Discoverability of Medical Malpractice Claims
In the context of a medical malpractice case, when is a claim discoverable by a plaintiff, so as to begin the running of the limitation period?
This issue was examined in the recent decision of Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII). In this case, the defendant brought a Summary Judgment Motion, seeking dismissal of the action on the basis of the plaintiffs’ failure to commence the action within the two year limitation period, pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch B (“Limitations Act”).
Facts
Between 2009 and 2013, the deceased, Linda Gordon, sought treatment from the defendant, Dr. Pattison. Ms. Gordon made reports of shortness of breath and chest pain throughout this period of time. A chest x-ray, identifying a right pleural effusion with associated atelectasis and/or consolidation, was not ordered until May 2013. Ms. Gordon was subsequently diagnosed with lung cancer on May 29, 2013.
Following this diagnosis, Ms. Gordon and her daughter, Amanda Andrews (a plaintiff in the action), met with the defendant to express their concern regarding the delay in ordering the x-ray. They requested a copy of Ms. Gordon’s medical chart, which was received in September or October of 2013.
Ms. Gordon’s son in law, Jeffrey Baker (also a plaintiff in the action), began contacting lawyers. Ms. Gordon’s medical chart was sent to a lawyer on November 6, 2013, and Mr. Baker met with the lawyer in early January 2014.
Ms. Gordon subsequently met with the lawyer herself on February 6, 2014, along with Mr. Baker.
According to the plaintiffs, before Ms. Gordon’s passing on April 18, 2014, she had expressed her desire for them to continue forward with this lawyer, to see if there may be a lawsuit against the defendant.
Standard of care and causation reports were obtained by the plaintiffs in August and December 2015.
The Statement of Claim was issued on April 11, 2016.
Discoverability of a Claim
By virtue of s.4 of the Limitations Act, the basic limitation period by which a claim must be commenced by is two years after a claim was discovered.
As per s.5 of the Limitations Act, a claim will be discovered on the earlier of:
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).[1]
The Decision
At the hearing of the Summary Judgment Motion, the question at issue was when did the plaintiffs discover their claim for medical negligence as against the defendant.
Ascertaining the date on which a claim is discoverable involves a fact-based inquiry.[2] A claim will have been discovered “once a prospective plaintiff knows enough facts upon which to ground an allegation of negligence against a person.”[3]
In the context of a medical malpractice case specifically, the Supreme Court of Canada has held “that expert medical evidence is not required for a trier of fact to make a finding on causation in medical malpractice cases since that issue is a question of fact.”[4]
Justice McCarthy recognized the findings of the Court of Appeal in Lawless v. Anderson,[5] in that a plaintiff may require advice from a medically trained individual in some medical malpractice cases.[6] Therein, the Court of Appeal referred to the decision of Patterson v. Anderson,[7] where the court held that the plaintiff did not know of her potential claim in negligence until she received the report from the College of Physician’s and Surgeons.[8]
However, Justice McCarthy distinguished the facts of Patterson from the within case for two reasons: 1) the standard of care and causation reports did not contain new facts, and 2) the plaintiffs received the deceased’s medical records in August or September 2013 and did not need any further medical records to discover the claim thereafter.[9]
Justice McCarthy ultimately found the claim to have been discoverable by the plaintiffs and the deceased as of May 30, 2013 [date of chest x-ray], or at the very least by February 6, 2014 [date of Ms. Gordon/Mr. Baker’s meeting with the lawyer].
In support of this decision, Justice McCarthy relied upon the following evidence:
- Ms. Gordon had been under the defendant’s care for years before to her cancer diagnosis;
- Complaints of chest pain and shortness of breath were communicated by Ms. Gordon during that time period;
- The chest x-ray was not ordered until May 2013;
- The x-ray and biopsy of May 2013 led to the cancer diagnosis;
- The plaintiffs and the Ms. Gordon were immediately upset that the x-ray had not been ordered previously;
- Ms. Gordon questioned if the outcome would have been different, had the x-ray been ordered earlier;
- The medical records were received in August or September 2013 and legal advice was sought almost immediately thereafter;
- Mr. Baker’s evidence was that legal advice was sought further to concerns over the defendant’s failure to order the x-ray earlier; and
- Up until her death in April 2014, Ms. Gordon shared her desire for the matter to be pursued with the chosen lawyer.[10]
In light of the above, Justice McCarthy held the claim was statute barred by virtue of the Limitations Act, and dismissed the action.
[1] Limitation Act 2002, S.O. 2002, c.24, Sch B, s.5
[2] Lawless v. Anderson, 2011 ONCA 102, paras 22-23
[3]Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 18; Dale v. Frank, 2017 ONCA 32, para 7, leave to appeal refused 2017 CarswellOnt 15891 (SCC)
[4] Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 20; Snell v. Farell, [1990] 2 S.C.R. 311 at pp 568-569
[5] Lawless v. Anderson, 2011 ONCA 102
[6] Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 24; Lawless v. Anderson, 2011 ONCA 102, para 24
[7] Patterson v. Anderson (2004), 72 O.R. (3d) 330 (S.C.)
[8] Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 24; Lawless v. Anderson, 2011 ONCA 102, paras 24-26; Patterson v. Anderson (2004), 72 O.R. (3d) 330 (S.C.), paras 24-26
[9] Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 25
[10] Andrews et. al v. Pattison, 2021 ONSC 4757 (CanLII), para 26