Morton et al. v. Cowan [Indexed as: Morton v. Cowan]
66 O.R. (3d) 321
[2003] O.J. No. 3204
Docket No. C37415
Court of Appeal for Ontario,
Simmons, Gillese and Armstrong JJ.A.
August 13, 2003
Limitations -- Discoverability -- Medical malpractice -- Plaintiff developing drug addiction after being prescribed narcotics by defendant family doctor -- Plaintiff and his wife knowing in April 1996 that plaintiff was addicted and that he was using non-existent injury to obtain prescriptions from defendant -- Plaintiff's wife filing complaint against defendant in April 1996 with College of Physicians and Surgeons -- Plaintiff commencing malpractice action in October 1998 -- Discoverability principle not applying to postpone running of one-year limitation period in Regulated Health Professions Act -- Plaintiff not requiring independent medical opinion to inform him of material facts upon which cause of action for medical malpractice could be asserted -- Plaintiff aware of all material facts in April 1996 -- Action statute-barred -- Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
The plaintiff was treated by the defendant, his family physician, for back pain. The defendant prescribed a variety of narcotics. The plaintiff also sought treatment for non-existent hip pain as a pretext for obtaining more drugs. The plaintiff was admitted to an addiction treatment centre in April 1996. The plaintiff's wife obtained computer printouts of the drugs prescribed for the plaintiff from three pharmacies and made a complaint against the defendant to the College of Physicians and Surgeons, alleging that the defendant had treated the plaintiff inappropriately by prescribing excessive narcotics. The plaintiff commenced a medical malpractice action in October 1998. On a motion by the defendant, the action was dismissed as statute-barred, as the one-year limitation period in s. 89(1) of Schedule 2 of the Regulated Health Professions Act, 1991 had expired. The plaintiff appealed, arguing that the motions judge erred in failing to find a genuine issue for trial on the applicability of the discoverability rule to the limitation period.
Held, the appeal should be dismissed.
The discoverability rule had no application in the circumstances of this case. The plaintiff and his wife were clearly aware in April 1996, that large quantities of narcotics had been prescribed by the defendant. The plaintiff knew that he had been using the defendant as a source to feed his addiction by obtaining prescriptions on the pretext of a non- existent hip injury. He and his wife both believed that it was the defendant's over-prescription of narcotics that led to the addiction. The fact that they had a subjective "lay" belief did not suspend the running of the limitation period. They were in a position to seek an independent medical opinion if they thought they needed more information. They did not do so. Waiting for nearly two years until they heard from the College did not meet the test for the exercise of due diligence. In any event, an independent medical opinion was not required to inform the plaintiff of the material facts upon which a cause of action for medical malpractice could be asserted.
APPEAL from a summary judgment of Whitten J., [2001] O.J. No. 4635 (QL), supp. reasons [2002] O.J. No. 2303 (QL) dismissing an action for medical malpractice.
Cases referred to Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.), revg (1997), 33 O.R. (3d) 615 (Gen. Div.); Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.); Smyth v. Waterfall (2000), 50 O.R. (3d) 481, 4 C.P.C. (5th) 58 (C.A.); [page322] Soper v. Southcott (1998), 39 O.R. (3d) 737, 43 C.C.L.T. (2d) 90 (C.A.), affg (1997), 36 O.R. (3d) 704 (Gen. Div.)
Statutes referred to Evidence Act, R.S.O. 1990, c. E.23, s. 52(2) Limitations Act, R.S.O. 1990, c. L.15, s. 47 Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 36(3), Sched. 2, s. 89(1)
Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 39.01
Brian J.E. Brock, Q.C., and Susan E. Gunter, for plaintiffs (appellants). Jonathan C. Lisus and Michally A. Iny, for defendant (respondent).
The judgment of the court was delivered by
[1] ARMSTRONG J.A.: -- This is an appeal from the decision of Whitten J. dismissing the appellant's action for medical malpractice on a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellants also appeal the motions judge's order for costs.
The Facts
[2] The appellant, Robert Morton, was treated by the respondent, his family physician, for back pain. The respondent prescribed a variety of drugs including Demerol, Tylenol 3, Flexeril, Restoril and Halcion. Mr. Morton also sought treatment for non-existent pain in his hip as a pretext for obtaining more drugs. He also told the respondent he was going on trips, when he was not, in order to increase his drug supply. Ultimately, Mr. Morton developed a drug dependency. He was admitted to Homewood Health Care Centre, an addiction treatment facility, on April 17, 1996, and was discharged on June 18, 1996.
[3] The Homewood's admission sheet recorded the following comments of Robert Morton's wife, who is a party to this action:
[S]he expressed irritation if not anger towards their family physician for what she believes is over prescribing medication.
She does not believe that he (her husband) has been double doctoring [but] rather has thought that one physician has been prescribing the medication which he has been taking. [page323]
[4] The Homewood Hospital record contains a nurse's note for April 17, 1996, which states: "She (Mrs. Morton) is angry with the family doctor and threatens to sue him."
[5] Mr. Morton gave the following evidence on his examination for discovery:
Q: When did you first believe that you were addicted?
A: The second week when I was in Homewood . . .
Q: And is it your belief that you developed an addiction because of Dr. Cowan's prescription of narcotic medication to you?
A: Yes.
[6] Prior to her husband's admission to Homewood, Mrs. Morton obtained computer printouts of the drugs prescribed for her husband from three pharmacies. At about the same time, she made a complaint against the respondent to the College of Physicians and Surgeons of Ontario (the "College"). With respect to these actions, Mrs. Morton testified on her examination for discovery as follows:
Q: Now, shortly after your husband's admission to Homewood [in April 1996] and in or around the time of the request you made for the pharmacy printouts, you also communicated with the College of Physicians and Surgeons, correct?
A: That's correct.
Q: And I take it that you did that because you wanted to make a complaint against Dr. Cowan, right?
A: That's correct.
Q: And your complaint was that he had treated your husband inappropriately, right?
A: That's correct.
Q: And that the inappropriate treatment consisted of excessive prescription of narcotics, right?
A: That's correct.
Q: And that they, the excessive prescription of narcotics, had caused your husband to become addicted?
A: Yes.
Q: And that you felt that in so doing, Dr. Cowan had fallen below the standard of practice of the family physician, right?
A: Yes.
[7] Mr. Morton was aware that his wife made the complaint to the College. He testified at his discovery as follows: [page324]
Q: So after a couple weeks at Homewood, you knew your wife made a complaint to the College, correct?
A: Yes.
Q: Did she tell you she was going to do that?
A: Yes.
Q: And you did not try and stop her?
A: No.
Q: You believed that she was making a complaint to the College because Dr. -- about Dr. Cowan's prescription of narcotics to you, correct?
A: Yes.
Q: And you believed that she was making that complaint to the College because Dr. Cowan's prescriptions of narcotics to you was inappropriate, right?
A: Yes.
[8] On February 11, 1998, the College wrote to Mrs. Morton and enclosed a copy of the respondent's reply to her complaint. In July 1998, Mrs. Morton received a copy of the College's Complaints Committee's decision and reasons with respect to her complaint. The appellants commenced this action on October 14, 1998.
[9] The respondent moved for an order dismissing the appellants' action on the basis that there is no genuine issue for trial on two grounds:
(i) that the action is statute barred, as the one-year limitation period had expired; and
(ii) that the appellants failed to provide evidence that the respondent breached the appropriate standard of care.
[10] Section 89(1) of Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides:
89(1) 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.
[11] The respondent argued before the motions judge that Mr. Morton and his wife were aware of the facts which supported the cause of action for medical malpractice in April 1996, when the complaint was made to the College.
[12] In response to the respondent's motion for summary judgment, Mrs. Morton filed an affidavit in which she said: [page325]
At the same time, I made a complaint about the Defendant to the College of Physicians and Surgeons on behalf of my family. The reason I went to the College was that my sister- in-law who is a nurse told me that the College would determine whether the Defendant was responsible for the addiction. When I made that complaint, I personally believed that Dr. Cowan's prescription of medications to my husband was inappropriate but was not of course certain that [the] medical authorities would agree with my belief. By reporting Dr. Cowan to the College of Physicians and Surgeons, I understood that there would be an investigation of my complaint and a finding made whether my belief was either accurate or inaccurate.
Even though I had the printouts from the pharmacy, I still had doubts about whether the addiction was caused by the Defendant. The College investigators raised doubts in my mind. They asked me if my husband could have taken a prescription pad from the Defendant. I didn't think so but I was not sure because my husband had not been honest with me during that period. Lisa Mastrobuono, a College investigator, asked me if my husband's addiction could be as a result of him taking something else other than or in addition to prescriptions. At the time I did not know the answer to this question. This question raised a further doubt in my mind about whether the Defendant was responsible.
The first time I saw any confirmation that my complaint to the College had any validity was when we received the January 30, 1998 letter by the Defendant to the College in which he admitted fault.
[13] Counsel for the appellants also filed an opinion of Dr. John W. Crosby, a family physician, who said that he felt the respondent fell below the standard of a family physician in Hamilton. Dr. Crosby stated:
He did not carefully monitor the excessive numbers and types of narcotics and caused this patient to become addicted.
He was renewing narcotics in enormous quantities from three different drug stores. I have never seen these amounts used in 30 years of practice.
[14] The respondent filed a medical opinion of Dr. Brian Goldman, which provided a detailed analysis of the care provided by the respondent to Mr. Morton. Dr. Goldman concluded that the treatment by the respondent "was entirely appropriate and met the standard of care of a family physician practicing in Ontario".
[15] The appellants also tendered an affidavit of counsel, Brian Brock, Q.C., dated two days before the motion was argued. The affidavit had appended to it a report of Dr. Hy Bloom, a forensic psychiatrist, which was prepared for an employment arbitration in which the appellant was involved with his former employer, the City of Hamilton. Mr. Brock submitted in his affidavit that Dr. Bloom's report, "puts into issue Mr. Morton's mental capacity and/or decision-making capacity at the relevant times in this malpractice case, being the years 1996 through 1998". [page326]
[16] The motions judge refused to admit the affidavit of Mr. Brock and the appended report on the basis that it did not satisfy the provisions of rule 39.01 of the Rules of Civil Procedure or s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23 for the filing of expert reports.
The Reasons of the Motions Judge
[17] The motions judge granted summary judgment on both grounds put forth by the respondent. With respect to the limitation period, he stated [at paras. 50-51]:
The injury or result of the alleged negligence was known in April of 1996 with a diagnosis of prescription addiction. This is not a condition or injury which requires any further elaboration. The defendant was the only source, as it were, of the prescriptions. This is not a situation . . . where the condition is not immediately apparent to the lay person and consequently requires an additional medical opinion.
There is no evidence that there was any impediment to Mr. Morton's acquiring a medical opinion before the decision of the College of Physicians and Surgeons was rendered. They simply did not pursue such evidence and in that regard they were not diligent to the extent that a medical report was even required.
The plaintiff has not filed an affidavit in support of the advancement of the discoverability rule. His pleadings have never advanced such a possibility. There is no evidence of a lack of knowledge of the factual basis or an impediment to the acquisition of such knowledge that would invoke the application of the rule. Therefore the limitation period applies and the plaintiff is foreclosed from having a genuine issue for trial. Eleanor Morton's claim is a derivative claim to that of her husband and therefore her claim suffers the same fate as his.
[18] The motions judge also concluded that the report of Dr. Crosby was so "bereft of any supporting factual basis" that there was essentially no expert evidence to support the claim of malpractice. He therefore held that the lack of any expert evidence to support the appellants' claim was a secondary basis upon which to conclude that there was no genuine issue for trial.
The Standard of Review
[19] Before considering the particular issues in this appeal, it is useful to refer briefly to the appropriate standard of appellate review. Laskin J.A., writing for the court, in Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.), at p. 336 O.R. (C.A.) settled the issue of the appropriate standard of review where the entire record is in writing:
Therefore, although the entire record before a trial judge or a motion judge consists of documentary or written evidence, as it does in this case, the judge's factual findings are entitled to deference on appeal. What standard of [page327] deference applies in such a case? It is not easy to articulate a standard less deferential than "manifest error" but falling short of "correctness". I suggest that it may simply be a matter of weight or emphasis, or that, plausibly, a uniform standard of appellate review should be applied to a trial judge's findings of fact, whether the evidence is oral, entirely documentary, or, more typically, a combination of the two.
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.
The Issues in this Appeal
[20] The appellants raise the following issues:
(i) the motions judge erred in failing to find a genuine issue for trial on the discoverability rule and the limitation period.
(ii) the motions judge erred in failing to find a genuine issue for trial based on the conflicting expert opinions on the standard of care.
(iii) the motions judge erred in failing to rule on the refusal of the respondent to answer questions on discovery concerning an admission he made in the College complaints procedure.
(iv) the motions judge erred in awarding costs to the respondent.
The Discoverability Rule and the Limitation Period
[21] Borins J.A. described the discoverability rule in Smyth v. Waterfall (2000), 50 O.R. (3d) 481, 4 C.P.C. (5th) 58 (C.A.), at p. 485 O.R. as follows:
The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based: Peixeiro v. Haberman, [1997] 3 S.C.R. 549 at p. 566, 151 D.L.R. (4th) 429 at p. 442. The determination of when the limitation period begins to run is one of fact.
Borins J.A. also observed that s. 89 of the Regulated Health Professions Act, supra, incorporates the discoverability rule within its terms.
[22] The appellants submitted that the motions judge erred in concluding that their subjective belief that the respondent had over prescribed narcotics was sufficient to trigger the commencement of the limitation period in April 1996. They further submitted that the motions judge exceeded his proper role on a Rule 20 motion [page328] by assessing credibility and weighing evidence. Relying on the judgment of this court in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222 (C.A.), they argued that the motions judge failed to restrict his consideration "to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial".
[23] With respect, I disagree with the position advanced by the appellants. Both Mr. Morton and Mrs. Morton were clearly aware in April 1996, that large quantities of narcotics had been prescribed by the respondent. Mr. Morton obviously knew that he had been using the respondent as a source to feed his addiction by obtaining prescriptions on the pretext of a non- existent hip injury. Mr. and Mrs. Morton both believed that it was the respondent's over prescription of narcotics that led to his addiction. In my view, the fact that they had a subjective "lay" belief does not suspend the running of the limitation period in the circumstances of this case. They were in a position to seek an independent medical opinion if they thought they needed more information. They did not do so. Mrs. Morton deposed in her affidavit that the investigation of the College would answer her questions. While that may be so, I do not believe that waiting for nearly two years until she heard from the College meets the test for the exercise of due diligence.
[24] In any event, I do not believe that an independent medical opinion was required to inform the appellants of the material facts upon which a cause of action for medical malpractice could be asserted. This issue was considered by this court in Soper v. Southcott (1998), 39 O.R. (3d) 737, 43 C.C.L.T. (2d) 90 (C.A.), at p. 744 O.R.:
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.
In my view, the case at bar falls into the category of cases where it is possible to know the material facts without a medical opinion. As the motions judge correctly pointed out in his reasons, Mr. and Mrs. Morton had objective confirmation of their subjective belief of the respondent's failings. Mr. Morton knew of his misrepresentations to the respondent for the purpose of increasing his [page329] drug supply. Mrs. Morton had obtained the computer records of the particular drugs prescribed and presumably both Mr. and Mrs. Morton were aware of the diagnosis reflected in the Homewood medical records of "prescription addiction".
[25] On the issue of the discoverability rule, I come to the same conclusion as the motions judge. Applying the standard of review in Equity Waste Management, I do not find any reviewable error.
[26] As a subsidiary issue to the discoverability rule, the appellants relied upon s. 47 of the Limitations Act, R.S.O. 1990, c. L.15:
- Where a person entitled to bring an action . . . is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind.
Counsel for the appellant submitted that the report of Dr. Bloom referred to in para. 14 above engaged s. 47. The report provided in part:
In reviewing Mr. Morton's records, there does not appear to have been any substantial period of stability between April 24, 1996 and February 1998. He appears to have been predominantly unstable with interludes of stability, lasting in the neighbourhood of between one and three months.
[27] The appellants submitted that the report put into issue Mr. Morton's mental capacity, and as a result, his ability to instruct counsel during the relevant period. However, counsel for the appellants conceded that Dr. Bloom's report does not deal directly with the issue of the capacity of Mr. Morton to instruct counsel.
[28] Whether the motions judge was correct in declining to consider Dr. Bloom's report because of its failure to comply with the Evidence Act and rule 39.01(4) is, in my view, not determinative. The report does not deal with an issue which is relevant to s. 47 of the Limitations Act and it is therefore of no assistance.
The Conflicting Expert Opinions on the Standard of Care
[29] With the view I take of the inapplicability of the discoverability rule and s. 47 of the Limitations Act, it is unnecessary to deal at length, or perhaps at all, with the standard of care issue. However, I shall make some brief comments.
[30] The motions judge was very critical of the report of Dr. Crosby filed on behalf of the appellants. The motions judge clearly preferred the report of Dr. Goldman filed on behalf of the respondent. There is no doubt that Dr. Crosby's report is lacking in detailed analysis when compared to the report of Dr. Goldman. Nevertheless, the Crosby report is clear and straightforward. In essence, he offers the opinion that the respondent prescribed far too many narcotics, failed to adequately monitor his patient and [page330] thereby fell below the standard of care of a general practitioner in Hamilton. His opinion was based on his perspective of a doctor with 9 years' experience as a family physician and 18 years' experience in emergency medicine.
[31] In my view, the motions judge did exceed the limits of his role on a Rule 20 motion by weighing the expert evidence and functioning as a trier of fact, as opposed to determining whether there exists a genuine issue for trial. However, the conclusion that I have reached in respect of the discoverability issue renders a decision on the standard of care issue moot.
The Refusal of the Respondent to Answer Questions on Discovery Concerning the Admission He Made in the College Complaints Procedure
[32] During the course of the examination for discovery of the respondent, counsel for the appellants sought to question him on the information that he had provided in response to the complaint to the College. Counsel for the respondent invoked s. 36(3) of the Regulated Health Professions Act, 1991, supra:
36(3) No record of a proceeding under this Act . . . no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act . . .
The respondent declined to answer any of the questions the appellants' counsel asked about information arising out of the complaints procedure of the College. In particular, he declined to answer any questions on the contents of the letter written by him which contained an admission concerning the alleged over prescription. The motions judge was asked on a preliminary application to rule on the admissibility of this line of questioning. He declined to do so unless he found that there was a genuine issue for trial on the discoverability rule and the limitation period.
[33] I do not find it necessary to resolve the issue as to whether or not the trial judge erred in declining to hear the refusals motion or in failing to require answers to the questions in respect of the admission made during the College proceedings. Accepting that an admission was made in his letter to the College of January 30, 1998, it would not change the conclusion reached by the motions judge with respect to the discoverability rule and the application of s. 89 of the Regulated Health Professions Act.
Costs
[34] The motions judge awarded the costs of the motion to the respondent in the amount of $7,500. The appellants submit that the [page331] motions judge erred on two grounds. First, although he had declined to entertain the refusals motion with respect to the respondent's admission in response to the complaint to the College, he dealt with the matter in his costs endorsement. In that endorsement, he concluded that the admission would not be admissible by virtue of the plain meaning of s. 36(3) of the Regulated Health Professions Act. The appellants' counsel submitted that a ruling on this issue at this stage constituted a denial of natural justice.
[35] Second, counsel for the appellant submitted that the motions judge erred in determining the scale and quantum of costs when the only submissions made were with respect to entitlement.
[36] The issue of the refusal to answer questions on discovery was apparently raised in the costs submissions by the appellant as a factor concerning the conduct of the respondent. Although it would have been preferable if the motions judge had not rendered an opinion on the issue of the applicability of s. 36(3), since he had previously declined to do so, I do not think this provides a basis for setting aside the costs award.
[37] As to the second ground, as I read the endorsement of the motions judge, he had before him a bill of costs filed by the respondent. He reviewed the bill and awarded a sum which was less than the sum requested. I can see no basis to interfere with the discretion of the motions judge.
Conclusion
[38] In the result, I would dismiss both the appeal from the order dismissing the action and the order awarding costs. As to the costs of this appeal, I would order costs to be paid to the respondent by the appellants on a partial indemnity basis in the amount of $5,000.
Appeal dismissed.