Wednesday, June 6, 2012

Damages necessary before cause of action discovered?

Shauna Thompson v. Dr. Yogi Sehgal, 2012 ONSC 3258 is a very recent summary judgment decision that may be a source for the proposition that a cause of action is not discovered, for limitations purposes until damages are suffered. 

[38]           There was a much more important and simple reason why Ms. Thompson did not commence her claim until December of 2009.  That reason was because after her cancer went into complete remission in October of 2007, Ms. Thompson had no damage, and thus had no cause of action that she could bring against the defendant physicians. She had no cause of action until the cancer returned in October of 2009.


[40]           Plaintiff’s counsel agrees that this is a delay in diagnosis case, and that Ms. Thompson had cancer, which was not diagnosed.  But he says that if it had been diagnosed, she could have been treated, and she would have been treated.  This is not a case like Lawless v. Anderson where the damage is attributable to a botched surgical procedure that took place on one particular identified date.  Rather, it is a case where the plaintiff had the bad fortune to have a family history of breast cancer, and where a group of physicians allegedly negligently failed to respond to indicators and investigate and treat her at an earlier time, which resulted in her malignant breast cancer not being diagnosed until March of 2007.

[42]           That follows because discoverability relative to the application of the limitation period ties in inextricably with the presence of the material facts necessary to found a cause of action.  The material facts of which the plaintiff must be aware before the limitation period can commence to run are those which would constitute negligence.  Negligence itself is composed not only of the breach of an applicable standard of care, but also the causation to give rise to a cause of action.


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