COURT OF APPEAL FOR ONTARIO

DATE: 20000605

DOCKET: C28285

CARTHY, GOUDGE AND FELDMAN JJ.A.

B E T W E E N :

ANNE MARIE McSWEEN
Plaintiff
(Respondent)

and

KEITH LOUIS and PEEL MEMORIAL
HOSPITAL
Defendants
(Appellant)

Jonathan C. Lisus
for the appellant
(Dr. Keith Louis)

Thomas C. Hendy, Q.C.
for the respondent
(Anne Marie McSween)

Barry Glaspell
for Peel Memorial Hospital

Heard: October 12, 1999

On appeal from a judgment of Belleghem J. dated September 12,
1997.

GOUDGE J.A.: (Dissenting)

[1] On February 26, 1991, Anne Marie McSween underwent routine
electrocautery surgery at Peel Memorial Hospital to remove some
small skin tags or anal warts. In the course of the surgery she
sustained a second degree burn to her left buttock, which became
seriously infected and resulted in significant and long-term
discomfort for her.

[2] On November 26, 1992, she sued the surgeon Dr. Louis and the
hospital. Her claim against the hospital was dismissed, but she
succeeded against the doctor. Belleghem J. awarded her general
damages of $20,000 and special damages of $5,942.28.

[3] The doctor appeals. He raises two issues: first, that the
trial judge erred in his finding of liability; and second, that
the trial judge erred in failing to apply the one-year limitation
period found in s.17 of the Health Disciplines Act, R.S.O. 1990,
c.H.4.

[4] We did not find it necessary to call on the respondent on
the first issue. In deciding liability the critical task facing
the trial judge was to determine how the burn was caused. A
number of different possible explanations were presented in
evidence at trial. The possibility that seemed to be favoured by
most of the expert witnesses was that the electrocautery machine
was likely defective, thereby causing an electrical burn. It was
not in issue that the proper functioning of the machine and the
placing of the pad necessary to provide grounding for it was the
responsibility of the hospital, not the doctor.

[5] The trial judge carefully considered each of the possible
causes in light of the relevant evidence. He rejected the
electrical burn theory, concluding on a balance of probabilities
that the burn was caused by the brief flaming of excess prepping
solution that had pooled on the operating table next to her
buttock. This prepping solution was 70% alcohol and highly
flammable. The flame occurred when the vapours from the pooling
rose and were ignited, carrying the flame down to the pool on the
operating table. The ignition happened without the doctor being
aware of it, caused by a sparking from the probe attached to the
machine, which he held to do the actual cutting.

[6] The trial judge then went on to find that the ignition of
this highly flammable solution by the careless use of the probe
was in these circumstances a breach of the standard of care owed
by the doctor to the respondent.

[7] In my view, there was ample evidence to support both these
findings.

[8] As to causation, the trial judge reviewed at length the
evidence supporting the “ignition” explanation. This included the
composition of the prepping solution, its use in this operation,
the nature of the surgical device and the location and shape of
the burn. While none of the medical experts at trial took this
as their preferred explanation, this is by no means fatal. See
Snell v. Farrell (1994), 1990 70 (SCC), 4 C.C.L.T. (2d) 229 at 245 (S.C.C.).

[9] As to the standard of care, having found the cause of the
burn as he did, the conclusion of the trial judge that the doctor
accorded substandard care to the respondent would seem obvious.

[10] In summary, neither the finding concerning causation nor
that concerning standard of care represents the kind of palpable
and overriding error that would warrant intervention by this
court.

[11] The second issue raised by the appellant is the
applicability of the one-year limitation period found in s.17 of
the Health Disciplines Act. That section reads as follows:

No duly registered member of a college is liable
to any action arising out of negligence or
malpractice in respect of professional services
requested or rendered unless such action is commenced within one year from the date when the
person commencing the action knew or ought to have
known the fact or facts upon which he alleges
negligence or malpractice.

[12] The chronology relevant to this issue is as follows.

[13] The respondent’s surgery took place on February 26, 1991.
The burn was obvious to her that day. She went to her family
doctor the next day for treatment and was advised to return to
see the surgeon who had performed the operation, Dr. Louis.

[14] She consulted the appellant on February 28. His consultation
report of the meeting said “Apparently she developed a
superficial burn to the left buttock where the cautery had been
placed”. The trial judge found that at this point the appellant
attributed the cause of the burn not to that found at trial, but
to an electrical source, either the placing of the return
electrode or the improper grounding of the patient. Both of these
were the responsibility of the hospital. Hence, the trial judge
found that implicit in the note of the appellant was the
suggestion that it occurred without negligence on his part, and
that the respondent was referred to counsel within a month of the
operation on the basis that the burn was caused by a defective
cautery machine.

[15] The medical records of the respondent’s place of employment
indicate that as of March 28, 1991, she was improving slowly and
that the burn was thought to have been caused by a defective
cauterization machine in the operating room.

[16] By mid April the respondent had retained a lawyer. In early
June her family doctor referred her to a plastic surgeon, Dr.
Baum, for a consultation. His report of June 18, 1991 said: “I
have to assume that this [burn] was from faulty grounding during
the surgery.”

[17] Then on June 21, 1991, in response to a request from her
lawyer, the respondent’s family doctor indicated that he was not
in a position to comment as to whether her symptoms were usual
following this type of surgery and suggested that a plastic
surgeon could better answer the question.

[18] As a result the respondent’s lawyer wrote to Dr. Baum on
July 3, 1991, seeking his opinion about whether the respondent
should have expected the results she in fact experienced from the
operation.

[19] Dr. Baum saw the respondent again on August 15, 1991,
following which he requested the hospital records from her
lawyer. On September 24, 1991, these records were sent with a
letter from her lawyer again asking whether or not the injuries
could reasonably be expected to have occurred as a result of the
surgery. Dr. Baum’s answer to this question did not come until he
delivered his report to the respondent’s lawyer on October 19,
1992.

[20] His view was that the respondent’s condition was due to
something having gone wrong during the surgery. While he
expressed no criticism of Dr. Louis and felt that the most likely
explanation was an electrical burn from an improperly grounded
electrocautery machine, he could not rule out the other possible
causes. He concluded that the determination of how this burn
occurred was pure speculation. Following receipt of this report,
this action was commenced on November 26, 1992.

[21] On the basis of these facts the trial judge defined the
challenge in determining the commencement of the limitation
period as, in his words, identifying who did what wrong. At the
outset, the focus was on an electrical burn caused by a defective
or improperly grounded electrocautery machine. The trial judge
found that it was only with the receipt of the expert opinion in
October 1992 that the respondent could conclude that there might
have been some negligence on the part of either the doctor or the
hospital. Finally, he held that the delay in obtaining this
opinion could not be visited on the respondent or her lawyer.
Hence, he concluded that the claim was not barred by the
limitation defence.

[22] In this court the appellant argued that this finding was
wrong. The position advanced both here and at trial was that by
March of 1991 the respondent had all the facts necessary to
commence proceedings against the doctor and that the year
provided for by s.17 of the Health Disciplines Act commenced to
run at that point, hence barring this action.

[23] The appellant did not raise any lack of diligence by the
respondent in not acquiring the expert opinion that facilitated
the lawsuit until October 1992. Indeed, in the face of the
finding by the trial judge that the delay in receiving the
opinion was not the fault of the respondent or her counsel it is
hard to see how such a challenge could have been mounted.

[24] What then of the appellant’s position that because of the
facts known to the respondent by March of 1991 this action is out
of time?

[25] In my view this argument must fail. Fundamental to the
operation of s.17 of the Health Disciplines Act is that the facts
whose actual or deemed acquisition triggers the one-year period
must found an allegation of negligence against the doctor.
Acquisition of facts upon which negligence could be alleged
against another defendant, in this case the hospital, does not
trigger this limitation period.

[26] As of March 1991 the respondent knew she had suffered a
painful and unexpected injury as a result of her surgery. Her
surgeon’s view was that she had suffered a cautery burn, caused
by a defective electrocautery machine, implying that the fault
was not his, but that of the hospital.

[27] She did not know at that point that there was any basis upon
which to allege that she had received substandard care from the
appellant. The mere fact that she had suffered an unexpected
injury in surgery was not enough, where the precise cause of the
injury was unknown to her and the only indication she had
received from the professional involved was that it was due to a
defective machine for which the hospital, not the doctor would be
responsible.

[28] Indeed, in June 1991 when her lawyer made a broad inquiry of
her family doctor that might have elicited a suggestion of
substandard medical care as a possible cause of her injury, her
family doctor declined to respond suggesting that a specialist
opinion be sought to properly answer the question.

[29] In my view there was a reasonable basis for the trial judge
to conclude that it was not until the respondent received the
expert opinion of Dr. Baum in October 1992 that medical
negligence became a possible cause of her injury although even at
that stage a far less likely cause. Until then the facts in her
possession pointed to negligence on the part of the hospital.

[30] Hence, I agree with the conclusion of the trial judge that
the respondent did not have sufficient facts in March 1991 to
trigger the limitation period against Dr. Louis. At the earliest
only when she received the report of Dr. Baum could it be said to
commence.

[31] As a result, I conclude that the action against Dr. Louis is
not barred by s.17 of the Health Disciplines Act.

[32] I would therefore dismiss the appeal with costs.

“S.T. Goudge J.A.”

FELDMAN J.A.:

[33] I have had the benefit of reading the reasons of my
colleague, Goudge J.A., and I agree with his disposition of the
liability issue. However, I respectfully reach a different
conclusion as to the limitation issue and, in particular, the
test for determining when the respondent knew or ought to have
known the facts which form the basis for her allegation of
negligence by the appellant doctor.

[34] In Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and
Findlay v. Holmes (1998), 1998 5488 (ON CA), 111 O.A.C. 319 (C.A.) this court
recently confirmed the proposition that when considering the
limitation prescribed by s. 17 of the Health Disciplines Act1 for
medical malpractice cases, there are some situations where an
opinion letter from an expert is necessary in order to provide
all of the information needed to make the allegation of
negligence against a physician.

[35] The trial judge found that this case fell into that
category. He rested his conclusion that the action had been
commenced within the limitation period on a finding that “[i]t
was perfectly prudent and acceptable for the plaintiff to obtain
the expert opinion that she did,” that it was not the fault of
the plaintiff or her counsel that the opinion did not arrive for
over a year, and that “[h]ad she started her action prior to that
time, it may well have fallen in the range of the ‘speculative’
concerns expressed by our Court of Appeal.”

[36] With great respect to the trial judge, there is no support
in the record for the conclusion that the opinion letter from Dr.
Baum was necessary for the plaintiff to have all of the facts
upon which to allege negligence against the doctor. The evidence
is to the contrary.

[37] Where a defendant raises the issue that the action was
commenced beyond the limitation period, the onus is on the
plaintiff to show that it was commenced in a timely manner. In
spite of that onus, the respondent did not put into evidence
either the letters from her counsel to the expert, Dr. Baum,
requesting his opinion, nor his opinion letter of October 19,
1992. All there is in the record is oral evidence from Dr. Baum
as to some of the contents of those documents.

[38] The portions of counsel’s two letters to Dr. Baum,
requesting his expert opinion, elicited by counsel in testimony
at the trial were the following:

(i) In the first letter of July 3, 1991 the following
sentence:

“We would be obliged if you would let us have your
comments as to whether or not she should have
expected the results she is now experiencing from
the operation.”

(ii) In response, Dr. Baum made a note indicating that he
required a copy of the record of the operation and that:

“What would be most important would be the
operating room record in which the type of
cauterization used is listed.”

(iii) In the second letter to Dr. Baum of September 24, 1991
the following sentence:

“What we are concerned about is whether or not the
injuries could reasonably be expected to have
occurred.”

That letter also enclosed for Dr. Baum the record of the
operation which counsel had obtained.

[39] The following evidence of Dr. Baum indicates what was
contained in his opinion letter of October 19, 1992 with respect
to a possible cause of action against Dr. Louis:

Q. Having regard to the manner in which the equipment
functions, could you give us a most likely or more likely
scenario with respect to how the scar you saw on Ann Marie
McSween, in June of 1991, was caused?

A. There are just too many variables involved to give a
simple answer to that question.

Q. I appreciate that. You had indicated in correspondence
with my office in October of ‘92, that you felt there
might have been a cause. Could you tell the court what you
felt at that time?

A. I felt that, given the patient’s history, the
examinations done following the injuries, by physicians
other than myself, patient’s description of the post-
injury state, review of the hospital records, it was my
opinion that, at that time, the most likely diagnosis
would have been burn caused by electro-cautery unit.

Q. The electro-cautery unit is the unit we have just been
describing.

A. Correct.

Q. When you say “the unit”, do you mean – do you
necessarily mean the machine itself, or would you give
that opinion, if you will, in a more generic sense, the
whole electrical circuit set-up?

A. Given the presentation of the injury itself, I thought
that it was unlikely that the burn was caused by direct
contact of that tip to the skin. It was my feeling that it
was most probably caused by improper grounding, where the
flow of electrons did not pass through the dispersal pad
directly to the machine. There was a break in the circuit
and the electrons came through the area described on the
left buttock.

Q. Have you ever had experience with a similar occurrence,
or have you ever been present in an operating room when
something has happened of this nature?

A. These injuries used to be quite common in the early
eighties, when I was a resident in plastic surgery at
Toronto General Hospital. They used, of course, different
types of machines, and we would see a lot of these burns,
due to improper grounding.

Q. Based on the information that you have reviewed, those
being hospital records and comments from other medical
doctors, what is your opinion, doctor, as to whether or
not the condition we see present in the photographs was as
a result of the surgical procedure carried out on Ann
Marie McSween on February 26th, 1991?

A. Could you repeat the question?

Q. Yes. Based on your review of the hospital records and
your knowledge of the patient’s background, what is your
opinion as to whether or not the condition that we see,
the condition that you saw, was in some way caused or the
result of the operation of February 26th, 1991?

A. I think that the condition which I saw likely occurred
in the operating room at that time.

[40] In cross-examination, Dr. Baum agreed that the cause of the
plaintiff’s lesion was “really a matter of speculation or
conjecture.” He also agreed that in his letter of October, 1992
he expressed the opinion that:

“this is a cautery burn – a burn from the cautery
equipment; it was as a result of equipment malfunction
and that you would have expected his alarm to have
sounded.”

He also agreed that it was not the surgeon’s responsibility
to ensure that that feature of the machine was working.

[41] Most important was the following evidence given in cross-
examination:

Q. Now, Dr. Baum, you did review the entire hospital record,
right?

A. I read the entire hospital record.

Q. Again, as you stated in your report of October 1992, you
do not have any criticism of Dr. Louis’ conduct.

A. I think I stated that.

[42] Dr. Baum also testified that when the respondent came to see
him, she told him she had a burn and that she felt that something
had gone wrong in her surgery. He agreed that in June 1991 he was
speculating as to the cause of the burn when he noted “cautery
grounding problem”, and that in his October 1992 letter he stated
that “The determination of how this burn occurred might be
construed as speculation.” He also stated that at the time he was
testifying, he still felt that the cause of the burn was pure
speculation.

[43] There is nothing in the evidence to suggest that Dr. Baum’s
expert opinion letter of October 1992 contained any suggestion of
negligence on the part of Dr. Louis as the cause of the lesion
the respondent sustained during the surgery. Therefore it appears
clear that none of the facts which formed the basis for the
allegations of negligence against Dr. Louis made in the Statement
of Claim issued on November 26, 1992 were derived from that
letter. As a result, the trial judge was wrong when he concluded
that had the respondent commenced her action before receiving the
letter, it might have been an action based on speculation. On
that theory, in this case it was also speculation right down to
the time when the trial judge delivered his judgment.

[44] The difficulty faced by the trial judge and the parties in
the case was that because no one noticed anything amiss during
the operation, there was no direct evidence of what did cause the
lesion. The experts came to court with several possible theories,
then based on all of the evidence, the trial judge drew
inferences to conclude what must have happened on a balance of
probabilities. What began as speculation on the part of the
experts was either rejected as such or, in the case of the
ultimate conclusion of the trial judge, became the finding of the
court. Once that finding was made, the court also concluded that
for the surgeon to allow the lesion to occur as it did
constituted a breach of the standard of care required of him.
And although such a breach was alleged by the respondent in the
Statement of Claim, and ultimately proved to be so, the
respondent’s expert did not come to court with that opinion nor
was it contained in his opinion letter of October, 1992.

[45] In Soper v. Southcott, supra, at 743-744, this court
reviewed and restated the test for determining the point at which
a person has the facts needed to start the running of the
limitation period:

The motions judge held that upon receipt of the
hospital records, the appellant had in her possession
sufficient facts upon which she could allege
negligence. There was no evidence that the records were
missing a material fact which the appellant required
before she could recognize a cause of action. There was
no issue before him as to the sufficiency of the
records. He examined the statement of claim and knew
that the hospital records were in hand. Consequently,
he was driven to the inescapable conclusion that the
material facts were known to the appellant in December
1993. Moreover, between December 1993 and March 1995,
no significant steps were undertaken in the prosecution
of the investigation.

In Law v. Kingston General Hospital (1983), 42 O.R.
(2d) 476 (H.C.J.), Griffiths J. held at p. 479:

In many cases, I suspect that the necessary facts will
not be acquired by the plaintiff alleging medical
malpractice until his solicitor has had a reasonable
opportunity to review all pertinent hospital and
medical records. Section 17 prescribes that the time
will run when the plaintiff knows or ought to have
known of facts upon which he asserts allegations of
negligence. That time will frequently run from the
moment the solicitor for the plaintiff carrying out
diligent investigation is first apprised of all the
facts. [Emphasis added.]

And to the same effect, White J. in Gaudet v. Levy (1984), 1984 2047 (ON SC), 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 in
original.]

[46] Importantly, this court concluded in Soper, supra, at p. 744:

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.

[47] This case falls into the second category where a medical
opinion was not necessary in order for the plaintiff to know the
material facts upon which to base a negligence claim against Dr.
Louis. First, based on the contents of the opinion letter itself,
the letter was clearly not necessary in order to know the
material facts to allege negligence on the part of Dr. Louis. The
letter did not express the view that Dr. Louis was negligent.
Second, this is not the type of case which would normally require
the opinion of an expert in order to know the necessary facts. In
some situations, often where an injury occurs and manifests
itself immediately, for example during a medical procedure such
as an operation, the patient knows that the injury must have been
caused through some act or failure to act by one or more of the
professionals involved in the procedure and that there was the
likelihood of negligence of some kind, either in what was done or
what was not done but should have been.

[48] In other situations the patient either learns that he or she
has suffered an injury, but does not know whether it occurred
during or as a result of a medical procedure, or learns of an
untimely diagnosis of a disease. In those situations, the patient
requires the assistance of experts to advise whether the injury
was suffered because of something which occurred during a past
medical procedure, or whether there was at some point a
misdiagnosis of symptoms which could and should have been noted
earlier.

[49] Such a situation occurred in Urquhart v. Allen Estate, (1999), 1999 1779 (ON CA), 124 O.A.C. 11 (C.A.), where the proposed new defendant,
Dr. Allen, was a radiologist who had read a mammogram of the
plaintiff in 1991 and concluded that it did not disclose any
cancer. One year later the plaintiff was diagnosed with breast
cancer. Her injury resulted from the untimely diagnosis of the
disease. However, none of the plaintiff’s doctors had necessarily
misdiagnosed the plaintiff in 1991. There may have been nothing
to alert the doctors at that time, and their care may have been
beyond reproach. The plaintiff needed expert assistance to tell
her whether she had a cause of action and if so, against whom. It
was only some years later when another radiologist who was
consulted by the plaintiff’s counsel suggested that the 1991
mammogram did disclose cancer. As the court noted at paragraph 6:
“The appellant was in no position to recognize that she had a
cause of action against Dr. Stewart on the basis of the mammogram
report and other medical records alone.”

[50] In this case the respondent knew immediately after the
surgery that she had suffered a burn or lesion which was not
located at the surgery site and which she did not expect. She
investigated right away with her family doctor and with Dr.
Louis. She continued to suffer as a result of the burn and she
pursued it both with doctors and with legal counsel within a few
weeks. Because she knew: a) she had suffered an unexpected
injury, b) as a result of her surgery, c) that Dr. Louis was in
charge of the surgery, and d) that the others there were the
hospital staff using hospital equipment, she had the facts to
know that something went wrong for which the surgeon and/or the
hospital was responsible. With those facts, she had the basis of
an allegation of negligence against Dr. Louis and the hospital.
She then had one year in which to conduct further investigation
to gather more definitive information to the extent possible, and
to commence the action.

[51] To say that a plaintiff must know the precise cause of her
injury before the limitation period starts to run, in my view
places the bar too high. Both the one year limitation period
itself, as well as the production and discovery process and
obtaining expert reports after acquiring knowledge through that
process, are litigation procedures commonly used by a plaintiff
to learn the details of how the injury was caused, or even about
the existence of other possible causes and other potential
defendants. In order to come within s. 17 of the Act, it is
sufficient if the plaintiff knows enough facts to base her
allegation of negligence against the defendant.

[52] I agree with the following comment of Dunnet J. (ad hoc) in
Findlay v. Holmes, supra, at p. 329:

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 appropriate
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.

[53] One inference drawn by the trial judge requires comment. Dr.
Louis’ note of February 28, 1991, made when the respondent came
to ask him about the burn, characterized the incident as having
been due to a “cautery burn”. The trial judge found that implicit
in that note was the “suggestion that it occurred without
negligence on his part.” However, the trial judge did not make
any finding that Dr. Louis suggested to the respondent that he
was not negligent, nor was there evidence to that effect either
by Dr Louis or by the respondent.2 Had Dr. Louis in some way
actively misled the respondent about how the incident occurred,
that could well have had the effect of delaying the commencement
of the limitation period against him. There is no such finding by
the trial judge, nor does the evidence suggest that that
occurred. Given that Dr. Louis was apparently unaware that the
respondent suffered a cautery burn during the surgery, it would
not be unnatural for him to identify and note the cautery burn on
the patient’s record without addressing the issue of blame.

CONCLUSION

[54] In my view the trial judge erred in finding that the
limitation period only commenced with the receipt of Dr. Baum’s
letter in October, 1992. The letter added nothing to the facts
already known by the respondent about the cause of the injury
suffered during her operation. This is the type of case referred
to by this court in Soper v. Southcott, supra, where the
circumstances of the event in which the injury occurred provide
the facts upon which to base the allegation of negligence against
the surgeon who performed the operation. The respondent had those
facts right after the operation. The hospital record of the
operation, obtained by her counsel, added nothing, although it
was important to obtain that record as part of due diligence.
However that record was obtained more than one year before the
action was commenced. In my view the action was commenced more
than one year after the respondent had the requisite knowledge
and was therefore statute barred.

[55] In the result, I would allow the appeal and dismiss the
action with costs here and below.

“K. Feldman J.A.”

CARTHY J.A.: (Concurring)

[56] The issue concerning the limitation period is, in my view, a
very close call on these facts. Lawsuits against doctors and
nurses should not be encouraged by reason only that they were
involved in an operation which does not turn out as expected.
However, here, the doctor manipulated the instrument which, for
whatever reason and in whatever manner, was always known to be
the probable source cause of the injury. This brings me to
conclude that there was sufficient circumstantial evidence from
the outset to support an allegation that the injury must have
been caused by either the negligence of the doctor or the
hospital.

[57] For these reasons I agree with Feldman J.A.

Released: June 5, 2000 “JJC” “J.J. Carthy J.A.”

1 Section 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4
(in force until December 31, 1993) provides:

No duly registered member of a college is liable to any
action arising out of negligence or malpractice in respect of
professional services requested of or rendered unless such action
is commenced within one year from the date when the person
commencing the action knew or ought to have known the fact
or facts upon which the person alleges negligence or
malpractice.

Section 89 of the Regulated Health Professions Act, S.O. 1991,
c.18 (came into force on December 31, 1993) provides:

No person who is or was a member is liable to any action
arising out of negligence or malpractice in respect of
professional services requested of or rendered by the person
unless the action is commenced within one year after the date
when the person commencing the action knew or ought to have
known the fact or facts upon which the negligence or
malpractice is alleged.

2 The respondent was referred in cross-examination to a note in
her employer’s record of March 28, 1991 which said that her burn
was caused by a “defective cauterization machine in operating
room.” She denied telling anyone that that was her belief and
denied that it was her belief at the time. She said she did not
know the cause of her burn but agreed that a defective machine
was a possibility.