S. Novello v. Glick et al. D. Novello v. Glick et al.

[Indexed as: Novello v. Glick]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Horkins J.

February 9, 2016

129 O.R. (3d) 275 | 2016 ONSC 975

Case Summary

Limitations — Discoverability — Plaintiff suffering complications from dental work performed by defendant on March 14, 2014 — Plaintiff commencing negligence action on May 1, 2014 — Action statute-barred — Motion judge erring in finding that limitation period started to run only when doctor-patient relationship was terminated — Plaintiff not [page276] filing any evidence to rebut presumption in s. 5(2) of Limitations Act that he discovered claim on day that act or omission that caused damage took place — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(2).

The plaintiff suffered complications as a result of dental work performed by the defendant on March 14, 2014. He commenced an action for damages for negligence on May 1, 2014. His wife also sued the defendant for damages arising from the plaintiff's injuries. The defendant brought motions in each action to strike the claims on the basis that they were statute-barred. The motion judge found that the limitation period did not start to run until the doctor-patient relationship was terminated on May 16, 2012, and that the actions were not statute-barred. The defendant appealed.

Held, the appeals should be allowed.

There is no blanket rule that the limitation period in medical malpractice actions starts to run on the date the doctor-patient relationship is terminated, and there were no facts in this case that would support a finding that the limitation period did not start to run until May 16, 2012. The motion judge failed to consider the presumption in s. 5(2) of the Limitations Act, 2002 that a claim is presumed to have been discovered on the day that the act or omission that caused the damage took place. The plaintiffs filed no evidence to rebut that presumption. The limitation period started to run on March 14, 2012. The actions were statute-barred.

Brown v. Baum, [2015] O.J. No. 1150, 2015 ONSC 849 (S.C.J.); Tremain v. Muir (Litigation guardian of), [2014] O.J. No. 127, 2014 ONSC 185 (S.C.J.), consd

Other cases referred to

Clemens v. Brown, [1958] O.J. No. 487, [1958] O.W.N. 200, 13 D.L.R. (2d) 488 (C.A.); Soper v. Southcott (1998), 39 O.R. (3d) 737, [1998] O.J. No. 2799, 111 O.A.C. 339, 43 C.C.L.T. (2d) 90, 80 A.C.W.S. (3d) 1087 (C.A.); Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, 262 O.A.C. 349, 90 C.P.C. (6th) 101, 191 A.C.W.S. (3d) 774; Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, [2009] O.J. No. 2003, 2009 ONCA 415, 73 C.P.C. (6th) 8, 307 D.L.R. (4th) 218, 73 C.C.L.I. (4th) 255, 257 O.A.C. 29

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 5[as am.], (2)

APPEALS from the orders dismissing motions to strike claims as statute-barred.

Spencer Toole, for plaintiff/respondent.

Eric S. Baum, for defendants/appellants.

HORKINS J.: —

Introduction

[1] On May 1, 2014, the plaintiff (Mr. Novello) commenced a claim in the Small Claims Court (SC-14-001291-00) against [page277] Dr. David Glick and David Glick Dentistry Professional Corporation ("Dr. Glick"). Mr. Novello alleges that he suffered injuries as a result of the dental work that Dr. Glick performed from November 2011 to June 2012.

[2] In a separate claim (SC-14-001290-00), the plaintiff's wife (Dawn Novello) sued the same defendants seeking damages arising from her husband's injuries allegedly caused by Dr. Glick's dental work. This claim was also issued in Small Claims Court on May 1, 2014.

[3] On February 17, 2015, Dr. Glick brought an identical motion in each claim seeking to strike the claims on the basis that they were statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Dr. Glick argued that the two-year limitation period expired two years after the treatment in question that happened on March 14, 2012. The claims were issued on May 1, 2014 after the expiry of the limitation period and therefore should be dismissed.

[4] Deputy Judge Richardson decided that the limitation period did not start to run until the completion of Dr. Glick's follow-up appointment on May 16, 2012. As a result, the claims were not statute-barred and he dismissed Dr. Glick's motions.

[5] Dr. Glick appeals the final order of Deputy Judge Richardson in each claim. He states that the deputy judge erred in his interpretation and application of the limitation period in the Limitations Act, 2002.

[6] The facts set out below are identical in each claim. These reasons apply to Dr. Glick's appeal in both claims.

The Facts

[7] Dr. Glick is a periodontist who treated Mr. Novello on March 14, 2012. On that occasion, Dr. Glick inserted dental implants in the lower left quadrant of Mr. Novello's mouth. After the March 14, 2012 treatment, Mr. Novello developed a post-treatment infection that was unresponsive to antibiotics.

[8] Dr. Glick's clinical notes record the following during March 2012. A "post op." visit took place on March 19. On March 22, the clinical note in part states: "Pain and swelling getting worse, saw family physician today." Mr. Novello was continued on antibiotics. On March 23, Dr. Glick spoke to Mr. Novello. The note states "slowly improving". A "4th dose of Clindamycin daily" was added. On March 25, Dr. Glick saw Mr. Novello in his office. The "swelling was still very hard and sore". The medication was changed. On March 26, Dr. Glick spoke to Mr. Novello. He was "able to eat and starting to feel better day by day". On March 27, [page278] Dr. Glick contacted Dr. Reinish and discussed Mr. Novello's case with him. He referred Mr. Novello to Dr. Reinish.

[9] A letter from Dr. Reinish dated July 10, 2012 provides a summary of his care of Mr. Novello from March 27, 2012 to June 11, 2012.

[10] On March 27, Dr. Reinish admitted Mr. Novello into hospital and performed an extraoral incision and drain of the sublingual, submandibular and submental spaces. Mr. Novello spent about five days in the hospital on intravenous antibiotics. He had a normal post-operative course.

[11] On April 2 and 9, 2012, Mr. Novello attended at Dr. Reinish's office for a follow-up. On April 9, Mr. Novello was complaining of acute pain. Dr. Reinish determined that one of the implants was mobile. As a result, it was removed under sedative anesthetic.

[12] Mr. Novello continued to be followed by Dr. Reinish. Since the infection was still present, Dr. Reinish preformed a second incision and drain on April 13, 2012. Mr. Novello had a normal post-operative course.

[13] On April 17 and 26, 2012, Dr. Reinish examined Mr. Novello. At this point, Dr. Reinish recorded that Mr. Novello's mandibular range of motion had returned to normal along with his general health and physical energy.

[14] During the above time frame, Dr. Glick followed Mr. Novello's treatment and recovery through telephone calls with Dr. Reinish and Mr. Novello.

[15] On April 30, 2012, Dr. Glick made the following clinical note:

Sergio called. Complete resolution of infection, small hard nodule in neck, most likely scar tissue. Dr. Reinish continues to follow up. Sergio will come in next week to follow up.

[16] On May 16, 2012, Mr. Novello saw Dr. Glick for a follow-up appointment. Dr. Glick's clinical note states: "Clinical exam, area healing well. Patient has concerns about soreness remaining in neck. All looks to be normal healing."

[17] Mr. Novello saw Dr. Reinish on June 11, 2012. On this occasion, Dr. Reinish observed that there was "no evidence of post-operative infection. The floor of the mouth was soft with no resultant scar tissue from the rather significant infection in the area."

[18] The last notation in Dr. Glick's clinical notes is dated July 19, 2012. This note states that "Dawn Novello picked up copy of chart."

[19] In Mr. Novello's claim he seeks damages of $25,000. Mrs. Novello seeks the same amount of damages. They both plead [page279] that this is a claim in negligence and malpractice against Dr. Glick for injuries resulting from dental work performed on Mr. Novello. Further, they plead that the work and or resultant injuries occurred between November 2011 to June 2012. The particulars are set out in Sch. A to the claim. Paragraphs 5 and 6 are relevant:

5. The Plaintiff underwent a series of procedures involving implant dental work, which procedures were performed by Dr. Glick.

6. The Plaintiff claims in negligence and malpractice that . . . Dr. Glick failed to provide competent or otherwise reasonable care in the provision of these services or in properly diagnosing the resultant complications or in subsequently treating the Plaintiff for those complications which resulted in severe life threatening injury to the Plaintiff, necessitating extended-stay hospitalization, multiple emergency corrective surgeries, repeated doctor visits and an extended period of convalescence lasting until June 2012 during which the Plaintiff was effectively incapacitated.

Standard of Review

[20] The standard of review on an appeal from the order of a judge is correctness for an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle (see Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, [2009] O.J. No. 2003, 2009 ONCA 415, at para. 1; Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, at para. 28).

The Limitations Act

[21] The claims are subject to the two-year limitation period in s. 4 of the Limitations Act, 2002. It states as follows:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[22] It is agreed that the limitation period runs from the date the claim is discovered. Section 5 of the Limitations Act, 2002 states when a claim is discovered and is subject to a presumption in s. 5(2):

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission, [page280]

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[23] The plaintiff has the burden of proving that the cause of action arose within the limitation period (see Clemens v. Brown, [1958] O.J. No. 487, 13 D.L.R. (2d) 488 (C.A.) at p. 491 D.L.R.; Soper v. Southcott (1998), 39 O.R. (3d) 737, [1998] O.J. No. 2799 (C.A.), at para. 14).

The Decision

[24] The reasons of the deputy judge are set out in the following paragraph:

The dental surgery was performed on March 14th, 2012. The oral surgeon was seen on March 27th, 2012 and there was a consultation back with Dr. Glick on May 16th, 2012 and the claim was issued on May 1st, 2014. It is my ruling that the consultation on May 16th, 2012 was a normal and necessary follow up and continuation to the surgery. I take judicial notice of the fact that all surgeries require follow ups and reviews and it is part of the full process. I do not accept Mr. Baum's allegation that the limitation period runs from the date of surgery so in my view it runs from the date of the termination of the relationship, which goes up to and includes any follow up, which in this case was May 16th. So it is my view that the claims are not statute barred. Discoverability would be the date that all necessary follow up was completed. There is no evidence that the date of surgery was the date of discovery.

Analysis

[25] Dr. Glick states that the deputy judge erred in law in his interpretation and application of ss. 4 and 5 of the Limitations Act, 2002. I agree.

[26] First, the deputy judge's decision that the limitation period runs from the date the relationship was terminated is contrary to law and an error.

[27] Second, the deputy judge did not consider the presumption in s. 5(2). Since Mr. and Mrs. Novello did not file any evidence to show when they discovered the claim, the presumption of discovery is triggered. The failure to consider the application of s. 5(2) is an error in law. The presumption in s. 5(2) applies [page281] unless the plaintiff proves "the contrary". Mr. and Mrs. Novello did not prove the contrary.

[28] Mr. and Mrs. Novello did not file an affidavit in response to Dr. Glick's motion. Dr. Glick's counsel filed an affidavit that attached Dr. Glick's clinical notes and records and a reporting letter dated July 12, 2012 from Dr. Reinish to Dr. Bernstein (who appears to be Mr. Novello's family doctor). A copy of this letter was sent to Dr. Glick. This letter and the clinical notes provide the factual sequence of events that are outlined above. There was no additional evidence before the deputy judge.

[29] There is no legal principal that fixes the commencement of a limitation period on the date the doctor patient relationship terminates. As explained in Brown v. Baum, [2015] O.J. No. 1150, 2015 ONSC 849 (S.C.J.), at para. 52, it depends on the facts of the case:

Each case will, of course, turn on its particular facts. It will not be every case in which the fact that a physician-patient relationship is ongoing that it would be appropriate to toll the running of the limitation period until that relationship has terminated. Nor in every case where there is a series of surgical procedures undertaken will time not run until the last of those procedures has been undertaken. It will depend on the facts and circumstances.

[30] In medical malpractice claims, the case law reveals two situations where the tolling of a limitation period is suspended until the doctor patient relationship is over. Neither situation is triggered on the facts of these claims.

[31] In Tremain v. Muir (Litigation guardian of), [2014] O.J. No. 127, 2014 ONSC 185 (S.C.J.), the court acknowledged that a doctor's ongoing medical interventions may prevent the plaintiff or his representative from proceeding with an action or retaining counsel. In Tremain v. Muir, the plaintiffs filed extensive evidence, but were unable to prove that medical interventions prevented them from proceeding with an action. As a result, the action was statute-barred. Dr. Glick did not provide ongoing medical interventions. He turned the care of Mr. Novello over to Dr. Reinish.

[32] In Brown v. Baum, the defendant doctor continued for over a year after the initial surgery to achieve a better outcome for the plaintiff. The court stated (at para. 53) "[t] here was no doubt about what he was doing or why he was doing it. There is no indication in the evidence that the defendant was motivated by a concern to minimize his potential liability to the plaintiff." The court found it "would be unreasonable and inappropriate in such circumstances to start the two year limitation clock running against [the plaintiff] while the defendant's good faith efforts to achieve a medical remedy continued". Dr. Glick did [page282] not attempt to achieve a better outcome for Mr. Novello through continued treatment. Instead, he turned the care of Mr. Novello over to Dr. Reinish.

[33] The deputy judge did not consider whether the facts before him fell within the circumstances considered in Tremain v. Muir or Brown v. Baum. He simply stated his view that the limitation period runs from the date the relationship ended. This is an error in law because there is no blanket rule that in all medical malpractice cases, the limitation period runs from the date the relationship ends.

[34] Further, if the deputy judge had considered whether the facts before him engaged the examples in Tremain v. Muir or Brown v. Baum, the result would have been obvious. There are no facts in this case that would support a finding that the limitation period should not start to run until the doctor patient relationship terminated.

[35] Pursuant to s. 5(2), the plaintiffs are presumed to know all "of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place" (emphasis added).

[36] The alleged act or omission occurred on March 14, 2012, when Dr. Glick inserted the dental implants. The evidence does not support any other act or omission. Shortly after this procedure, Mr. Novello developed an infection and was hospitalized. There is no factual basis for finding that the act or omission happened when Dr. Glick last saw Mr. Novello on May 16, 2012. This was merely a follow-up appointment. By this time, the problems that allegedly arose from the insertion of the dental implants on March 14, 2012 had been treated by Dr. Reinish and Mr. Novello was "healing well".

Conclusion

[37] In summary, Deputy Judge Richardson erred in law when he denied Dr. Glick's motion to dismiss the claims as statute-barred.

[38] I find that the two-year limitation period started to run on March 14, 2012. As a result, the claims that were issued on May 1, 2014 are statute-barred. The claims of Mr. and Mrs. Novello are dismissed.

[39] The parties have agreed that $2,500 shall be the costs of the appeal for both claims. Dr. Glick was successful on this appeal and is entitled to his costs. Each plaintiff shall pay Dr. Glick costs fixed at $1,250, all inclusive.

[40] Dr. Glick also seeks costs of the two claims. Counsel were not able to provide submissions at the end of the hearing. They [page283] are encouraged to resolve this issue. If the issue cannot be resolved, the parties shall exchange brief written costs submissions and deliver them to me by March 11, 2016.

Appeals allowed.

End of Document