The delay in advancing new allegations will cause significant prejudice to the surgeon: court
The BC Supreme Court has dismissed a negligence claim against a surgeon despite the plaintiff's proposed amendment to the statement of claim.
In Woldemariam v. Providence Health Care (St. Paul's Hospital), 2023 BCSC 1783, Elias Woldemariam went to the Mount Saint Joseph Hospital seeking treatment for his right foot, which was swollen and had blisters and ulcers. He eventually underwent a surgical operation at St. Paul's Hospital in Vancouver, leading to the amputation of his right leg below the knee.
The plaintiff commenced an action against the surgeon who performed the operation, Dr. John David Reid, alleging that the amputation could have been avoided had Dr. Reid and the hospital staff exercised due care in treating him.
Dr. Reid applied for judgment dismissing the claim by way of summary trial. He argued that the lawsuit against him was bound to fail because the plaintiff did not present expert evidence on the critical issues of the applicable standard of care, causation, and damages. Dr. Reid argued that without such evidence, the claim against him could not succeed, and the deadline for delivering expert reports had passed.
The plaintiff opposed the application because the action did not lend itself to summary disposition if the court permitted him to amend his claim. Accordingly, he brought a cross-application seeking leave to replace the current claim with new allegations, including the argument that Dr. Reid was negligent in failing to inform the plaintiff before the day of the operation that an amputation of at least part of his right leg was inevitable. He also alleged that Dr. Reid committed battery as the plaintiff had consented only to amputating a toe rather than the bottom half of his leg.
The plaintiff argued that his proposed amended claim could succeed without supporting expert evidence and should be allowed to proceed to trial.
Dr. Reid opposed the plaintiff's application because the test for leave to amend had not been met. He also argued that even if the proposed amendments were made, the claim would still have no realistic chance of succeeding. Dr. Reid asked for the summary dismissal of the action. Ultimately, the court ruled that Dr. Reid's application should be allowed and the plaintiff's claim dismissed.
Amendment application
The BC Supreme Court explained that since the day of the operation, the plaintiff had been aware of all of the facts that form the basis of his proposed new claims. The limitation period would have expired two years after that but was tolled for a further year by statute during the pandemic, until ultimately it passed in May 2021. The court referred to case law, where a delay of similar duration was described as extensive enough to weigh against granting leave to amend.
Furthermore, the court noted that the timing of the application suggested that these new allegations were advanced at the last minute in an effort to avoid having the claim summarily dismissed because the plaintiff failed to obtain expert evidence to substantiate the allegations initially pleaded.
The court emphasized that prejudice to the defendant is presumed if the plaintiff seeks to advance a new cause of action after the expiry of a limitation period. The court found that the plaintiff failed to rebut this presumption. The court ruled that if the claim is not summarily dismissed, the delay in advancing the new allegations will cause significant prejudice to Dr. Reid. The trial for which Dr. Reid has been preparing until now will be fundamentally different than the one he will be facing if the amendments were permitted. Consequently, the court declined to grant leave to amend in favour of the plaintiff.
Summary Trial Application
The court considered the merits of Dr. Reid's summary trial application both with and without the proposed amendments. The court noted that the real issue in contention was whether Dr. Reid would also be entitled to judgment on the claim based on the proposed amendment.
The court found that despite the prejudice to Dr. Reid caused by the delay in advancing the proposed claims in negligence and battery, the court could still make the factual findings necessary to grant judgment on the application. The court considered the flaws in the plaintiff's recent account of events and the absence of expert evidence to support the original or proposed new negligence claim.
Accordingly, the court concluded that Dr. Reid was entitled to judgment in his favour. The court dismissed the entire lawsuit against him, whether in its current form or as the plaintiff sought to amend it.
