Limitations can be trickier than they seem

Medical Malpractice lawyers share best practices to address scenarios that complicate the supposedly simple math of a two-year clock

Limitations can be trickier than they seem
Heidi Brown is a partner at Bogoroch & Associates LLP.

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Issues surrounding the timeframe within which an action must be commenced can be perplexing for any civil litigator but are frequently encountered in the context of medical malpractice cases.  Injured adults generally have two years to start an action from when the cause of action arose, whereas for minors, the two-year limitation period starts to run from their 18th birthday. In a medical malpractice case, care and treatment can be ongoing for months or even years, thereby rendering the date from which the 2-year clock starts to run very difficult to determine. Failing to start the lawsuit within the prescribed time frame can disentitle a meritorious claim from ever getting off the ground. 

Heidi Brown, partner with Bogoroch & Associates LLP, says that any potential limitation issues need to be identified early on, even at the initial client meeting.  A proactive strategy is required, informed by the unique circumstances surrounding when the plaintiff “discovered” the alleged negligence.  The discovery by the Plaintiff of the potential negligence is crucial, as it could occur well beyond two years from an alleged negligent surgery, delay or misdiagnosis of a serious medical condition. Lawyers cannot waste time in the face of that two-year clock, as their client may have already spent more time than they should have before turning to a lawyer for justice.

 “The rule is that limitations start running two years from the date of discovery,” Brown says, “but there are a range of issues that can arise around discoverability. For example, the facts underlying a delayed cancer diagnosis case can happen over a period of years. Even after the appropriate tests are ordered, there could be a period where the physician talks about a likely diagnosis with the patient, before the cancer is confirmed. The defence could point to the start of that diagnosis process, rather than the end, as the time of discovery.”

While many limitations defences are not borne out by the facts, Heidi Brown says it is crucial that medical malpractice lawyers are alive to any time gaps or potential limitations defences as “most limitations defences are ‘boilerplate.’” Nevertheless, Brown says the best practice if you are retained within two years of the date of a potentially negligent event such as a substandard surgery, is to always issue the statement of claim within two years of the procedure date. While there are multiple specific factors a plaintiff needs to be aware of to have discovered their claim, the presumption is that they were aware of those factors on the date of the act or omission, and it is the plaintiff who must prove otherwise. For this reason, whether or not the limitation will be found to have expired is always dependent on the specific facts of each case, but relying on the principle of discoverability it is not a risk worth taking if it can be avoided.

Even when a claim is filed more than two years after the date of a procedure, Kristina Maitland, associate with Bogoroch & Associates LLP, says the principle of discoverability can operate to successfully defeat a limitations defence.  It can be argued that while the procedure may have been performed on a date more than two years prior, the discovery of the mistake or alleged negligence of the physician occurred considerably later.

For example, the Court of Appeal held in Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ONCA) that an alleged attempt by medical professions to deliberately conceal their negligence would pause the running of the limitation period until an injured party could reasonably discover the cause of action.

Additionally, Maitland says lawyers should also be aware that even after an adverse outcome, if a patient is still in the care of the same physician and that physician is trying to fix the problem, the limitation period may not have begun to run. In Brown v. Baum, 2016 ONCA 325 (Can LII), the Ontario Court of Appeal held a claim issued more than three years after an alleged negligent surgery could proceed. The plaintiff had undergone a breast reduction surgery leading to numerous complications, which her surgeon subsequently attempted to address for over a year. Within two years of the surgery, the plaintiff was aware she had suffered an injury that was caused by the potential negligence of the surgeon. However, the Court held that a reasonable person in her circumstances would not consider it appropriate to sue the surgeon while he was still in the process of attempting to correct her injury. If the surgeon was successful in minimizing the damages, there may not have been damages for which to sue. 

The Court of Appeal in Dale v. Frank, 2017 ONCA 32 (CanLII) held that for a claim to be “discoverable,” the question is whether the Plaintiff knows enough facts upon  which to base an allegation of negligence against the defendant.  The Plaintiff need not know during that time if the defendant is “culpable” in order to start a lawsuit.

Given the potential pitfalls of a limitations issue, Brown says the best practice is, first and foremost, to obtain relevant medical records and determine the limitation period at the time of being retained. After complex procedures, patients can spend months convalescing in hospital or in rehab before they decide to sue, and the clock may have been ticking the whole time. Once the case is in a lawyer’s hands, Brown says the lawyer must move quickly.

If a client is brushing up against the two-year limit or has exceeded it, expectations management becomes crucial. Lawyers need to have the conversation with their client early on to make sure they know that their case might be statute barred.

“We frequently meet with people who want representation that are very likely out of time to sue civilly,” Brown says, “however, even though an action may be statute barred, a complaint may still be made to the College of Physicians and Surgeons. Although there is no financial remedy, the complaints process may provide the answers the person is seeking.” 

Brown underscores the key take away for any lawyer is that “the second you take on a case, you do so knowing the clock is ticking and the first thing you should be doing is protecting that limitation.”

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