Loy-English, a doctor, attended the Ottawa Hospital emergency room in January 2013 with stomach complaints. An endoscope was inserted orally to travel to the small intestine. The procedure (endoscopic retrograde cholangio pancreatography) apparently perforated her duodenum. The perforation was not detected. The patient re-attended emergency with severe pain, there was adverse reaction to medication, septic shock (as could be expected from a perforation) intensive care loss of level of consciousness and infection.
Approximately a year later, after many months of Ottawa Hospital intensive care and rehabilitation at St. Vincent Hospital, the plaintiff filed a statement of claim. The formal limitation period statutorily started on the date of the procedure (January 2013), although the determination of the limitation period obviously depended upon the first logical date that the plaintiff should have known of negligence. (Alternatively: can the plaintiff displace the statutory presumption of two strict years from date of injury). (para 23)
The critical question was: the Plaintiff having individually sued various doctors on different dates after January 2015, (as the plaintiff’s expert opinions revealed specific acts of apparent negligence), does the plaintiff get to commence a claim in December 2016 (2 years 11 months after the incident) against the emergency room doctor whose apparent delayed antibiotic apparently added to the Plaintiff’s damage.
MacLeod J. framed the question as:
[15]…If an expert opinion was necessary to understand that there was a potential claim against [the emergency doctor] and if the plaintiff acted with reasonable diligence in obtaining that opinion the limitation period for the third action may not have begun to run until 2016
Macleod J. framed the question: when were the material facts known to the plaintiff. The material facts in the case of the emergency room doctor’s delayed antibiotic reasonably required the opinion of an expert before causation could reasonably be known to the plaintiff. In this case, it was reasonable to conclude that an expert opinion was required before the limitation period began to run in relation to this particular defendant.
Macleod J. dismissed the defendant’s summary judgment motion based upon the limitation period.
comment: this is the first step in a series of summary judgment-type motions in this case. It is important to see Macleod’s evaluation of the limitation defence in order to appreciate the later motions
comment: this case is a classic medical malpractice scenario where the plaintiff is damaged by a complex set of medical transactions. The plaintiff cannot readily point the litigation finger on the first day of mere knowledge of damage. Even the medical record does not readily point the finger at every possible defendant. So lawyers use, and the court of appeal has accepted using ‘John Doe’ as a ‘placeholder’ until some later expert report identifies the specific wrongdoer who can then be formally named in the claim. Macleod discusses the use of ‘misnomer’.
comment: the other interesting thing about this case is the use of a fresh statement of claim (within the limitation period) in order to avoid issues of amendment and misnomer.
comment: this case highlights the fact that different defendants can be associated with different limitation periods for a series of closely related medical transactions that take place on the same day.
