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.
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