Plaintiffs failed to produce expert report to support their medical negligence claim, court finds
The Ontario Superior Court of Justice has denied further adjournment and granted a motion for summary judgment relating to an action for damages for medical negligence, ruling that the action was initiated eleven months beyond the statutory limitation period.
In Odede v. Tartaro, 2021 ONSC 1845, the plaintiff patient went through a colonoscopy and polypectomy performed by the defendant doctor on Nov. 22, 2012, due to rectal bleeding problems. Shortly afterward, the patient experienced pain and fever. A scan revealed a perforation in the patient’s colon. On Nov. 24, 2012, the patient underwent a repair surgery consisting of a colectomy.
On Oct. 19, 2015, or two years and eleven months after the surgeries, the patient and his wife initiated an action for damages for medical malpractice against the doctor and the medical centre where the surgery occurred. They alleged that, following the surgery performed by the defendant doctor, the plaintiff needed to delay a trip to Nigeria, experienced relapses and an inability to do much business and suffered financial losses.
The defendants denied negligence. In June 2019, they served an expert report contending that the doctor’s techniques complied with the standard of care in Ontario and that the surgery likely did not cause the conditions the patient attributed to it. The plaintiffs failed to present an expert report despite the defendants’ requests.
In July 2020, the defendants filed a motion for summary judgment to dismiss the plaintiffs’ action because the action was initiated eleven months beyond the two-year statutory limitation period prescribed by the Limitations Act, 2002 and because the plaintiffs failed to produce an expert report to substantiate their claims of negligence in the medical malpractice action.
The plaintiffs obtained an adjournment, submitting that the patient had gone to Nigeria to gather evidence supporting his action, then was unable to return due to COVID-19-related quarantine measures and travel restrictions.
The defendants requested a timeframe from the plaintiffs for rescheduling the motion. Upon receiving none, the defendants later followed up on this request, citing the reports that international flights from Nigeria would resume on Aug. 29, 2020. The defendants warned that a date would be booked unilaterally if the plaintiffs failed to respond, thus scheduling the motion to be heard in March 2021.
In the present case, the Superior Court of Justice of Ontario exercised its discretion to refuse the plaintiffs’ request for a further adjournment, allowed the defendants’ motion for summary judgment and issued a summary judgment dismissing the plaintiffs’ action. The court said that there was no genuine issue for trial on the limitations defence. The defendants’ motion allowed the court to make the necessary findings of fact, apply the law to the facts, and achieve a just result through proportionate, more expeditious and less expensive means.
The court found no reasonable prospect that the medical records and medical opinion that the patient sought, as a justification for the request for further adjournment, would support the plaintiffs’ contention that they did not know the material facts giving rise to the claim as of Nov. 24, 2012. Considering the statement of claim, the court determined that as of Nov. 24, 2012, the plaintiffs knew that the perforation had occurred and that the procedure performed by the defendant doctor had caused the perforation.
The court noted that the patient immediately suffered damages when he went to the emergency room and underwent repair surgery. The court rejected the submission that the limitation period restarted when the plaintiffs later identified additional damages because knowledge of the extent of the damages was irrelevant to the commencement of the limitation period.
The court also found that the plaintiffs’ delay could not be justified because of COVID-19-related disruptions or because of an inability to access medical records or medical expert opinions. This determination was based on the expiry of the emergency order suspending Ontario’s limitation periods and the termination of the total lockdown in areas of the province most impacted by the pandemic.
