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Time Limitation in Medical malpractice

Time Limitation Periods in Medical Malpractice

medical-malpractice-case Medical_negligence

In Ontario, there is a limited time barrier¬†in which a victim of someone else’s negligence or mistake can bring a personal injury or medical malpractice claim. The Ontario Court of Appeal recently dismissed¬†a malpractice claim submitted this year for damages related to a procedure done in 2004.

Let’s explore the statutes of limitations for medical malpractice claims in Ontario in light of that court ruling.

Limitation Period

The Limitations Act of Ontario establishes deadlines for potential plaintiffs to file their claims in civil cases. The court is likely to dismiss an action when it is filed after the limitation time has passed.

There are limitations periods in place to protect possible defendants. A person in Ontario is not have to live in constant fear of legal repercussions even if they have done a careless conduct, according to the province’s legal system.

Generally, there is a two year period in which a patient can bring a legal action for medical or dental negligence. This is referred to as the limitation period.  Unfortunately, developments in the law in Ontario may allow that time period to be extended when a health care professional is providing remedial or corrective treatment. This potential extension of the limitation period is another reason health care professionals ought to think twice before continuing to treat patients after complications occur.

The Two-Year Limitation Period
The basic limitation period for civil lawsuits in Ontario, including medical malpractice claims, is two years. Thus, a patient who suffers an injury has two years to file a claim against their healthcare professional from the date of the injury or from the day the patient first learned of the injury.
The two-year limitation period has a few exceptions, but the most significant ones concerns are young plaintiffs and injured people who lack the ability (physically or mentally) to commence a claim on their own. The two-year limitation period will not start running if the injury victim was under the age of 18 when they were hurt. The limitation period does not apply if a person is incapable, while they are incapacitated and are not represented by a Litigation Guardian.
The 15-Year Limitation Period

Although there are certain exceptions to the two-year time barrier limitation deadline, Ontario courts usually never approve claims based on injuries that happened more than 15 years ago. for example,¬† In the case of Taylor v. David, the plaintiff, Andrea Theresa Taylor, sought damages for injuries brought on by a jaw operation carried out at Mississauga’s Trillium Health Centre for more than 17 years by doctors Lesley David and Larry Raley.

 the plaintiff attempted to justify her delayed filing by claiming that the defendants had failed to disclose her medical records, and her physical and mental health prevented her from commencing legal procedures, so her son,  was also deserved compensation, also she claimed that he was also owed compensation, was a minor when the surgery took place.

Time limitation

Case laws

Brown v. Baum
In Brown v. Baum, a patient who developed fat necrosis after breast reduction surgery due to obesity and ongoing smoking (against medical advice) sued her plastic surgeon alleging absence of informed consent. Remedial treatment, consisting of seven procedures by Dr. Baum, eventually produced an acceptable aesthetic result fifteen months after the initial operation. Ms. Brown commenced her legal action just under two years after the last surgery.  Dr. Baum sought to have it dismissed on the ground the two year limitation period had passed, as the legal action was commenced more than two years after the patient knew all the facts on which her case was based, i.e. when she knew of the fat necrosis following the first surgery.
The plaintiff admitted she believed Dr. Baum had done something wrong within months of the first procedure and that she was gathering evidence for a potential legal action from the outset. However, the judge dismissed Dr. Baum’s argument that the two year limitation period had passed and accepted the plaintiff’s argument that the limitation period did not start to run until remedial treatment was concluded because it would not have been appropriate for her to sue Dr. Baum before his attempts to correct the problems created by his first surgery had been exhausted. This was a precedent setting decision.
Taylor v. David,
Although there are certain exceptions to the two-year time barrier limitation deadline, Ontario courts usually never approve claims based on injuries that happened more than 15 years ago. for example,¬† In the case of Taylor v. David, the plaintiff, Andrea Theresa Taylor, sought damages for injuries brought on by a jaw operation carried out at Mississauga’s Trillium Health Centre for more than 17 years by doctors Lesley David and Larry Raley.
 the plaintiff attempted to justify her delayed filing by claiming that the defendants had failed to disclose her medical records, and her physical and mental health prevented her from commencing legal procedures, so her son,  was also deserved compensation, also she claimed that he was also owed compensation, was a minor when the surgery took place.
C-G v. R
The above principle was taken a step further in a dental malpractice case involving failed bridgework. In C-G v. R, the patient experienced continued breakage of her maxillary and mandibular porcelain bridges. In September 2011, she threatened to consult a lawyer and sue if Dr. R did not provide a refund. She repeated her insistence on a refund at an appointment a week later and added a demand that Dr. R provide her lifelong treatment free of charge. Dr. R said he would think it over but never provided the refund.
When Ms. C-G next attended in November 2011, her maxillary bridge was failing and she wanted it re-cemented. Dr. R advised that she needed dentures but eventually gave in to her demands. What followed was a series of visits over 11 months during which Ms. C-G demanded re-cementation and Dr. R capitulated, all the while making it clear the treatment was doomed to fail.
After Ms. C-G started a legal action against Dr. R in June 2014, Dr. R sought a dismissal on the ground that Ms. C-G had ‚Äúdiscovered‚ÄĚ her claim when she threatened to sue in September 2011 and the limitation period had therefore expired in September 2013, nine months before her legal action was issued.
Despite the fact that Ms. C-G articulated concerns about Dr. R’s treatment in September 2011 and the care provided after that was clearly not remedial in nature, the court found that the time for commencing an action did not start until Dr. R last touched one of the bridges in October 2012.

Outcomes

These judgments represent a significant change in the law regarding limitations periods. Based on the “discoverability” principle, there is less certainty about when a limitation period has expired and greater scope for discretion. As a result, when medical professionals attempt to assist their patients by providing further care in the event of an unsatisfactory clinical result, they are extending the window of opportunity for patients to sue them for negligence.

Dr. R case shows, merely treating the patient for the same condition may suspend the limitation period. In no circumstances should a patient be abandoned mid-treatment or denied emergency care. However, as Brown v. Baum demonstrates, one cannot assume that diligently trying to satisfy a patient will prevent a lawsuit, even if such efforts are ultimately successful.

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