by Written on behalf of Wise Health Law September 28, 2019 3 min read

Introduction

In a recent case, Rumsam v. Pakes, the plaintiff attempted to add a new defendant to a civil litigation action for medical malpractice ten years after the act complained of. The plaintiff was unsuccessful in this attempt. The fight was over discoverability and due diligence.

Basic Facts

The plaintiff/patient attended an urgent care facility for treatment following an injury to her wrist. Dr. P ordered an x-ray. His diagnosis was a “possible” hairline fracture of her scaphoid bone. The patient was discharged with the advice that she rest, use ice and do her best to immobilize and compress the wrist. The subsequent report of the radiologist suggested the possibility of the fracture again and recommended a follow-up x-ray. On the radiological report was some writing which read “dx scaphoid #” and “N/A”. The patient did not receive any follow-up. Her pain worsened and her family doctor referred her to an orthopedic surgeon who performed two surgeries. She felt the delay had resulted in further surgeries and care for an injury that would not have occurred but for the urgent care staff's failure to follow up with her.

Limitation Facts

The plaintiff was a minor at the time of her visit to the clinic in July of 2007. Within two years of attaining the age of majority, she sued Dr. P. and the clinic in 2012. The Statement of Defense alleged that the x-ray report had been reviewed by another physician at the clinic who had then attempted to call the plaintiff. The plaintiff in a responding factum (2013) had stated that a clinic physician other than Dr. P. had called her to advise her of the findings and the recommendation that she have a follow-up x-ray.

In 2016, Dr. P. advised by way of an undertaking that a Dr. K had written the note on the report but had not written the “N/A” comment. There was now no evidence that anyone from the clinic had called. The plaintiff moved (in 2017) to add Dr. K. as a defendant. This was almost ten years after the incident in question. The existing defendants resisted the attempt, arguing that the proposed claim was barred by the Limitations Act.

Due Diligence Issue

Section 5(b) of the Limitations Act provides that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence” based on the Ontario Court of Appeal decision in Lawless v. Anderson (2011).

The identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence based on Mark v. Guelph (City) (2010) and Zurba v. Lakeridge Health Corp.(2010). However, the law does not require a plaintiff to know the exact extent or type of harm suffered, or the precise cause of the injury based on Brown v. Wahl (2015). Nor is it necessary to determine which of several persons is responsible. It is enough that there is a possible claim against them based on Coutanche v. Napolean Delicatessen (2004).

The due diligence requirement is not satisfied by waiting for someone else to advise who the correct defendant is from Klein v. G4S Secure Solutions (Canada) Ltd. (2016).

In this case, on August 29, 2013, the plaintiff advised in writing that:

On July 12 <2007> (the following day), a clinic physician other than Dr. Pake placed a telephone call to Rachel’s home number to advise her about the x-ray findings and the radiologist’s recommendation for a follow-up x-ray.

As such, at least by that date, the plaintiff knew that:

  1. There was a second clinic physician involved in her care;
  2. The second clinic physician knew about her x-ray findings;
  3. That physician did not inform her of the x-ray findings and the recommendation to undergo a second x-ray and as a result;
  4. She required two surgeries and suffered damages.

The only thing the plaintiff did not know by August 29, 2013, was the name of the second clinic physician. The Court found that:

As of August 29, 2013, was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(b) of the Limitations Act that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence”

Given that the Court had found that the plaintiff had failed to exercise proper due diligence to secure the identity of the second physician, there was no reason to extend the two-year limitation period beyond August 29, 2015.



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