Patient permanently wheelchair-bound
The BC Supreme Court has allowed a plaintiff's request to include another doctor in a medical negligence case because it would be "just and convenient."
In Stutt v Hung, 2023 BCSC 1085, Kerri Ann Stutt filed a medical negligence claim for her treatment at Richmond General Hospital (RGH) in 2019. She alleges that the care she received from various healthcare professionals fell below the required standards. She claimed that a spinal epidural abscess she was experiencing was misdiagnosed and mistreated, causing her to suffer a severe spinal cord injury and leaving her a wheelchair-bound paraplegic. Stutt's condition includes bowel and bladder function loss and recurring bladder infections. She requires daily assistance for self-care and has been left permanently wheelchair-bound.
Stutt visited the RGH emergency room on two separate occasions. During the first visit, she complained of severe back, neck, and abdomen pain, along with difficulty breathing and urinary urgency. Dr. Richard Chan conducted an initial assessment and ordered lab tests, which indicated that Stutt had an elevated white blood count. Dr. Chan eventually handed over the care of Stutt to the defendant, Dr. Patrick Chen, who ordered an x-ray of her chest, which was reported as normal. He discharged her and gave her pain medication. Stutt alleged she was not given a diagnosis during her first attendance despite ongoing pain.
On her second visit to the RGH, Stutt reported uncontrollable leg shaking, numbness, and the inability to bear weight. While waiting to be assessed, she repeatedly complained to the nursing staff about her worsening symptoms but felt they were dismissive of her complaints.
Dr. Violet Hung eventually assessed her and ordered an MRI the following morning. Dr. Hung handed over Stutt's care to Dr. Chan before. Stutt's counsel pointed out no notes indicating that Dr. Chan had provided any care to Stutt during the period he was responsible for her care.
Another doctor assumed care of Stuff from Dr. Chan. Stutt underwent an MRI which revealed that she had a spinal epidural abscess. She was subsequently transferred to another hospital, where emergency surgery was performed to decompress the abscess.
As a result of her injuries, Ms. Stutt commenced a medical negligence claim. She applied to add Dr. Richard Chan as a defendant to the action and sought leave to file a revised, amended notice of civil claim. Each of the defendants denies the allegations of negligence made against them.
Just and convenient
The BC Supreme Court noted that the Limitation Act allows new parties to be added or substituted as parties after the expiry of the relevant limitation period under certain conditions, such as the extent and reasons for the delay, any explanation provided for the delay, and the degree of prejudice due to the delay. The court stressed the overriding concern is whether the proposed amendment would be "just and convenient."
Stutt claimed that it was always her intention that all potentially liable parties be named as defendants. Her counsel said it was not clear which, if any, notes were taken by Dr. Chan as opposed to Dr. Chen during the first attendance and which by Dr. Hung and Dr. Chen during the second attendance. Stutt's counsel asserted that it eventually became apparent that Dr. Chan had not made any notes during the portion of the second attendance that he was responsible for Stutt's care. Counsel argued that doctors are obligated to take notes when caring for patients. Further, Stutt's counsel contended that if the doctor did not complete the required charting, the court could draw an adverse inference that the doctor did not provide care to the patient.
The court acknowledged that the evidence established that Dr. Chan was involved in and responsible for Stutt's care during significant portions of both first and second attendances. His role and responsibilities are interrelated with and about those of Dr. Chen during the first visit and of those doctors present during the second.
The court was satisfied that the proposed claim against Dr. Chan arose from the same two assessments as the existing defendants and involved real issues that were not frivolous. The court found that Stutt has pled a possible cause of action against Dr. Chan in the revised, amended notice of civil claim.
The court was further satisfied that it would be just and convenient to decide the plaintiff's issues with Dr. Chan with the problems the plaintiff has as against the existing defendants. The claims all arise from Stutt's two attendances at RGH. They all stem from the same course of care she received during each assessment. The court noted that there would be many common issues and witnesses, and it appeared that at least some of Dr. Chan's interests in defending the plaintiff's claims were likely to have areas in common with positions that the other defendant doctors have taken.
Limitation period
The court considered whether the limitation period for including Dr. Chan as a defendant in the medical negligence claim has expired. The court acknowledged that while the limitation period for the first visit may have expired, it is arguable whether it has expired for the second visit.
The court considered the extent of the delay in bringing and the degree of prejudice caused by the delay. Dr. Chan claimed the loss of an accrued limitation period, but the court found no evidence of actual prejudice regarding his ability to defend against the proposed claim. The court also noted that relevant hospital records have been preserved and produced, and no evidence of key witnesses is unavailable.
Accordingly, the court concluded that adding Dr. Chan as a defendant in this action would be just and convenient.
