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.
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.
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:
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.
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