In a recent decision, the Court of Appeal for Ontario held that in a negligence claim against a surgeon, the limitation period begins to run when the patient becomes aware of all of the material facts on which the claim is based.  It is not necessary for the patient to have obtained a medical opinion stating that her treatment fell below acceptable medical standards, as the claim will be considered to have been “discovered” once the facts upon which it is based are known to the patient.

Lillian Lawless sought breast augmentation surgery at the La Fontaine-Rish Mlitedical Group Clinic.  Dr. Anderson performed the surgery on July 3, 2003.  On a follow-up visit, Ms. Lawless expressed concern regarding the appearance of her breasts, and was told by clinic staff that she would need another operation to correct the first one.  At that point, she decided to seek a second opinion.

Ms. Lawless met with Dr. Weinberg, a plastic surgeon, on November 20, 2003.  He told her that she had been “disfigured”, and that her breasts were “deformed”.  He also identified three specific problems with the way in which Dr. Anderson had performed the surgery.

Dr. Weinberg told Ms. Lawless that she would need corrective surgery.  He advised her to contact a lawyer and to make a complaint to the College of Physicians and Surgeons.

Ms. Lawless met with a lawyer early in December of 2003.  He took a cautious approach, advising Ms. Lawless that in order to decide whether or not a lawsuit was warranted, he would need a complete copy of her medical charts, as well as an opinion from a qualified plastic surgeon as to whether or not Dr. Anderson had breached the standard of care.

The prospective defendants resisted the lawyer’s efforts to obtain Ms. Lawless’s charts, which were not produced until the lawyer obtained a court order in May of 2004.  The lawyer then tried to obtain an expert medical opinion, but there was further delay when Dr. Weinberg declined to provide a formal written report.

Ms. Lawless’s lawyer eventually obtained a written report from another surgeon in June of 2005.  As this report stated that Dr. Anderson had fallen below the standard of care, a Statement of Claim was issued on June 24, 2005.

At the time the operation was performed, the applicable legislation provided for a one-year limitation period in an action against a physician.  New limitations legislation which became effective in Ontario on January 1, 2004 provided a two year limitation period.  Under the transition provisions of the new legislation, the former limitation period would apply if the claim was discovered before January 1, 2004.  If that was the case, the parties agreed that Ms. Lawless’s action was statute barred.

If the claim was first discovered January 1, 2004 or later, however, the new two year limitation period would apply, and the claim would be in time.

The judge hearing the motion sided with Dr. Anderson.  Ms. Lawless appealed.  The Court of Appeal dismissed the appeal, citing discoverability principles.

Determining whether or not a cause of action has been discovered is a fact-based process: “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.”  The claim is discovered and the limitation period begins to run when the prospective plaintiff knows enough facts on which to base a claim of negligence against the prospective defendant.

According to the Court of Appeal, the plaintiff became aware of all of the material facts on which her claim was based during her November 20, 2003 meeting with Dr. Weinberg.  On the facts of this case, discoverability did not require an expert medical opinion as to whether or not Dr. Anderson had met the applicable standard of care.

There are other medical malpractice cases in which courts have held that in order to discover that she has a claim, a plaintiff may need advice from someone with medical training.  Similarly, a plaintiff will often require access to his full medical record in order to learn of the facts that support the claim.

The Court of Appeal explained that in these cases the material facts first became available to the prospective plaintiff when the medical charts were disclosed or when a medical opinion was provided.

In the instant case, however, the unsatisfactory appearance of the plaintiff’s breasts following the surgery was apparent to the plaintiff herself, and that is one of the reasons she consulted Dr. Weinberg.  He advised her of several specific errors made by Dr. Anderson, told her that she was deformed and disfigured as a result of the operation, and that corrective surgery would be required in order to avoid permanent disfigurement.  He also advised her to report Dr. Anderson to the College and to consult a lawyer.

In reasons delivered for the Court of Appeal by Mr. Justice Rouleau:

It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome.  She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible.  In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.

The lawyer originally retained by Ms. Lawless sought a formal written opinion from an appropriate medical expert prior to commencing litigation because in his experience the Canadian Medical Protective Association fights cases very hard, and as a result medical malpractice litigation is usually protracted and expensive.

Although launching legal proceedings in the absence of a supporting medical opinion is risky to the client, lawyers practicing in this field should bear in mind that the limitation period will usually begin to run before a written medical opinion is available.  If the client is consulting a lawyer, she probably knows that she has the potential claim.  The two year limitation period provided by the new legislation gives lawyers a little more time to conduct an investigation and satisfy themselves that the case has merit.  In many cases, however, it will be necessary to commence legal proceedings even though there remains some doubt on the question of liability.

Richard Hayles, B.A., J.D.

Link: Lawless v. Anderson, 2011 ONCA 102

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

A so-called “wrongful birth” action involves a claim for injuries that take place between conception and birth.  The plaintiff, usually a child born with a congenital deficit, is typically represented by his or her parents acting as litigation guardians.  Although wrongful birth claims can arise out of a wide variety of factual situations, most commonly they involve a claim against the mother’s doctor based on deficient medical care received during pregnancy, or a claim against a pharmaceutical company for congenital problems allegedly caused by medications taken by the mother during pregnancy.

These cases raise some interesting and important philosophical and public policy questions, the most obvious of which is, how can being born ever be considered a legal wrong? Since courts have long imposed liability in such cases, the answer to this question is clearly that while life is always a good thing, a birth defect arising from the defendant’s negligence is not.

Another confounding and difficult question involves mitigation of damages and the issue of abortion.  It is a well-established principle of law that a tort claimant cannot recover from the defendant for damages that the claimant could have avoided.  Thus someone who has been injured in an accident has to seek medical care for his injuries, and if his injuries prevent him from working, he is expected to seek alternative employment as soon as he is physically able to do so.

In a wrongful birth case, the defendant will find it difficult to argue that the claim by the injured child is invalid because the prenatal injuries were so extensive that the pregnancy should have been terminated.  Given that there is a legal duty to mitigate, however, and given that abortion is legal, the defendant has a cold but logical argument that the wrongful birth could have been entirely avoided.

In wrongful birth cases the parents typically bring their own claims, seeking compensation for the medical and child care expenses that they have incurred as a result of their child’s condition, and for the loss of the enjoyment of life arising out of the extraordinary efforts that are often required from parents of a child born with a congenital birth defect.  Can the mother’s personal claim for damages be reduced because she failed to mitigate her loss by seeking a legal abortion? In a recent decision, the Ontario Court of Appeal deferred that issue to another day.  The Court concluded that the issue should not be determined in the abstract, but only on the full factual record that would emerge from a trial.

In Leek v. Vaidyanathan, the defendant doctor moved for a determination of the mitigation of damages issue.  The doctor’s motion was brought under Rule 20.01(1)(a), which permits the court to determine a question of law raised in the pleadings.  Since the motion was based entirely on the pleadings in the action, no evidence was presented, so the factual background of the case is unclear.  From the reasons of the Court of Appeal it appears that the motions judge dismissed the doctor’s motion, declaring that the mother had no legal obligation or duty to terminate her second trimester pregnancy in order to mitigate the plaintiffs’ claims for damages in the wrongful birth action.

The Court of Appeal set aside the motion judge’s order, not on the grounds that the principles of mitigation required the mother to obtain an abortion, but rather on the grounds that this issue ought not to be determined solely as a question of law.  In a unanimous judgment, the three justices hearing the appeal stated as follows:

The pure question of law raised by the motion is whether a woman can ever be required to mitigate her claim for damages in a wrongful birth action by having an abortion.  This is an important issue of law, raising significant policy considerations, and such questions are normally better determined on a full factual record after trial, where the judge has been able to make findings that form the basis for the legal analysis and conclusions….

Although it is inconceivable that any pregnant woman will ever be ordered by a court to undergo an abortion, the case does leave open the possibility that the woman’s decision to proceed with her pregnancy to term, although she knows that her child will be born with significant deficits, could reduce her damages claim in any subsequent wrongful birth action.  If this case, or some other case raising the same issue ever does proceed to trial, it will be interesting to see what sort of circumstances might move the court to conclude that the decision to forgo abortion constitutes a failure to mitigate.

Richard Hayles, B.A., J.D.

Link: Leek v. Vaidyanathan, 2011 ONCA 46

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.