by Written on behalf of Wise Health Law February 21, 2020 3 min read

It is obviously critical that a plaintiff alleging negligent care in a malpractice lawsuit against health professionals has included all of the proper and necessary parties as defendants. The relevant names may not always be disclosed in the records and often must be discovered in the disclosure process. Once these identities are learned, however, the limitation period begins to run and any necessary parties should be added shortly thereafter.

A recent decision of the Ontario Court of Appeal had to examine whether the plaintiff should have been statute-barred from adding a new physician to a malpractice claim under the Limitations Act.

Two Doctors Involved in Patient's Care, But One is Unidentified

The plaintiff attended a community urgent care clinic to have her wrist injury attended to on July 11th, 2007. Dr. A assessed her wrist and ordered an x-ray. Dr. A advised the plaintiff that he suspected a possible hairline fracture of the scaphoid bone. She was then discharged and advised to immobilize the area, use ice and compress her wrist.

In the radiologist report that was received by the clinic on July 16th, 2007 it recommended that a follow-up x-ray be done to rule out or confirm the possible fracture. The report was reviewed by a physician but the plaintiff was never called to have the follow-up x-ray.

The pain worsened and the plaintiff was referred by her family doctor to an orthopedic surgeon who operated on her twice, once in April and then again in August of 2008.

The plaintiff became of age on June 4th, 2010. On May 3rd, 2012 she commenced an action against Dr. A and the clinic. The Statement of Defence filed on December 17th, 2012, suggested that the x-ray report had been reviewed by a doctor other than Dr. A who had then tried to call the plaintiff without an answer. On August 29th, 2013 the plaintiff filed a factum acknowledged this suggestion.

At Dr. A's examination, he gave an undertaking to determine, if possible, who wrote the note on the radiologists report suggesting a call had been made. On February 17th, 2016 (18 months later) the undertaking was answered advising that a Dr. B had reviewed the report. On November 15th, 2016 an ongoing disclosure duty caused the defence to advise the plaintiff that despite Dr. A’s earlier evidence at discovery, there appeared to be no evidence that anyone had attempted to call the plaintiff. The plaintiff then moved in January of 2018 to add Dr. B as a defendant.

Motions Judge Allows the Addition of the Second Doctor

The motion to add was successful at first instance on the basis that the original Statement of Defence was not sufficient to alert the plaintiff to the fact that a second doctor was involved. The defence appealed to the Ontario Court of Appeal (ONCA) suggesting that the motions judge had erred as follows:

  1. In failing to apply the correct test for discoverability under the Limitations Act as the plaintiff here ought to have known knowledge of the material facts more than two years before her motion;
  2. In his application of the principle in Sloan v. Ultramar Ltd. which required a plaintiff to exercise reasonable diligence to discover a claim after being advised of a triggering event.

Plaintiff's Factum Acknowledged Unidentified Second Physician

The defendant’s appeal was successful. The limitation period with respect to the action itself did not run until the plaintiff was of age on June 18th, 2010 and presumptively expired two years later subject to a discoverability argument.

With respect to the addition of Dr. B as a defendant, the plaintiff herself had filed a factum on August 29th, 2013 in which she acknowledged the existence of a second doctor involved in her care. The factum made reference to the fact that the clinic had advised that this second doctor had reviewed her first x-ray and that no call had been made to her advising of the recommendation for a further x-ray. The only information she did not have was the name of the doctor.

This was the triggering event under section 5(1)(b) of the Act,and which then required the plaintiff (via her counsel) to exercise reasonable diligence to secure the name of the second doctor. No such steps were taken until the examination of Dr. A in August of 2014 and then no further steps until the undertaking was answered some eighteen (18) months later. The action against Dr. B was, therefore, statute-barred.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.



Also in Blog

Health Care Professionals in Ontario Begin the Restart

by Valerie Wise May 28, 2020 3 min read

The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province. 

Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.

The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.

International Medical Graduates Reinforcing the Healthcare Frontlines

by Mina Karabit May 25, 2020 2 min read

In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.

Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.  

Pharmacists’ Time-Limited Change in Scope of Practice During COVID-19

by Mina Karabit May 05, 2020 4 min read

Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.

On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).