Court File and Parties

COURT FILE NO.: 7959/12 DATE: 2016/05/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAMELA BUYS AND: CATHY SHEILA FRANK, JAMES SCOTT BRADLEY MARTIN, NANCY WHITMORE, WILLIAM FRYDMAN, PAUL COLLIN, DR. RED, DR. BLUE and ST. THOMAS ELGIN GENERAL HOSPITAL AND: CATHY SHEILA FRANK, JAMES SCOTT BRADLEY MARTIN, NANCY WHITMORE, WILLIAM FRYDMAN, PAUL COLLIN, DR. RED, DR. BLUE and ST. THOMAS ELGIN GENERAL HOSPITAL AND: DALE v. FRANK et. al. (Court file no. 8756-12); PETTIT v. FRANK et. al. (8674/12); LESAK v. FRANK et. al. (8255/12); GLADKOWSKI v. FRANK et. al. (8228-12); NOLAN v. FRANK et. al. (8903/12); MOREAU v. FRANK et. al. (8262/12); and POFF v. FRANK et. al. (1575/13)

Counsel: J. Dobson and K. Kosacka, counsel for the plaintiff C. Brandow and S. Martens, counsel for the Defendants Cathy Sheila Frank, James Scott Bradley Martin and John Alexander McKenzie

HEARD: January 18, 19 and 20, 2016

GORMAN J.

Overview of the Proceedings

1The Defendants, Cathy Sheila Frank (“Dr. Frank”), James Scott Bradley Martin (“Dr. Martin”) and John Alexander McKenzie (“Dr. McKenzie) bring a motion for summary judgment in the above-named actions as a result of the expiration of the limitation period as prescribed in the Limitations Act, 2002, S.O. 2002, c. 24.

2Each of the above-named Plaintiffs received treatment from Dr. Frank (and others) and claim that they have suffered loss owing to her negligence and breach of fiduciary duty. The dates of their respective medical treatments vary (and will be discussed further in this judgment) but it is agreed that in each case, the loss suffered occurred well outside the limitation period.

3Plaintiff counsel issued a press release on November 4, 2011 and held a media event on November 7, 2011, which included statements about three lawsuits commenced by women arising out of surgical treatment by Dr. Frank, who experienced perforations of bowel, bladder and ureter; a fourth woman came forward regarding internal bleeding. It was also noted that a complaint had been filed with the College of Physicians and Surgeons of Ontario (“CPSO”). There was no mention of patient complaints about Dr. Frank prior to 2009.

4The above-named Plaintiffs commenced their respective actions against the Defendants as a result of having read, or heard of a press release issued by Legate & Associates November 4, 2011, and the resultant media coverage.

5The issue in this proceeding is centred on the principle of “discoverability”.

The Facts and Circumstances of the Plaintiffs

6None of the Plaintiffs have served any expert report in support of their allegations, nor have they advised that any expert opinion has been obtained.

Pamela Buys

7Ms. Buys became a patient of Dr. Frank, who carried on practice as an obstetrician and gynecologist at St. Thomas Elgin General Hospital (“STEGH”) in November 2006 on referral from her family physician.

8Ms. Buys attended at STEGH for an induction of labour on February 22, 2007. As a result of a failure to progress, and an unstable fetal heart rate, Dr. Frank recommended, and Ms. Buys provided written consent, for caesarean section (“C-section”). The C-section was performed by Dr. Frank; Dr. Martin acted as surgical assistant.

9Immediately after the C-section, Ms. Buys experienced a post-partum hemorrhage. [1]

10Dr. Frank attempted to stop the hemorrhage, however was unsuccessful. She discussed the option of a hysterectomy, and Ms. Buys provided her consent, and one was performed.

11Ms. Buys was transferred to London Health Sciences Centre (“LHSC”) and then returned to STEGH later that day. She was discharged on February 28, 2007.

12Ms. Buys underwent a CT scan of her pelvis and abdomen on March 15, 2007 which depicted a swollen kidney, suggesting that urine was not draining properly through the left ureter to her bladder.

13Dr. Frank saw Ms. Buys again in her office on March 19, 2007.

14Ms. Buys saw a urologist, Dr. Cheng on April 5, 2007 for urinary problems that arose after the C-section and hysterectomy. He inserted a stent to allow urine to pass properly. The stent was removed on July 17, 2007. No further obstruction was noted.

15All of the records of Ms. Buys’ labour, C-section and hysterectomy, including the involvement of Drs. Frank and Martin were available by April 23, 2007.

16Ms. Buys learned of the press release, approached Plaintiff counsel, and commenced this action against Dr. Frank and Dr. Martin by way of Statement of Claim issued on August 9, 2012.

17In the Statement of Claim, Ms. Buys claims that she suffered the following losses or injuries: a hemorrhage, an emergency hysterectomy, significant flank pain, urinary difficulties, and additional surgical investigation and treatment.

Melanie Dale

18On January 31, 2006, Ms. Dale was approximately seven weeks pregnant. On February 22, 2006, an ultrasound was performed and failed to detect a fetal heartbeat. Ms. Dale was diagnosed with having suffered a miscarriage.

19Dr. Frank was asked to conduct a dilation and curettage (“D & C”). Ms. Dale underwent same as performed by Dr. Frank at STEGH on February 23, 2006.

20On March 7, 2006 Ms. Dale attended at the emergency room of the STEGH complaining of a tender abdomen. She was examined, and found to have a gestational sac in her uterus. She was told that it needed to be removed. This came as a surprise to Ms. Dale as she understood that that had been the purpose of the February 23, 2006 D & C.

21Ms. Dale attended a post-operative follow-up on March 9, 2006. At that time she reported ongoing bleeding, with clots. Dr. Frank ordered an ultrasound and blood work, and discussed the possibility of another D & C.

22The ultrasound was performed on March 16, 2006. It revealed that there was a gestational sac in the uterus, suggesting that the first D & C had not successfully removed the products of conception.

23Ms. Dale underwent a diagnostic hysteroscopy, a repeat D & C and biopsies of the endometrium by Dr. Frank on March 17, 2006.

24Ms. Dale had a final follow-up appointment with Dr. Frank on March 30, 2006. At this appointment, Ms. Dale attests that Dr. Frank made inappropriate and/or insensitive remarks. She was very unhappy with Dr. Frank.

25All of the records of the D & C’s on February 23rd and March 17, 2006 and the records of appointments with Dr. Frank were available by April 19, 2006.

26She contacted Plaintiff counsel, and a Statement of Claim was issued November 30, 2012. In the Statement of Claim, Ms. Dale claims that she suffered the following losses or injuries: a second surgery (the second D & C) and psychological stress.

Patricia Pettit

27Ms. Petit underwent a laparoscopically assisted vaginal hysterectomy (“LAVH”) performed by Dr. Frank on December 22, 2006. Dr. Frank was assisted by Dr. McKenzie.

28Prior to undergoing the procedure, Ms. Petit spoke with a friend who had had a hysterectomy and was told that it took about two weeks for her friend to get better. Dr. Frank told Ms. Petit that her own recovery would take two to six weeks.

29Dr. Frank assured Ms. Petit that she would be home for Christmas Eve. Ms. Petit understood the procedure to be simple and straightforward and that she would be discharged the day following surgery.

30Shortly after the LAVH, Ms. Petit was found to have low hemoglobin and was transferred to the intensive care unit of STEGH. Over the next two days her hemoglobin continued to decrease.

31On December 24, 2006 Dr. Frank was notified of the low hemoglobin finding and arranged for a laparoscopy.

32Ms. Petit was aware that a second surgery was required on an emergency basis and signed a consent form. She was very upset that she would not be home for Christmas Eve.

33Ms. Petit underwent a laparoscopy with cautery, drainage and irrigation of a hematoma at STEGH by Dr. Frank on December 24, 2006. She was discharged home on December 27, 2006.

34Ms. Petit testified on discovery that she did not expect to be placed in the intensive care unit, to have to undergo a second surgery, to suffer so much pain after the surgery, to require full-time care for several weeks post-surgery or to have a full open incision (as opposed to just small holes). She experienced all of this post-surgery.

35All of the records of the LAVH on December 22, 2006 and the records of the inpatient care received by the Plaintiff from December 22, 2006 until December 27, 2006, including Dr. Frank and Dr. McKenzie’s involvement were available by February 21, 2007.

36Ms. Pettit became aware that other women were alleging that they had suffered injuries following LAVH surgery by Dr. Frank when she spoke with a friend, Ms. Debbie Cernanec in August 2011.

37In August 2011, the Plaintiff learned from Ms. Cernanec that she was seeking the advice of Legate & Associates along with two other women. Ms. Pettit understood that Ms. Cernanec and the other women had been treated by Dr. Frank with LAVHs. She did not learn specifics about these alleged injuries.

38After her conversation with Ms. Cernanec, Ms. Pettit conducted research on the internet in relation to Dr. Frank. She learned:

a) There was an allegation that Dr. Frank had a pattern of substandard care; b) There was an allegation that Dr. Frank’s complication rate exceeded the norm; c) Dr. Frank had restrictions on her licence; and d) Dr. Frank’s standard of care was in question in other patient’s care. [2]

39None of what Ms. Pettit learned from Ms. Cernanec, nor through her independent research related to her own care. Nor was there any new information that Dr. Frank may have failed to meet the standard of care vis-á-vis Ms. Pettit.

40She contacted Plaintiff counsel, and a Statement of Claim was issued November 21, 2012.

41In the Statement of Claim she alleges that she suffered the following loss or injuries: post-operative bleeding, a second surgery, and post-operative pain.

Diane Lesak

42Dr. Frank first saw Ms. Lesak on May 4, 2006 on a referral from the emergency physician at STEGH for complaints of abdominal pain. Dr. Frank conducted an assessment and discussed the result with Ms. Lesak.

43Ms. Lesak returned to Dr. Frank’s office on June 22, 2006. She continued to complain of abdominal pain. Dr. Frank repeated an ultrasound on June 27, 2006. The ultrasound report referenced a cystic area within the endometrium.

44Ms. Lesak had a follow-up appointment on June 28, 2006. Dr. Frank explained the ultrasound results and documented that she advised Ms. Lesak that she likely had adenomyosis and a small area of active endometrium after an ablation Ms. Lesak had undergone before consulting Dr. Frank. Dr. Frank discussed options including treatment with medication of a LAVH. Ms. Lesak opted for the LAVH and signed the necessary consent forms.

45Dr. Frank performed the LAVH at STEGH on August 28, 2006 with Dr. McKenzie assisting. The LAVH was recorded as having been uneventful except for some bleeding which was dealt with intra-operatively.

46Following the LAVH, Ms. Lesak was placed in the recovery room. She was found to have low blood pressure and low hemoglobin. She was returned to the operating room where another gynecologist, Dr. Roe conducted a laparotomy and dealt with the bleeding vessels. Dr. McKenzie assisted.

47While in STEGH, Ms. Lesak was referred to an internist to be assessed for the possible repercussions of the low blood pressure and hemoglobin.

48Ms. Lesak was discharged from STEGH on September 1, 2006 with instructions to follow up with Dr. Frank in one or two weeks.

49Later in the day on September 1, 2006 Ms. Lesak returned to the STEGH emergency room. She complained that she felt light-headed and that her stomach was hard to the touch. She was sent home with a prescription for a laxative.

50Ms. Lesak continued to see Dr. Frank following her surgeries. At the first appointment Dr. Frank explained that she must have torn an artery when she cauterized a fibroid. Ms. Lesak did not know that she had fibroids, as she had not been told this prior to her LAVH.

51Ms. Lesak asked Dr. Frank if significant bleeding happened often with the LAVH. Dr. Frank to her no that it had never happened to her. Ms. Lesak believed Dr. Frank’s explanation, concluding that it must have been a weakness in her own body that resulted in the bleeding.

52On September 25, 2006 Ms. Lesak attended at her family physician. She complained of vaginal discharge, pelvic pain, light-headedness and abdominal pain since her surgery by Dr. Frank. Her family physician documented anxiety, and prescribed medication to deal with it.

53All of the records of the LAVH and in-patient care from August 28, 2006 to September 1, 2006 including the involvement of Dr. Frank and Dr. McKenzie, and the records of the pre-surgery appointments with Dr. Frank were available by September 18, 2006.

54Ms. Lesak became aware of the restrictions on Dr. Frank’s licence and that her standard of care was in question when she read information on the internet and heard it on the news following the above-noted press release. She contacted Plaintiff counsel, and a Statement of Claim was issued September 21, 2012.

55In the Statement of Claim, the Plaintiff claims that she suffered the following losses or injuries: bleeding, emergency surgery, vertigo and pelvic pain.

Rachel Gladkowski

56Ms. Gladkowski became a patient of Dr. Frank on a referral from her family physician for prenatal care in June 2005. She was 19 years old, and this was her first pregnancy.

57The Plaintiff attended the STEGH for an induction of labour on August 7, 2005.

58On admission, her blood work indicated that she had a high white blood cell count. She was not advised of this fact.

59As her labour failed to progress, Dr. Frank, assisted by Dr. McKenzie, performed a Caesarian section (“C-section”) on August 8, 2005.

60After the C-section, Ms. Gladkowski had significant abdominal pain and a fever. The fever persisted for several days. The pain continued and she had difficulty urinating.

61Ms. Gladkowski was still in hospital when, on August 15, 2005 she underwent a CT scan which revealed an abscess in her lower abdomen.

62Dr. Roe performed a laparotomy to drain the intra-abdominal abscess later that day. Dr. McKenzie was the surgical assistant.

63Before this surgery, Ms. Gladkowski heard nurses say that they had never seen something like what had happened to her, in about 20 years.

64After the surgery performed by Dr. Roe, the Plaintiff continued to have abdominal pain, fever, shortness of breath and low blood pressure. She was transferred to London Health Sciences Centre on August 17, 2005. She remained in hospital until September 19, 2005.

65Dr. Frank saw Ms. Gladkowski for a post-partum assessment on September 29, 2005. Dr. Frank saw the Plaintiff for various issues in July 2006, September 2006 and August 2009. She referred Ms. Gladkowski to Dr. Vilos, and obstetrician on August 20, 2009, and has since had no interaction with her.

66All of the medical records of the labour and delivery on August 7 and 8, 2005 and the records of the in-patient care received by the Plaintiff from August 8, 2005 until August 17, 2005, including the involvement of Dr. Frank and Dr. McKenzie, were available to the Plaintiff by August 18, 2005.

67The Plaintiff became aware of the restrictions on Dr. Frank’s licence and that her standard of care was in question when she read information on the internet and heard it on the news following the above-noted press release.

68She contacted Plaintiff counsel, and a Statement of Claim was issued September 18, 2012.

69In the Statement of Claim, the plaintiff claims that she suffered the following losses or injuries: post-operative complications (including peripheral edema, a distended abdomen, infection, and significant pain), further surgery, and an extended hospital stay and treatment.

Dawn Nolan

70Ms. Nolan became a patient of Dr. Frank in March 2005 on a referral from her family physician for an ovarian cyst and tender lower left quadrant.

71On March 17, 2005, Ms. Nolan attended upon Dr. Frank and discussed a significant family history of ovarian cysts. Dr. Frank discussed treatment options including (a) doing nothing or (b) a laparoscopic bilateral salpingo-oophorectomy (“BSO”), which is the removal of both ovaries. Ms. Nolan agreed to undergo the BSO.

72Dr. Frank attempted the BSO on July 29, 2005. The right ovary was successfully removed but the left ovary was not. The left ovary was adherent to the left pelvic side wall, and accordingly could not be removed. Dr. Frank communicated this to the Plaintiff.

73Dr. Frank saw Ms. Nolan for a post-operative follow up in August and September 2005. An ultrasound was ordered and the imaging showed a mass in the left side of her pelvis. Dr. Frank discussed treatment options including the surgical removal of the mass. The proposed surgery was to be an open procedure rather than a laparoscopic one.

74Dr. Frank performed the surgical removal of the left-sided mass by laparotomy (a left salpingo-oophorectomy, an “LSO”) on September 22, 2005 at STEGH. Dr. Martin was the surgical assistant. Dr. Frank’s operative notes indicate that the left ovary was removed which had adhered to the pelvic wall.

75Ms. Nolan saw Dr. Frank post-operatively on September 26, 2005 and October 12, 2005.

76Ms. Nolan continued to experience pain and on October 26, 2005 Dr. Frank referred her to Dr. George Vilos, a London-based gynecologist. Ms. Nolan saw Dr. Vilos in January, August and November 2006 for pelvic pain.

77An ultrasound done on Janaury 10, 2006 showed a small hypoechoic mass in the laeral aspect of the pelvis on the left. Dr. Vilos reported that the left ovary remnant or scar tissue from past surgeries could be a possible cause of the pelvic pain.

78All of the records of the BSO and LSO, including Dr. Frank and Dr. Martin’s involvement, and the care provided in Dr. Frank’s office were available by January 10, 2006.

79The Plaintiff became aware of the restrictions on Dr. Frank’s licence and that her standard of care was in question when she read information on the internet and heard it on the news following the above-noted press release.

80She contacted Plaintiff counsel, and a Statement of Claim was issued December 19, 2012 – more than seven years later.

81In the Statement of Claim, the Plaintiff claims that she suffered the following losses or injuries: unsuccessful surgery, a second surgery, and abdominal and pelvic pain.

April Moreau

82The Plaintiff became a patient of Dr. Frank’s in April 2005 on referral from her family physician for a suspected large fundal (uterine) fibroid. Dr. Frank discussed treatment options. Ms. Moreau advised that she was asymptomatic and declined treatment.

83Ms. Moreau next saw Dr. Frank in January 2006 on a referral from her family doctor because the fibroid in her uterus was increasing in size. Dr. Frank discussed treatment options and the Plaintiff consented to a LAVH.

84Dr. Frank, assisted by Dr. McKenzie performed the LAVH surgery at STEGH on April 24, 2006.

85In the recovery room at STEGH following the surgery, Ms. Moreau was found to have decreased hemoglobin and an increasing abdominal mass. Later the same day, Dr. Frank performed a diagnostic laparoscopy during which a clip was place on a blood vessel and the vagina was over-sewn to control the bleeding. Ms. Moreau was discharged home on April 28, 2006.

86Dr. Frank saw Ms. Moreau on May 8, 2006 for a post-operative assessment at which time the Plaintiff reported no further bleeding. Ms. Moreau asked Dr. Frank what had happened, and she was told the LAVH went perfectly fine, and that at no time did Dr. Frank think the Plaintiff was going to die.

87On May 23, 2006 Ms. Moreau saw her family physician, Dr. Floyd. Dr. Floyd recorded that Ms. Moreau was still experiencing some bleeding and that she was stressed regarding the operation and consequence, and was considering pursuing legal advice.

88Dr. Floyd told her that complications happen; that there was room for error, and unfortunately it was her bad luck.

89Ms. Moreau wished to confirm Dr. Floyd’s opinion and contacted a lawyer. She spoke with a woman who may have been the receptionist. Ms. Moreau provided some information as to what had occurred, and the woman on the other end of the phone indicated that there was room for error, complications could happen, and that she was unlikely to win a lawsuit. Ms. Moreau did not attend at the lawyer’s office, or pursue her concerns further.

90All of the records for the LAVH on April 24, 2006 and the records of the in-patient care received by the Plaintiff from April 24-28, 2006, including Dr. Frank and Dr. McKenzie’s involvement were available to the Plaintiff by June 4, 2006.

91The Plaintiff became aware of the restrictions on Dr. Frank’s licence and that her standard of care was in question when she read information on the internet and heard it on the news following the above-noted press release.

92She contacted Plaintiff counsel, and a Statement of Claim was issued September 22, 2012 – more than seven years later.

93In the Statement of Claim, the plaintiff claims that she suffered the following losses or injuries: internal bleeding, injuries to her chest, and emergency repair surgery.

Lidija Poff

94Ms. Poff became a patient of Dr. Frank in November 2006 on referral from her family physician, for lower left quadrant pain.

95On March 29, 2007 an ultrasound was performed and the findings raised the possibility of left ovarian torsion. Dr. Frank discussed medical options with Ms. Poff, including the option of a LSO to remove Ms. Poff’s left ovary.

96On March 29, 2007, Dr. Frank performed surgery to remove Ms. Poff’s left ovary. During the surgery a rectovaginal fistula (a hole in between the vagina and rectum) resulted. Dr. Collins was brought in to repair the defect.

97Ms. Poff experienced a slow recovery until her discharge on April 2, 2007.

98After her discharge from STEGH, and prior to August 24, 2007, Ms. Poff attended at the emergency room of STEGH on one occasion for post-operative complications (pain, vomiting and bleeding). She also had three follow-up appointments with general surgeon for treatment of the complications she experienced during her surgery.

99Ms. Poff saw Dr. Frank on two occasions during which she expressed complaints of ongoing symptoms. Dr. Frank arranged for Ms. Poff to undergo an examination under anaesthesia (“EUA”).

100On August 24, 2007, Dr. Frank performed the EUA at STEGH. Dr. Frank saw Ms. Poff by way of follow up on September 6, 2007. Dr. Frank recorded that Ms. Poff reported blood in her urine and that she was “pissed off”. Dr. Frank referred her to a urologist.

101On December 27, 2007 Ms. Poff called Dr. Frank and reported bleeding with intercourse. There was no further contact.

102All of the medical records of the LSO on March 29, 2007 ad the records of the medical care provided by Dr. Frank thereafter until December 27, 2007 were available by December 27, 2007.

103Ms. Poff became aware that Dr. Frank’s standard of care had been called into question when she spoke with a friend in or about March or April 2012. She contacted Plaintiff counsel, and a Statement of Claim was issued August 21, 2013.

104In the Statement of Claim, the plaintiff claims that she suffered the following losses or injuries: post-operative pain, nausea and vomiting, vaginal discharge, pelvic pain, incontinence, and dyspareunia.

The Law

The Test for Summary Judgment

105Rule 20.04 of the Rules of Civil Procedure outlines the test by which the court may grant summary judgment:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

106The approach to be taken by the court on a motion for summary judgment has now been clearly articulated by the Supreme court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7. Speaking for the court, Karakatsanis, J. stated at paras. 47-51:

47 Summary judgment motions must be granted whenever there is no genuine issue requiring a trial (Rule 20.04(2)(a)). In outlining how to determine whether there is such an issue, I focus on the goals and principles that underlie whether to grant motions for summary judgment. Such an approach allows the application of the rule to evolve organically, lest categories of cases be taken as rules or preconditions which may hinder the system's transformation by discouraging the use of summary judgment.

48 The Court of Appeal did not explicitly focus upon when there is a genuine issue requiring a trial. However, in considering whether it is against the interest of justice to use the new fact-finding powers, the court suggested that summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points. These are helpful observations but, as the court itself recognized, should not be taken as delineating firm categories of cases where summary judgment is and is not appropriate. For example, while this case is complex, with a voluminous record, the Court of Appeal ultimately agreed that there was no genuine issue requiring a trial.

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

51 Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

107A party responding to a summary judgment motion must demonstrate that there exists a genuine issue for trial. As the court stated in Canadian Imperial Bank of Commerce v. Ryan Ernest Mitchell, 2010 ONSC 2227 at para.18:

[…] the responding party may not simply restate mere allegations contained in its pleadings. He must instead set out in affidavit material coherent evidence of specific facts showing that there is a genuine issue requiring a trial. It is not sufficient to say that more and better evidence will or might be available at trial. While there is an onus on the moving party to establish that there is no genuine issue requiring a trial, the case law also resolutely establishes that the respondent must “lead trump or risk losing”: Rule 20.02(2); Pizza Pizza Ltd. v. Gillespie et al. (1990), 75 O.R. (2d) 225 (Ont. Ct.); Irving Ungerman Ltd. v. Galanis (1994), 4 O.R. (3d) 545 at 552 (C.A.); High-tech Group Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97 (C.A.).

The Limitation Period

108Section 4 of the Limitations Act, 2002, states that unless it provides otherwise, proceedings shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

109The purpose of the Act is:

(i) To create a two year period within which a lawsuit must be started, which period starts “from the date the person finds out, or should reasonably have found out, about the injury, loss or damaged that was experienced and who contributed to it”; (ii) To establish clear and fair time limits that balance the interests of plaintiffs and defendants to support a fair and accessible justice system; (iii) To enhance public understanding of the law as the previous limitation statute was a barrier to justice for many; and (iv) To reduce confusion by reducing the number of limitations periods and reducing exceptions. [3]

110Each of the Plaintiffs concede that their respective proceedings was not commenced before the second anniversary of the event that resulted in their physical injury, rather they rely on the principle of “discoverability”. Each Plaintiff maintains that it was only upon hearing the media coverage of allegations against Dr. Frank, did they discover their cause of action.

111The principle of “discoverability” is detailed in Section 5 of the Act:

Discovery

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, (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).

Presumption

(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.

112The Limitations Act does not require knowledge of a negligent act, but only an “act or omission” that caused or contributed to the injury, loss or damage.

113The discoverability test is an objective one. The standard by which the Plaintiff’s conduct is judged is what a prudent person in the plaintiff’s position would do in seeking out and acquiring facts: Castronovo v. Sunnybrook & Women’s College Health Sciences Centre at para. 54.

114The principle of discoverability provides that a cause of actions arises when the material facts on which it is based have been, or ought to have been discovered. This is a fact-driven enquiry. The question is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence: Lawless v. Anderson, 2011 ONCA 102 at paras. 22-23; Soper v. Southcott, 1998 CarswellOnt 2906 at para 13; Brown v. Wahl, 2015 ONCA 778 at paras. 7-8.

115Where the plaintiff is aware of sufficient particulars, to reasonably call into question the conduct of the defendant, the limitation period begins to run.

116The discovery of the claim does not depend on an awareness of the totality of the evidence, nor the precise cause of an injury nor the extent to which a loss may have been suffered. The plaintiff need only possess those facts necessary to assert allegations against the defendant: McSween v. Louis, [2000] O.J. No. 2076 (C.A.) at para. 51.

117The Plaintiffs did not require an expert opinion in order to advance their claims. As the court stated in Lawless v. Anderson, 2011 ONCA 102, [2011] O.J. No. 519 (C.A.) at para. 28:

While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases: see McSween v. Louis. Moreover, a formal written medical opinion is not required - what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. This point was well expressed in Gaudet et al. v. Levy et al. (1984), 47 O.R. (2d) 577 (H.C.J.), at p. 582:

It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him. [Emphasis added]

118Furthermore, for a medical opinion to extend the running of the limitation period, the opinion must contain new information about the medical care not previously available to the prospective Plaintiff: Morton v. Cowan, 2001 CarswellOnt 4226 (SCJ), aff’d 2003 CarswellOnt 3095 (C.A.).

119Recently, the Court of Appeal acknowledged that information in the media and on a law firm’s website may provide necessary information to assist people to determine whether they should consult a lawyer about a potential claim: Legate v. Frank, 2015 ONCA 631, [2015] O.J. No. 4819 (C.A.) at para. 45.

120The issue of when a claim is discovered is completely separate from the process of obtaining evidentiary support to strengthen the claim.

121As the court stated in Soper v. Southcott (supra) at para. 21:

Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence in requesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period.

122Recently, in Fennell v. Deol et al., 2016 ONCA 249 at para. 23, the court stated:

Due diligence is not referred to in the Limitations Act, 2002. It is, however, a principle that underlies and informs limitation periods, through s. 5(1)(b). As Hourigan J.A. noted in Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 42, a plaintiff is required to act with due diligence in determining if he has a claim, and a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a).

123In Soper v. Southcott, [1998] O.J. No. 2799 (C.A.) at para. 13-14, the court stated:

In Findlay v. Holmes, [1998] O.J. No. 2796 (July 3, 1998) this court applied the decision of the Supreme Court of Canada in Peixeiro v. Haberman (1997), 151 D.L.R. (4th) 429 in holding that the discoverability principle postpones the running of the statutory limitation period until the plaintiff knows, or by reasonable diligence could have known, the material facts upon which to bring an action. Further, this court also held, in adopting the reasoning of White J. in Gaudet et al. v. Levy et al. (1984), 47 O.R. (2d) 577 (H.C.J.), that s. 17 of the Act requires the plaintiff to act with reasonable diligence in discovering the material fact or facts upon which to found an action in negligence or malpractice. In Findlay, we stated that:

It is a question of fact depending on the circumstances of the case as a whole, as to when knowledge of the material fact or facts was acquired by the plaintiff. While in many cases, as suggested by White J., the facts will only become known upon receipt of a medical opinion with respect to the applicable standard of care, there will also be cases where the plaintiff will have actual or deemed knowledge of the material facts: immediately after the surgery or treatment, some time later if the results are unexpected but the plaintiff is advised to wait until the problem resolves, or upon receipt of the clinical history.

14 In Aguonie v. Galion Solid Waste Material Inc. (1998), 156 D.L.R. (4th) 222, this court dealt with the proper role of a judge when hearing a motion for summary judgment and the applicability of the discovery rule in relation to the Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8) and 61(4). Speaking for the court, Borins J. (ad hoc) states at p. 229:

• ... the application of the discoverability rule to the facts of a particular case necessarily requires a finding of fact about when the plaintiff discovered the facts in respect to the remedy sought, or, through reasonable diligence, ought to have discovered the facts.

Pamela Buys

124By April 13, 2007, the plaintiff was aware, or ought to have been aware, that:

(a) She had suffered the injuries as claimed in her Statement of Claim; (b) The claimed injuries arose because of the C-section and/or hysterectomy performed on February 22, 2007; (c) The C-section and hysterectomy, as performed on February 22, 2007 were performed by Dr. Frank; (d) That having regard to her injuries a proceeding would be an appropriate course of action.

125The plaintiff may not have been aware of the full extent of her injuries, but she clearly knew that some damage had occurred. Indeed, prior to the performance of the C-section, Ms. Buys did not expect to hemorrhage, nor did she expect to have a hysterectomy and subsequent urinary problems.

126Ms. Buys understood that her bleeding had been the result of the C-section, the hysterectomy was required to stop the bleeding, and that the bleeding was a life threatening emergency. By February 2007 she understood that she had almost lost her life as a result of the bleeding. [4]

127Subsequent to her discharge from hospital she sought treatment from a urologist to address the urinary problems that stemmed from Dr. Frank’s surgical procedures.

128The Plaintiff maintains that she first discovered her cause of action on or about November 4, 2011 after the news media reported information concerning allegations of Dr. Frank’s poor technical skills and restrictions on her licence.

129In cross-examination on her affidavit, Ms. Buys testified that she learned five things when she became aware of the press release which were previously unknown to her:

(a) There were other women who alleged that they had suffered injuries as a result of Dr. Frank’s medical care; (b) Dr. Frank’s standard of care was in question; (c) There was an allegation of a pattern of substandard care attributed to Dr. Frank; (d) There was an allegation of complication rates in excess of the norm; and (e) There were restrictions on Dr. Frank’s licence. [5]

130It should be noted that none of the five facts Ms. Buys learned from the press release, related to the care that had been provided to her. Accordingly, the press release did not provide any new material facts upon which her claim is based.

131I find that the press release must be treated akin to an expert opinion. For the press release to extend the limitation period, it must contain new information not previously known by the Plaintiff.

132In my view the losses claimed in her Statement of Claim, namely: a hemorrhage, an emergency hysterectomy, significant flank pain, urinary difficulties, and additional surgical investigation and treatment were known to Ms. Buys no later than July 17, 2007 when Dr. Cheng removed her urinary stent.

133The information learned from the press release might have provided some evidence in support of some of the particulars of negligence Ms. Buys alleges, but in my view it cannot extend the limitation period.

134The Plaintiff could have requested her medical records as they related to her C-section and hysterectomy at any time following their availability on April 23, 2007. She failed to do so.

135The test for due diligence is assessed in terms of what a prudent person, in the plaintiff’s place would do in seeking out and acquiring facts. In my view the plaintiff has not met this objective standard. She has not demonstrated that she acted with reasonable diligence in discovering her claim.

Melanie Dale

136By March 30, 2006, Ms. Dale was aware, or ought to have been aware that:

a) She had suffered injuries; b) The injuries arose because of the D&C performed on February 23, 2006 and/or the post-operative care received; c) The D&C had been performed by Dr. Frank, and her post-operative appointments had been with Dr. Frank; and d) Having regard to the nature of her injuries and damages, a legal proceeding would be an appropriate remedy.

137Ms. Dale became aware of the restrictions on Dr. Frank’s licence and that her standard of care was in question when she read information on the internet and heard it on the news following the above-noted press release.

138It should be noted that the Plaintiff received obstetrical care by Dr. Frank in 2006. None of the cases mentioned in the press release involved care in 2006, nor did the press release indicate that the cases involved obstetrical care.

139The Plaintiff testified that she learned five things when she became aware of the press release that she did not know previously:

a) there were other women who alleged they had suffered injuries as a result of Dr. Frank’s medical care; b) there was an allegation of a pattern of substandard care; c) Dr. Frank’s standard of care was in question; d) There was an allegation of complication rates in excess of the norm; and e) There were restrictions on Dr. Frank’s licence [6]

140It should be noted that none of the five facts Ms. Dale learned from the press release, related to the care that had been provided to her. Accordingly, the press release did not provide any new material facts upon which her claim is based.

141The test for due diligence is assessed in terms of what a prudent person, in the plaintiff’s place would do in seeking out and acquiring facts. In my view the Plaintiff has not met this objective standard. She has not demonstrated that she acted with reasonable diligence in discovering her claim.

Patricia Pettit

142By December 26, 2006, the plaintiff was aware, or ought to have been aware that:

a) She had suffered the claimed injuries immediately after the LAVH; b) The injuries arose because of the LAVH which had been performed on December 22, 2006; c) It was Dr. Frank who had performed the procedure; d) Having regard to the nature of her injuries and damages a civil procedure would be an appropriate remedy.

143The Plaintiff may not have been aware of the extent of her loss, but she did know that some loss had occurred.

144Even after she spoke with Ms. Debbie Cernanec in August 2011 and conducted internet research, she learned no new information about what had happened to her or what Dr. Frank or Dr. Mckenzie had done or omitted to do.

145She never obtained any information that Dr. Frank had failed to meet the standard of care as it related to her. Therefore the information she obtained from Ms. Cernanec in August 2011 and her subsequent research in September 2011 failed to provide any new information upon which the plaintiff’s claim for discoverability hinges.

146The Plaintiff took no steps to investigate a potential claim against the physicians at any time prior to August 2011, despite having experience significant complications post- surgery.

147Ms. Pettit had previously been employed in a law firm, and in the course of her employment was familiar with requesting records in the custody of someone else. [7]

148The test for due diligence is assessed in terms of what a prudent person, in the plaintiff’s place would do in seeking out and acquiring facts. In my view the Plaintiff has not met this objective standard. She has not demonstrated that she acted with reasonable diligence in discovering her claim.

Diane Lesak

149The Plaintiff has plead that she first discovered her claim on or about November 4, 2011 after the media reported information regarding restrictions on Dr. Frank’s licence and allegations of poor technical skills.

150The Plaintiff received medical treatment form Dr. Frank in 2006. The press release of November 2011, made no mention of any patient complaints about Dr. Frank practice or skills prior to 2009.

151Ms. Lesak testified that between November and December 2011, she became aware of the press release and learned the following:

a) there were other women who alleged that they had injuries from Dr. Frank’s medical care; b) there were questions about Dr. Frank’s standard of care and there was an allegation of a pattern of substandard care; and c) there were restrictions on Dr. Frank’s licence.

152The Plaintiff learned no new information about her own care of treatment. Accordingly, the press release, upon which the Plaintiff hinges her argument regarding discoverability, provided no new and/or material facts upon which her claim is based.

153The press release could have served as evidence in support of some particulars of negligence alleged in the Statement of Claim, but again, it cannot extend the limitation period.

154The Plaintiff was aware, or ought to have been aware of the material facts that give rise to her claim against Dr. Frank no later than the time of her discharge from STEGH on September 1, 2006.

Rachel Gladkowski

155Ms. Gladkowski claims that she first discovered the cause of her injuries on or about November 4, 2011 after the news media reported information containing allegations of Dr. Frank’s poor technical skills and the restrictions on her licence. However, none of the cases mentioned in the press release involved obstetrical care, or care in 2005.

156The Plaintiff testified that she learned five things when she became aware of the press release that she did not know previously:

a) There were other women who alleged they had suffered injuries from Dr. Frank’s medical care; b) At least one of the women had commenced a lawsuit; c) There were questions about Dr. Frank’s standard of care and there was an allegation of a pattern of substandard care; there was an allegation of complication rates in excess of the norm; and d) There were restrictions on Dr. Frank’s licence. [8]

157None of these items were specifically related to her care, nor was there any new information related to what had happened to her while in the care of Dr. Frank. Accordingly, the press release upon which the Plaintiff bases her “discoverability” did not provide her with any material facts upon which her Statement of Claim is grounded.

158The Plaintiff admitted that her reaction to the November 2011 press release was to think that she was not “the only one” injured by Dr. Frank. Ms. Gladkowski had believed for some time that she had been injured by Dr. Frank. [9]

159The Plaintiff was aware, or ought to have been aware of the material facts that give rise to her claim by the time of her discharge from LHSC on September 19, 2005. Nevertheless, she did not issue a Statement of Claim until September 18, 2012.

Dawn Nolan

160The Plaintiff has plead that she first discovered the cause of her injuries on or about November 4, 2011 after hearing the news media report about Dr. Frank.

161The Plaintiff received medical care from Dr. Frank in 2005. The news media report made no mention of any patient complaints prior to 2009.

162The Plaintiff testified that she read an article in the St. Thomas Times Journal that other women who had been treated by Dr. Frank had experienced injuries. She also believed from reading the article that questions surrounded Dr. Frank’s practice and standard of care. [10] However, Ms. Nolan did not receive any information subsequent to the press release that suggested that her care had been factored into allegations that Dr. Frank’s complication rates were above the norm. Accordingly, the press release and the information the Plaintiff learned as a result of it did not provide her with any new information.

163By January 23, 2006 Ms. Nolan possessed the following information:

a) She had had a surgery that was not completely successful; b) She required a second, unexpected surgery, that left her with a larger incision scar than anticipated; c) She had ongoing pelvic pain that she expected would resolve; d) She had suffered injuries as a result of the care she received from Dr. Frank; and e) Dr. Vilos believed that she had the remnant of her left ovary which contributed to her pelvic pain.

164The Plaintiff could have requested her medical records of the BSO and the LSO procedure, including the involvement of Dr. Frank and Dr. Martin at any time on or after January 10, 2006.

165In 2006, Ms. Nolan worked as a secretary in the OPP detachment in St. Thomas, Ontario. She was familiar with Freedom of Information requests for copies of OPP documentation, yet she maintains that it never occurred to her to request her own medical records. [11]

166Ms. Nolan took absolutely no steps from 2006 to November 4, 2011 to investigate her claim or commence litigation.

167The Plaintiff was aware, or ought to have been aware of the material facts that give rise to her claim by January 10, 2006.

April Moreau

168The Plaintiff underwent an LAVH at STEGH, performed by Dr. Frank on April 24, 2006. Dr. McKenzie assisted surgically.

169In the recovering room the Plaintiff was found to have decreased hemoglobin and an increasing abdominal mass. Dr. Frank performed a diagnostic laparoscopy and placed a clip on a blood vessel and over-sewed the vagina to control the bleeding. Ms. Moreau was discharged home on April 28, 2006.

170Ms. Moreau saw her family physician, Dr. Floyd on May 23, 2006. He reported that she was still experiencing bleeding and was considering pursuing legal advice.

171All of the Plaintiff’s medical records of the LAVH performed on April 24, 2006 and the records of the in-patient care received from April 24-28, 2006, including both Dr. Frank and Dr. McKenzie’s involvement were available by June 4, 2006.

172Ms. Moreau contacted a law firm about Dr. Frank in May or June 2006. She spoke with a woman (who may have been the receptionist). She did not attend the law office or pursue further contact.

173The Plaintiff has pled that she first became aware of her claim following the press release in November 2011.

174The Plaintiff testified that she learned three things in November and December 2011 after learning about the press release:

a) Dr. Frank’s standard of care was in question; b) There were restrictions on Dr. Frank’s licence; and c) There were three women who had experienced errors in their operations. [12]

175None of this information was new, or related to what had happened to her while in Dr. Frank and Dr. McKenzie’s care.

176It defies logic to conclude that Ms. Moreau first became aware of her claim in 2011. The Plaintiff complained about Dr. Frank to her family physician on May 23, 2006. She spoke to him about pursing legal action. She contacted a law firm. It was her choice not to pursue the matter, but it would be a factual and legal fiction for this court to conclude that she only discovered her claim after the press release in 2011.

Lidija Poff

177On March 29, 2007 Dr. Frank performed surgery (LSO) to remove the Plaintiff’s left ovary. During the surgery, a rectovaginal fistula resulted. Dr. Collins was brought in to repair it. Ms. Poff was discharged on April 2, 2007.

178Ms. Poff testified that prior to undergoing the LSO she believed that she would be in hospital overnight, be off work for up to two weeks and would be fully recovered in six weeks. She expected to have some discomfort during her recovery, but understood that it would lessen over time.

179Prior to being discharged from hospital, Ms. Poff was told that her rectum had been nicked and that Dr. Collins had been brought in to repair it.

180The Plaintiff testified that she knew the nick to her rectum had not been planned. She understood from Dr. Frank that while she was trying to get her left ovary out Dr. Frank slipped and nicked her rectum. [13]

181Subsequent to her discharge for STEGH Ms. Poff attended at the emergency department for pain, vomiting and bleeding on April 3, 2007. Dr. Frank saw Ms. Poff post-operatively on August 24, and September 6, 2007. Dr. Frank recorded in her clinical notes that the Plaintiff reported blood in her urine and was “pissed off”.

182The Plaintiff’s last contact was a telephone call to Dr. Frank on December 27, 2007 wherein she reported bleeding with intercourse.

183The Plaintiff has pled that she first discovered her claim when she spoke with a friend in or about March or April 2012. It was at that time she learned that Dr. Frank’s standard of care had been called into question.

184In her Statement of claim issued August 21, 2013 she asserts that she suffered the following losses or injuries: post-operative pain, nausea and vomiting, vaginal discharge, pelvic pain, incontinence and dyspareunia.

185By December 27, 2007, the Plaintiff was aware, or ought to have been aware that:

a) She had suffered the claimed injuries; b) The claimed injuries arose because of the LSO performed on March 29, 2007 and the medical care provided by Dr. Frank thereafter until December 27, 2007; c) The LSO on March 29, 2007 was performed by Dr. Frank; and d) Having regard to the nature of her injuries and damages a proceeding would be an appropriate avenue for remedy.

186Ms. Poff may not have been aware of the full extent of her injuries but she did know that a loss had occurred.

187Ms. Poff expressed upset with Dr. Frank, as Dr. Frank documented in her clinical notes.

188In 2009 Ms. Poff contacted a lawyer because she believed that she had been injured. [14] Ms. Poff ultimately chose not to proceed with litigation because it was too costly and risky. [15]

189As with the analysis regarding Ms. Moreau, I conclude that it would be a factual and legal fiction for this court to conclude that Ms. Poff only discovered her claim after the she spoke with a friend regarding the press release in 2012. She clearly knew of her injuries by December 27, 2007, or at the very latest when she contacted counsel in 2009.

Conclusion and Orders

190Based on the objective standard of assessing due diligence, the Plaintiffs have not demonstrated that they acted with reasonable diligence to discover their claims.

191In light of the foregoing, there is no genuine issue requiring a trial, as the plaintiffs’ claims were brought well after the date they was discoverable, and are therefore statute-barred by the provisions of the Limitations Act, 2002.

192Summary judgment will issue dismissing these actions and the cross-claims against the Defendants. Costs of the motion are payable by the Plaintiffs forthwith. If the parties are unable to come to an agreement as to quantum, I will receive brief written submissions within 60 days.

Justice K. A. Gorman The Honourable Madam Justice K. A. Gorman

Date: May 16, 2016

COURT FILE NO.: 7959/12 DATE: 2016/05/

ONTARIO SUPERIOR COURT OF JUSTICE

PAMELA BUYS AND: CATHY SHEILA FRANK, JAMES SCOTT BRADLEY MARTIN, NANCY WHITMORE, WILLIAM FRYDMAN, PAUL COLLIN, DR. RED, DR. BLUE and ST. THOMAS ELGIN GENERAL HOSPITAL AND: CATHY SHEILA FRANK, JAMES SCOTT BRADLEY MARTIN, NANCY WHITMORE, WILLIAM FRYDMAN, PAUL COLLIN, DR. RED, DR. BLUE and ST. THOMAS ELGIN GENERAL HOSPITAL AND: DALE v. FRANK et. al. (Court file no. 8756-12); PETTIT v. FRANK et. al. (8674/12); LESAK v. FRANK et. al. (8255/12); GLADKOWSKI v. FRANK et. al. (8228-12); NOLAN v. FRANK et. al. (8903/12); MOREAU v. FRANK et. al. (8262/12); and POFF v. FRANK et. al. (1575/13)

REASONS FOR JUDGMENT GORMAN J.

Released: May 16, 2016

Footnotes

1Ms. Buys had originally been referred to Dr. Frank as a “high risk” pregnancy. An ultrasound had revealed complete placenta previa early in her pregnancy. Placenta previa occurs when the placenta partially or totally covers the opening in the cervix, and may cause bleeding before or during delivery. She was never told that this condition had changed.

2Pettit transcript questions 368-370; 429-432; 471-472

3Martens Affidavit, note 1 at para. 46, Exhibit “R”

4Buys Transcript, supra at Questions 138-140; 298-299; 373-374

5Buys Transcript, supra at Question 398-421.

6Dale Transcript, questions 311-316; 340-341.

7Pettit Transcript at Question 48-50; 53-55, 418-426.

8Gladkowski Transcript, Question 589-595.

9Gladkowski Transcript, Question 618-625

10Nolan Transcript, Questions 241-253; 267-277

11Nolan Transcript, Question 234-240.

12Moreau Transcript, Question 359-379

13Poff Transcript, Question 203-207

14Poff Transcript, Questions 168-172; 178-187; 278-279; 295-299; 317-320; 323-328

15Poff Transcript at Questions 430-432; 435-437