The plaintiffs in a medical malpractice action sought to amend their Statement of Claim to add a proposed defendant, Dr. Sharon Koren, after the two-year limitation period under Section 38(3) of the Trustee Act had expired.
The court dismissed the motion, finding that neither the common law exception of fraudulent concealment nor special circumstances applied to extend the limitation period.
The court noted that Dr. Koren's error in sending an erroneous consult note was made in good faith and corrected promptly, and that the plaintiffs were aware of Dr. Koren's involvement well before the limitation period expired.
The court also gave little weight to the plaintiffs' counsel's affidavit due to issues of privilege waiver and hearsay.
