He had already disposed of his notes detailing his involvement in the patient's care
The Saskatchewan Court of King’s Bench has refused to add an emergency physician as a defendant in a medical negligence lawsuit because of the delay in bringing the action against him.
Julianne Bloski sued Dr. Shravankumar Nosib, Dr. Stephen Pylychuk, and the Saskatoon Regional Health Authority for negligence in the care of Julianne’s late husband, Perry Bloski. In November 2014, Perry went to the Emergency Department of Saskatoon City Hospital because of chest pain. Dr. Wessel Hamman examined Perry and later arranged for Perry’s transfer to the Cardiology Department of Royal University Hospital, where he died on the same evening he was transferred.
Julianne had never sued Dr. Hamman. In November 2019, Julianne’s counsel received an expert opinion regarding the standard of care required of Dr. Nosib and Dr. Pylychuk. The same expert report also showed that Dr. Hamman did not meet the standard of care of an emergency physician. As a result, Julianne filed a separate lawsuit against Dr. Hamman.
Dr. Hamman denied liability and claimed that the action was barred by statute. He also asserted that the action against him should be struck for being frivolous and constituting an abuse of the court. On the other hand, Julianne sought an order allowing Dr. Hamman to be added as a defendant and the statement of claim to be amended.
The court noted that it could exercise its discretion to allow the amendment adding Dr. Hamman as a defendant if it is satisfied that the claim against Dr. Hamman arises out of the same transaction and that no party will suffer actual prejudice as a result this amendment.
Dr. Hamman admitted that the claim against him arose from the same transaction as in the statement of claim filed against the defendants. However, he argued that he would suffer actual prejudice if the plaintiff were permitted to add him as a defendant.
The court noted that jurisprudence defines “actual prejudice” as prejudice associated with a delay that affects the ability of the opposing party to respond to the amended claim.
Dr. Hamman asserted that he would suffer actual prejudice if he were added as a defendant in the action. He claimed that two weeks after Perry Bloski’s death, he made a personal record of the events, so he prepared handwritten notes detailing his involvement in Perry’s care. However, Dr. Hamman said he disposed of his notes around February 2022 because he had not received any indication that he would be a party to any legal proceedings regarding Perry’s death. The College of Physicians and Surgeons and Saskatoon Regional Health Authority also informed him in 2015 that he was not implicated in the incidents relating to Perry’s death.
Dr. Hamman further explained that he could not recall the details of the care he provided to Bloski, considering the length of time since Bloski’s death.
The court ruled that Dr. Hamman’s notes would have greatly benefited him in responding to the allegations of negligence made against him. The court noted that the medical records already disclosed in action were insufficient as they would not contain the details that Dr. Hammn had set out in his handwritten notes a few weeks after Perry’s death.
The court further acknowledged Dr. Hamman’s explanation for disposing of the notes. In addition, the court said that the separate action against Dr. Haman was commenced one day short of the two-year limitation period when the plaintiff’s counsel received the expert report implication, Dr. Hamman.
Accordingly, the court was not satisfied that Dr. Hamman would not suffer actual prejudice due to being added as a defendant. The court further said that even if Dr. Hamman would not suffer actual prejudice, the court would still exercise its judicial discretion in denying Julianne’s application because her counsel knew of a potential claim against Dr. Hamman when he received the expert report, which was in November 2019 or five years after Perry’s death.
The court ruled that the delay in serving Dr. Hamman with the claim in the separate action is “inexcusable” and “militates against” granting the application.
