Singer Kwinter’s Nga Dang highlights important facts and outcomes in the Ontario Courts.
Case summary originally distributed in OTLA’s February 17, 2019 newsletter.
Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 391 (CanLII)
This medical negligence action arises from medical care provided to John Graham on May 23 and 24, 2008 at Southlake Regional Health Centre. Mr. Graham passed away on February 8, 2009. The Plaintiffs commenced the action against the hospital and various physicians for their negligent failure to remove a medical sponge from Mr. Graham’s throat after dental surgery.
The Plaintiffs now seek to add Dr. Peter Law, a radiologist, asserting that their claim against Dr. Law was not known until early 2015. The parties agreed that the principle of discoverability was irrelevant on this motion; rather, the limitation period set out in the Trustee Act applied, which provides that no action shall be brought after the expiration of two years from the death of the deceased. In this case, the Estate’s claim expired on February 9, 2011.
After Mr. Graham’s death, Ms. Graham requested her husband’s medical records from Southlake. In the fall of 2008, the family received approximately 200 pages of medical records. The records did not include a copy of the x-ray report by Dr. Law, although the x-ray was referenced in a clinical consultation report of the ER physician. On February 23, 2015, without solicitation, Southlake disclosed to the Plaintiffs the x-ray image dated May 23, 2008. In July 2015, counsel for Southlake also advised the Plaintiffs that the CD also contained a program to access a radiologist interpretation note. No explanation was provided to the Court as to the reasons for these two disclosures and their timing.
DiTomaso J. reviewed the Doctrine of Special Circumstances and the Doctrine of Fraudulent Concealment, either of which, if applicable, would justify the amendment of the pleadings in the circumstances. DiTomaso J. emphasized that these equitable doctrines are a “narrow exception” to the general rule. Where a plaintiff seeks to add a party after the expiry of a limitation period, the onus is on the plaintiff to both: a) rebut the presumption of prejudice; and 2) demonstrate that there are special circumstances which justify the addition of the parties.
DiTomaso J. recognized that there was an inference of prejudice to Dr. Law as he had no notice of the litigation prior to the expiry of the limitation period. However, DiTomaso J. found that the Plaintiffs have rebutted the presumption on the evidence, noting that Dr. Law would have the benefit of the work and investigation done by his co-defendants.
With respect to special circumstances, DiTomaso J. found this case distinguishable from Wisniewski v. Wismer and Wohlgemut. DiTomaso J. emphasized that the radiographs were not provided to the Plaintiffs at the outset, but approximately 6.5 years later. The Plaintiffs therefore never knew that any radiograph existed or that Dr. Law interpreted such a radiograph. The Plaintiffs were diligent in requisitioning a care conference to identify all the parties responsible and obtaining all relevant medical records well within the litigation period. It was clear that the Defendants failed to disclose Dr. Law’s involvement and the radiograph until 2015. Therefore, DiTomaso J. found that the Plaintiffs had established special circumstances and allowed the amendments to add Dr. Law.
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