSA, the BC class action where certification was granted against an imposter nurse who had practised for years without any nursing qualifications.
Massie: certified. The imposter nurse had no qualifications. Every patient she “treated” was treated by an unqualified person. The breach was uniform across the proposed class; the only individual question was damages (which the court can manage in class proceedings through individual damages trials).
Scott: denied. The defendant nurse was a qualified registered nurse. The alleged breach was the unauthorized administration of oxytocin to specific patients. Each patient required individual proof of (a) whether they actually received illicit oxytocin and (b) whether the oxytocin caused their specific emergency outcome. The breach was not uniform.
The doctrinal point is that the same general category of allegation (a nurse acting outside the scope of authorized practice) can produce opposite certification results depending on the structure of the breach. Where the deficiency is universal (no qualifications at all), the breach is common. Where the deficiency is patient-specific (this patient received unprescribed medication; this patient did not), the breach requires individual proof.
The Ontario analogue
The framework applied in Scott is substantially similar to Ontario’s Class Proceedings Act, 1992, which sets out the same five criteria for certification. In 2020, Ontario amended the legislation to strengthen the preferable procedure requirement. The Ontario test now requires that a class proceeding be “superior to” rather than merely “preferable to” other reasonably available means of resolving the common issues. The 2020 amendments have made certification in medical malpractice cases even more difficult, because individual issues typically predominate.
In Ontario, a class action with facts similar to Scott would likely face an even higher bar than the one applied in New Brunswick. The doctrinal lessons from Scott therefore apply with at least equal force to Ontario class proceedings.
The broader Ruest matter
The unauthorized oxytocin administration at the Moncton Hospital has been the subject of substantial public attention beyond this class certification motion. The civil class action proceeded independently of any other proceedings; the certification motion was a discrete procedural step. For prospective clients with allegations arising from the same hospital and the same time period, the denial of certification means that any claim would have to be advanced individually.
The civil remedies available to affected patients are not limited to a class proceeding. Individual malpractice claims, hospital patient relations processes, complaints to the College of Nurses of New Brunswick, and (in Ontario, for analogous cases) the College of Nurses of Ontario all operate independently of the class procedure. See A Patient’s Guide to Making Complaints About Health Care in Ontario for the equivalent Ontario landscape.
The class action sub-grouping
Scott v RHA is the second class action case in the rewritten case-comment library, sitting alongside Massie v PHSA. The two cases together provide a doctrinal pair illustrating the central question on medical malpractice class certification.
For prospective counsel considering whether a particular fact pattern is suitable for class treatment, the comparison is useful. The threshold question is whether the alleged breach is uniform across the proposed class. Where it is (as in Massie), certification is realistically available. Where it is not (as in Scott), certification is unlikely regardless of how many affected patients are identified.
The cross-province sub-cluster
Scott is also the first New Brunswick case in the rewritten cross-province sub-cluster, which now spans five provinces:
Five provinces, nine cases. The cross-province material provides genuine national coverage of the doctrinal frameworks that operate in Canadian medical malpractice litigation. The frameworks are substantively similar across the country, with provincial variations in procedural specifics that the case comments identify where relevant.
Why this case matters
For prospective clients. The denial of class certification does not mean that the underlying allegations are without merit. Ms. Scott and the other affected patients retain the right to bring individual claims. The class proceeding mechanism is a procedural option; its absence simply means that claims proceed one at a time rather than collectively. For prospective clients with claims arising from any high-profile medical event involving multiple patients, the realistic procedural framework is generally individual litigation, not a class action.
For the bar. Scott is useful precedent on the limits of class certification in medical malpractice. The case applies the standard five-criteria framework to a contested medical fact pattern and produces a clear result: where individual issues predominate, class certification is not available. This is consistent with the general Canadian trend on medical malpractice class actions, which have always faced structural difficulties at the common issues and preferable procedure stages.
For class counsel. The pairing with Massie v PHSA is instructive. Class actions in medical malpractice are not impossible, but they require structural features that make breach uniform across the class. The most viable medical malpractice class action fact patterns involve systemic or universal defects (an imposter practitioner, a defective device, a flawed institutional policy) rather than patient-specific clinical decisions.
For more on hospital negligence litigation in Ontario, see Hospital Negligence Lawyer in Ontario. For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: November 29, 2023
Jurisdiction: Court of King’s Bench of New Brunswick
Citation: Jayde Scott v Regional Health Authority B (dba Horizon Health) and Nicole Ruest, 2023 NBKB 209 (CanLII)
Media coverage: Judge denies motion to certify class action against fired Moncton nurse — CBC News
Scott v RHA: A Class Action Denied on Common Issues
A proposed class action against the Moncton Hospital and a fired nurse over allegedly unprescribed oxytocin was denied certification because individual issues would predominate.
Class actions in medical malpractice are uncommon. The reason is structural: each plaintiff’s claim typically requires individual proof of standard of care, breach, causation, and damages. Where each potential class member has a distinct medical story, class certification will generally fail at the “common issues” stage of the analysis or at the “preferable procedure” stage. Scott v Regional Health Authority B (dba Horizon Health) and Nicole Ruest, 2023 NBKB 209, is a clear illustration of this difficulty in a high-profile factual context.
The case is doctrinally significant in three respects. It applies the five-criteria certification framework to a contested medical fact pattern. It illustrates the limits of class actions in malpractice cases where individual issues predominate. And it is the natural pair with Massie v PHSA, the BC class action I rewrote earlier where certification was granted against an imposter nurse. The two cases together capture the central doctrinal question on medical malpractice class certification: whether the breach is uniform across the class or requires individual proof for each class member.
The substantive facts
On March 27, 2019, the proposed representative plaintiff, Jayde Scott, was admitted to the labour and delivery unit of the Moncton Hospital in New Brunswick in preparation for the delivery of twins. Her obstetrician had planned to induce labour. Following arrival, she was attended by the defendant registered nurse, Nicole Ruest, who started an IV.
Soon after the IV was running, Ms. Scott began to experience strong and prolonged contractions. The babies went into fetal distress. An emergency Cesarean section was performed.
Given concerns about the rapid onset of contractions, the IV bag was tested. The bag was found to contain oxytocin that had not been prescribed to the patient by her physician. Nurse Ruest was reportedly dismissed from the hospital the same day.
The proposed class action arose from this fact pattern. The plaintiff alleged that the unprescribed administration of oxytocin had caused her emergency C-section and similar emergency deliveries in other patients. The court received affidavit evidence from eight other obstetrical patients who alleged similar experiences and who indicated that their obstetricians had told them their emergency C-sections or emergency deliveries were likely caused by an oxytocin overdose.
The clinical context: oxytocin in labour
Oxytocin is a synthetic version of the naturally occurring hormone that stimulates uterine contractions. It is widely used in obstetrics for two purposes: induction of labour (starting contractions in a patient who is not yet in active labour) and augmentation of labour (strengthening contractions that have already begun). It is administered intravenously, typically at a low starting dose with incremental increases under careful monitoring.
The medication is dose-dependent and potent. Excessive oxytocin produces tachysystole (uterine contractions that are too frequent or too prolonged), which in turn can produce fetal heart rate decelerations, fetal distress, and the need for emergency intervention by Cesarean section or instrumental delivery. In rare and extreme cases, excessive oxytocin can rupture the uterus.
Because of the medication’s potency, oxytocin is administered only on a physician’s order, with a specified dose and titration plan, and under continuous electronic fetal monitoring. The medication is not a treatment a nurse can independently choose to give. The unauthorized administration of oxytocin to a labouring patient is, by definition, outside the scope of nursing practice and outside the medication framework that governs obstetric care.
The class certification framework
Under New Brunswick’s Class Proceedings Act (and the substantially similar legislation in other Canadian common-law jurisdictions), a proposed class action must satisfy five criteria for certification:
The criteria operate as gateways. A proposed class action that fails any of the five does not get certified. The criteria are evaluated on the basis of the pleadings, supporting affidavits, and evidence filed for the certification motion. They are not adjudicated finally; the question at certification is whether the case is suitable for class treatment, not whether the claims will ultimately succeed.
In Scott, the court held that two of the criteria were satisfied (cause of action pled; appropriate representative plaintiff) but the others were not.
The court’s analysis
The court concluded that the proposed class action could not be certified for two related reasons.
Common issues did not predominate. The court was unable to identify common issues of fact or law that would best be resolved through a class proceeding. The determination of whether each potential class member had actually received illicit oxytocin would require individual evidence specific to that patient’s labour. The determination of whether the oxytocin (if received) caused the emergency delivery (vs other clinical factors such as fetal position, maternal anatomy, or pre-existing complications) would require individual expert evidence. Class membership itself could not be determined without an individualized factual inquiry.
No appropriate litigation plan. The court was unable to conceive of a litigation plan that would allow a class proceeding to manage these claims efficiently. The certification of the action as a class proceeding would, on the court’s analysis, simply result in a series of individual actions caught under the umbrella of a class action. The class proceeding mechanism is designed to provide efficiencies in cases with shared issues; where individual trials would be required regardless, the mechanism produces no real benefit.
The motion was denied.
The doctrinal lessons
The case stands for several propositions.
Class certification in medical malpractice requires uniform breach. The most important doctrinal feature of medical malpractice class actions is whether the alleged breach is the same across the class. Where every patient encountered the same defect in the system (an imposter nurse, a defective medical device, a systemic policy failure), the breach can be common. Where each patient encountered a distinct clinical decision that needs individual analysis, the breach is not common and class treatment is not available.
Individual causation is generally fatal to certification. Even where breach can be shown as a common issue, causation in medical malpractice is almost always individual. Each patient has unique anatomy, history, presentation, and trajectory. Whether a given act or omission caused a given outcome depends on the patient-specific medical analysis. Where causation requires individual analysis, the class proceeding cannot deliver the efficiencies the procedure is designed to provide.
The “preferable procedure” criterion has teeth. Even where some common issues are present, the court must conclude that a class proceeding is preferable to individual actions. Where the class proceeding would not produce meaningful efficiencies (because individual trials would still be required), the preferable procedure criterion fails.
The denial of certification is not the end of the road. A denial at certification does not extinguish the individual claims. Ms. Scott can still pursue an individual action against the hospital and Nurse Ruest, as can the other affected patients. The class proceeding mechanism is a procedural option; its denial means that the claims proceed individually rather than collectively. For very serious individual claims with significant damages, this may still be a viable path.
Compare Massie v PHSA
The result in Scott should be read alongside Massie v PHSA, the BC class action where certification was granted against an imposter nurse who had practised for years without any nursing qualifications.
Massie: certified. The imposter nurse had no qualifications. Every patient she “treated” was treated by an unqualified person. The breach was uniform across the proposed class; the only individual question was damages (which the court can manage in class proceedings through individual damages trials).
Scott: denied. The defendant nurse was a qualified registered nurse. The alleged breach was the unauthorized administration of oxytocin to specific patients. Each patient required individual proof of (a) whether they actually received illicit oxytocin and (b) whether the oxytocin caused their specific emergency outcome. The breach was not uniform.
The doctrinal point is that the same general category of allegation (a nurse acting outside the scope of authorized practice) can produce opposite certification results depending on the structure of the breach. Where the deficiency is universal (no qualifications at all), the breach is common. Where the deficiency is patient-specific (this patient received unprescribed medication; this patient did not), the breach requires individual proof.
The Ontario analogue
The framework applied in Scott is substantially similar to Ontario’s Class Proceedings Act, 1992, which sets out the same five criteria for certification. In 2020, Ontario amended the legislation to strengthen the preferable procedure requirement. The Ontario test now requires that a class proceeding be “superior to” rather than merely “preferable to” other reasonably available means of resolving the common issues. The 2020 amendments have made certification in medical malpractice cases even more difficult, because individual issues typically predominate.
In Ontario, a class action with facts similar to Scott would likely face an even higher bar than the one applied in New Brunswick. The doctrinal lessons from Scott therefore apply with at least equal force to Ontario class proceedings.
The broader Ruest matter
The unauthorized oxytocin administration at the Moncton Hospital has been the subject of substantial public attention beyond this class certification motion. The civil class action proceeded independently of any other proceedings; the certification motion was a discrete procedural step. For prospective clients with allegations arising from the same hospital and the same time period, the denial of certification means that any claim would have to be advanced individually.
The civil remedies available to affected patients are not limited to a class proceeding. Individual malpractice claims, hospital patient relations processes, complaints to the College of Nurses of New Brunswick, and (in Ontario, for analogous cases) the College of Nurses of Ontario all operate independently of the class procedure. See A Patient’s Guide to Making Complaints About Health Care in Ontario for the equivalent Ontario landscape.
The class action sub-grouping
Scott v RHA is the second class action case in the rewritten case-comment library, sitting alongside Massie v PHSA. The two cases together provide a doctrinal pair illustrating the central question on medical malpractice class certification.
For prospective counsel considering whether a particular fact pattern is suitable for class treatment, the comparison is useful. The threshold question is whether the alleged breach is uniform across the proposed class. Where it is (as in Massie), certification is realistically available. Where it is not (as in Scott), certification is unlikely regardless of how many affected patients are identified.
The cross-province sub-cluster
Scott is also the first New Brunswick case in the rewritten cross-province sub-cluster, which now spans five provinces:
Five provinces, nine cases. The cross-province material provides genuine national coverage of the doctrinal frameworks that operate in Canadian medical malpractice litigation. The frameworks are substantively similar across the country, with provincial variations in procedural specifics that the case comments identify where relevant.
Why this case matters
For prospective clients. The denial of class certification does not mean that the underlying allegations are without merit. Ms. Scott and the other affected patients retain the right to bring individual claims. The class proceeding mechanism is a procedural option; its absence simply means that claims proceed one at a time rather than collectively. For prospective clients with claims arising from any high-profile medical event involving multiple patients, the realistic procedural framework is generally individual litigation, not a class action.
For the bar. Scott is useful precedent on the limits of class certification in medical malpractice. The case applies the standard five-criteria framework to a contested medical fact pattern and produces a clear result: where individual issues predominate, class certification is not available. This is consistent with the general Canadian trend on medical malpractice class actions, which have always faced structural difficulties at the common issues and preferable procedure stages.
For class counsel. The pairing with Massie v PHSA is instructive. Class actions in medical malpractice are not impossible, but they require structural features that make breach uniform across the class. The most viable medical malpractice class action fact patterns involve systemic or universal defects (an imposter practitioner, a defective device, a flawed institutional policy) rather than patient-specific clinical decisions.
For more on hospital negligence litigation in Ontario, see Hospital Negligence Lawyer in Ontario. For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: November 29, 2023
Jurisdiction: Court of King’s Bench of New Brunswick
Citation: Jayde Scott v Regional Health Authority B (dba Horizon Health) and Nicole Ruest, 2023 NBKB 209 (CanLII)
Media coverage: Judge denies motion to certify class action against fired Moncton nurse — CBC News
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
KY v Bahler: A Failed Referral and a Preventable Birth Injury
A family physician identified a high-risk twin pregnancy and started a referral letter that was never sent. The Alberta Court of King’s Bench found liability.
Ibrahimova v Cavanagh: In-Home Recordings, Privacy, and the Limits of Defence Discovery
Ontario court denies defendant doctors’ motion for in-home security camera recordings in catastrophic injury malpractice action. Privacy prevails over relevance.
Levac v James: Statistical Causation in an Infection Outbreak Class Action
The Court of Appeal upholds the use of epidemiological evidence to infer causation across a class of patients harmed by a physician’s IPAC failures.