Dr. John H. Gryfe

Four plaintiffs brought a consolidated medical malpractice action against St. Joseph's General Hospital regarding defective Vitek TMJ implants surgically placed by oral surgeons at the hospital in the mid-1980s.

The trial was bifurcated to determine liability.

The court found that the claims of three plaintiffs were statute-barred under the strict two-year limitation period in the Public Hospitals Act, as the discoverability principle did not apply.

For the remaining plaintiff, the court held the hospital was not negligent in credentialing the surgeons, obtaining consent, or failing to recall patients, as those duties rested with the physicians.

However, the hospital breached its duty of care as a purchaser by failing to inquire with Health Canada whether the implants had a required Notice of Compliance.

The court apportioned fault at 5% to the hospital, 50% to the non-party manufacturer (Vitek), 25% to the non-party distributor (Instrumentarium), and 20% to the settling oral surgeons.

The defendant dentist brought a motion for summary judgment to dismiss the plaintiff's dental malpractice action on the basis that it was commenced beyond the two-year limitation period.

The court held a mini-trial to determine the issue of discoverability.

The plaintiff argued he only discovered the claim after a consultation with another dentist on June 15, 2010, while the defendant argued the claim was discoverable earlier when the plaintiff sought treatment from other dentists for ongoing issues.

The court found that a reasonable person in the plaintiff's position would have realized the potential negligence by May 20, 2010, when the tooth treated by the defendant was extracted.

As the action was commenced more than two years after this date, the motion was granted and the action dismissed.