Discoverability

Lawless v. Anderson, 2011 ONCA 102, released today, deals with the concept of discoverability. A limitation period starts running once a potential plaintiff "discovers" the claim. But what does that mean? The court writes:

[22] The principle of discoverability provides that "a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term 'cause of action' – the fact or facts which give a person a right to judicial redress or relief against another": Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.), at p. 170.

[23] Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.).

[24] In some medical malpractice cases, however, it has been recognized that in order to discover that they have a claim, plaintiffs may require advice from a person who is medically trained. Similarly, in some cases, plaintiffs will require access to their medical records and charts in order to become apprised of the facts necessary to discover their claim.

[25] When dealing with cosmetic surgery, as in the present case, the outcome of the surgery will often be subjective. For any number of reasons, the patient may be unhappy with the result, but will not know whether the unsatisfactory outcome may be the result of negligence rather than an unfortunate, but non-negligent outcome. This is well illustrated by the case of Patterson v. Anderson (2004), 72 O.R. (3d) 330 (S.C.). In that case, a 71 year-old had liposuction surgery in order to improve the appearance of her knees and thighs. After the operation, she suffered pain and was dissatisfied with the appearance of her legs. She consulted various doctors and complained to the College of Physicians and Surgeons of Ontario. However, it was only when she received the decision of the College resulting from her complaint that the plaintiff discovered the facts needed to issue a claim in negligence. As Speyer J. explained at para. 25:

[I]t is not until the plaintiff receives the CPSO report that she realizes two things. First, she may not have been an appropriate candidate for the procedure. Second, an inappropriate instrument may have been used during the course of the surgery. Both these matters are directly related to Dr. Anderson. It is now the basis of the allegations of negligence contained in para. 11 of the Statement of Claim.

[26] In Patterson, the plaintiff needed the medical information contained in the CPSO discipline decision to discover that she "may" have been an inappropriate candidate and that an unsuitable instrument – an inappropriately sized canula – "may" have been used. These two facts were not known to the plaintiff until revealed to her in the report from the college, and they would not have been obvious to a lay person. These two facts do not appear to have been communicated to Ms. Patterson by any of the doctors who she had previously consulted as a result of the pain in her legs. As noted by the trial judge, the specific factual allegations disclosed in the report were simply unknown to the plaintiff prior to the receipt of the report. As these factual allegations formed the core of her claim of substandard medical treatment, the limitation period did not begin to run until their discovery.

[27] The need to obtain medical records in order to discover the facts necessary to make a claim is well illustrated in Urquhart et al. v. Jacklin et al. (1999), 124 O.A.C. 11 (C.A.). In that case, the plaintiff had been diagnosed with breast cancer and the issue was whether the defendant physician had failed to interpret a mammogram conducted a year prior correctly. Absent access to her chart, including a copy of the mammogram, and the advice of a radiologist as to whether the mammogram disclosed the presence of the cancer, the plaintiff could not know whether she could allege that the doctor was negligent in failing to detect the presence of the cancer.

[28] While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases: see McSween v. Louis. Moreover, a formal written medical opinion is not required – what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. This point was well expressed in Gaudet et al v. Levy et al. (1984), 47 O.R. (2d) 577 (H.C.J.), at p. 582:

It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person,with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him. [Emphasis added]