AVOIDING CASE DISMISSAL IN MEDICAL MALPRACTICE LAWSUITS
Author(s): Kate Cahill
August 22, 2016
A search of Ontario medical malpractice cases decided in the last 6 months shows that Plaintiffs risk having their cases dismissed if they do not have an experienced malpractice lawyer. Plaintiffs’ claims are often dismissed because they have not commenced their action within 2 years.
Of approximately 14 medical negligence rulings in the last 6 months, 6 cases were dismissed on motions. Of the 6 cases that were dismissed, 4 were dismissed as a result of the Plaintiff’s failure to commence an action within the 2-year limitation period provided for in the Limitations Act, 2002.
In Liu v Wong, the Plaintiff was injured when his physician removed surgical staples. The action was commenced more than 3 years after the removal. The action was dismissed as statute barred because Mr. Liu knew there were problems with his knee as soon as the staples were removed.
In Colin v. Tan, the Plaintiff underwent spinal surgery in 2006 and was rendered an incomplete quadriplegic. The Plaintiff attempted to add the surgeon to an existing action in 2013. The claim against the surgeon was held to be statute barred.
In Novello v. Glick, the Plaintiff brought an action for dental negligence in May of 2014. The dental treatment occurred in March of 2012. The action was dismissed.
In Szanati v. Melynchuk, the Plaintiff received medical treatment in 2008. The Plaintiff commenced an action against the hospital in 2010 and attempted to add the emergency physician in October 2014. The claim against the doctor was held to be statute barred.
Determining when a limitation period starts to run in a malpractice action can be difficult; particularly when a patient is receiving ongoing treatment and hopes that his or her condition will be improved with further treatment. Therefore, patients who are concerned about medical negligence should always consult with experienced legal counsel as soon as possible to investigate whether their medical negligence case has merit.
Early investigation is essential because the law is clear that, “a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered by the Plaintiff by the exercise of reasonable diligence.”
Keeping these limitation period challenges in mind, victims of medical malpractice should not delay in looking for diligent and competent medical negligence lawyers who are able to: (1) identify the relevant medical issues; (2) retain qualified medical experts; (3) develop a clear theory of liability; and, most importantly, (4) sue all of the necessary Defendants within 2 years.
1. R.S.O. 2002, c.24, Sched. B, s.4
2. Liu v Wong, 2016 ONCA 366.
3. Colin v Tan, 2016 ONSC 1187.
4. Novello v Glick, 2016 ONSC 975.
5. Szanati v Melynchuk, 2016 ONSC 1293.
6. Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors,2012ONCA 851, at para 32.
Avoiding Case Dismissal in Medical Malpractice Lawsuits (PDF version)