Two-Year Window for Malpractice Lawsuits Often Murky for Surgeries

The Advocate Files: Medical Malpractice Lawsuits

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Two-Year Window for Malpractice Lawsuits Often Murky for Surgeries

Comment by: Paul Cahill – Toronto Medical Malpractice Lawyer at Will Davidson LLP.

Patients filing a medical malpractice claim must do so within two years of becoming aware of the alleged medical error, but a recent Ontario Court of Appeal decision shows pinpointing that date is sometimes more complicated than it seems, says Toronto malpractice lawyer Paul Cahill.

“In medical malpractice, it becomes very complicated and it’s not always clear when those material facts are known to the patient,” says Cahill, partner with Will Davidson LLP.

“It’s so much different from a car accident, when the limitation period starts from the time you were hit by the car,” he tells Top Lawyers.

Defining the starting point of a limitation period is particularly difficult in surgeries, Cahill says, when a patient may not realize something is wrong until some time after the surgery has taken place.

In Brown v. Baum, 2016 ONCA 325 (CanLII), a female patient had severe complications after a breast reduction surgery. She didn’t file a claim until more than three years after the initial surgery, but within two years of when the doctor last treated her to correct the original problems.

The patient sued the doctor for medical malpractice alleging lack of informed consent, saying the doctor failed to inform her of the possible risks associated with obesity and smoking, the decision says.

The doctor was unsuccessful on his summary judgment motion to dismiss the action under the Limitations Act, a ruling the appeal court upheld.

“A reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated,” the panel of appeal court judges wrote.

While Cahill agrees with the decision in this case, he warns patients not to wait too long before filing a medical malpractice claim.

In general, Cahill says it’s best to assume the limitation period begins from the date of the surgery.

“If there is an argument to be made that the limitation period was missed, you can always be assured the defence will bring a summary judgment motion. When I’m consulted by clients who have clearly missed the limitation period, there is no point in me trying to assist them because the case will likely be dismissed.”

It can be difficult in plastic surgery cases where the doctor attempts to rectify the problem, he adds.

“The plastic surgeon may offer to do a revision surgery without charging, or for some nominal amount. The person can choose to be treated and they might undergo multiple surgeries by the same plastic surgeon in an attempt to correct whatever the complication is,” Cahill says.

“During that time, they might think their limitation period doesn’t start until they decide the problem can’t be resolved to their satisfaction. But the situation is rarely so black and white, he says.

Another area of confusion is when patients file complaints to the College of Physicians and Surgeons and the impact that has on the limitation period, Cahill says.

He advises clients against waiting for such complaints to be investigated before filing a claim.

“The fact you’re making a complaint to the college suggests strongly you are aware of some concerns about medical care,” he says. “The limitation period is running while you are going through the complaint process, and it may expire before it’s done.

“So although I recommend to patients to complain to the college if they feel it is appropriate, they should never assume by making that complaint their limitation period to start a lawsuit is somehow delayed.”