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Amendment to Plead Battery Denied in Cosmetic Surgery Case

The case of Piatkowski et al v. Drakos, 2020 ONSC 3928, addresses the test to amend a statement of claim to assert a new cause of action following the expiry of the limitation period.

In November 2013, the plaintiff underwent tummy tuck surgery. She alleged that she sustained full skin necrosis which caused unsightly permanent scarring. The plaintiff stated that, if she had been advised of the risk of skin necrosis, she never would have consented to the surgery.

In November 2015, the plaintiff sued the surgeon in negligence. Over six years after the surgery and over four years after the action was commenced, she sought to amend the statement of claim to plead battery and to seek punitive damages.

Justice Harper noted that the applicable test is whether the material facts that have already been pled sufficiently outline the cause of action now being advanced.

In medical negligence cases, the Supreme Court of Canada has stated that, unless there has been misrepresentation or fraud to secure consent to treatment, a failure to disclose risks, however serious, should go to negligence rather than to battery.

The plaintiff’s proposed amendments to the statement of claim included facts that transformed the allegations into an intentional misrepresentation that would amount to the tort of battery. Justice Harper stated that these new material facts created a new cause of action.

The plaintiff did not present any evidence to reasonably rebut the presumption of prejudice. No explanation was given for the significant delay.

Therefore, Justice Harper held that the claim for the tort of battery is statute-barred. The plaintiff was permitted to add the claim for punitive damages.

In conclusion, subject to discoverability, if a plaintiff wants to assert a new cause of action after the expiry of the presumptive limitation period, the material facts supporting the new cause of action must already be pled.