CITATION: Lawless v. Anderson, 2011 ONCA 102
DATE: 20110208
DOCKET: C52232
COURT OF APPEAL FOR ONTARIO
Weiler, Blair and Rouleau JJ.A.
BETWEEN
Lillian Lawless
Plaintiff (Appellant)
and
Alvin James Anderson and La Fontaine-Rish Medical Group Ltd.
Defendants (Respondent)
Paul J. Pape and Shantona Chaudhury, for the appellant
T.N.T. Sutton and S.R. Shody, for the respondent, Alvin James Anderson
Heard: December 7, 2011
On appeal from the order of Justice D.M. Brown of the Superior Court of Justice dated May 13, 2010, with reasons reported at 2010 ONSC 2723.
Rouleau J.A.:
INTRODUCTION
[1] The appellant appeals the summary judgment granted by the motion judge dismissing her claim in negligence against the respondent. The motion judge held that the claim was statute-barred, as the applicable limitation period had expired.
[2] The issue on the motion and on appeal is discoverability under s. 5 of the Limitations Act, 2002, S.O., c. 24, Sched. B. This court must determine what information the appellant needed to have in order to discover that she had a cause of action in negligence against the respondent arising out of the surgery that he performed on her.
FACTS
[3] In June 2003, the appellant responded to an advertisement by the La Fontaine-Rish Medical Group Ltd., offering breast augmentation services. She eventually met with the respondent, Dr. Anderson. Having decided to proceed with the surgery, the appellant signed a consent form to undergo the procedure as well as a document entitled “Procedure: Augmentation Mammaplasty”. This document warned of various risks, including “hardness”, “persistent swelling”, “lack of symmetry”, the potential need for further surgery and the possibility of “permanent deformity, painful and unsightly scarring, and prolonged illness.”
[4] The respondent performed the surgery on the appellant on July 3, 2003. He subsequently saw her on July 10, 17 and 30. His notes indicated some bruising and the need for an uplift mastoplexy at a later point in time. On one of the follow-up visits, the appellant expressed concern regarding the appearance of her breasts and, in response, she was informed by clinic staff that she would need a second surgery to correct the first one. According to the appellant, it was at this point that the “ red flags went up” and she sought a second opinion.
[5] The appellant met with Dr. Michael Weinberg on November 20, 2003. Dr. Weinberg is a plastic surgeon who regularly acts as a medico-legal expert. At that meeting, Dr. Weinberg informed her that she had been “disfigured” and that her breasts were “deformed”. Dr. Weinberg went on to identify specific problems with how the respondent performed the surgery. Specifically, he indicated that the respondent:
should not have used saline implants;
should have placed the implants in front rather than behind the muscle; and
ought to have done a mastoplexy at the same time as the breast augmentation procedure rather than have the two done separately.
[6] Doctor Weinberg further advised the appellant that she would need corrective surgery. He also told her that she should contact a lawyer and complain to the College of Physicians and Surgeons of Ontario about the treatment she received from the respondent.
[7] Following the meeting, the appellant followed Dr. Weinberg’s advice. She filed a complaint with the College of Physicians and Surgeons of Ontario within a week and she arranged a meeting with a solicitor, Mr. Alan Rachlin.
[8] The appellant met with Mr. Rachlin on December 4, 2003. In a letter to the appellant dated December 19, 2003, Mr. Rachlin summarized their initial meeting and confirmed the appellant’s understanding of the errors made by the respondent as related to her by Dr. Weinberg. Mr Rachlin went on to explain, however, that the Canadian Medical Protective Association “fights all malpractice cases extremely hard. That means that, except in the clearest cases, medical malpractice litigation is protracted and expensive.” For this reason, Mr. Rachlin did not recommend initiating a lawsuit without obtaining additional information. In order to decide whether a lawsuit was “warranted”, he advised that the appellant should obtain a complete copy of her medical charts as well as an expert opinion from a qualified plastic surgeon as to whether the respondent had breached the standard of care.
[9] On December 19, 2003, Mr. Rachlin also wrote a letter to the respondent requesting a copy of the appellant’s chart. On or around that date, he spoke with Dr. Weinberg by telephone. In his affidavit filed on the motion for summary judgment, Mr. Rachlin states that, during the course of this conversation, Dr. Weinberg informed him that “he could not give an opinion or a preliminary view as to whether Dr. Anderson met the standard of care without reviewing Ms. Lawless’ chart.” This information was later confirmed in a May 10, 2004 letter from Dr. Weinberg to Mr. Rachlin, in which he stated that he was “unable to provide an opinion as to the medical standards of care at this time due to the fact that I have not been able to review the patient’s medical file.”
[10] Mr. Rachlin experienced significant difficulty in obtaining the appellant’s charts from the clinic. This culminated in a court order dated May 5, 2004, requiring the clinic to produce the charts. Upon receiving these, Mr. Rachlin sent them to Dr. Weinberg under cover of a letter dated June 24, 2004, headed “extremely urgent,” in which he requested a preliminary opinion “as soon as possible.” Dr. Weinberg responded by email on July 22, 2004, stating “I have reviewed the chart of L. Lawless. I don’t believe that the consent was informed and the result was below acceptable medical standards. My full report is to follow.”
[11] Upon receipt of the e-mail, Mr. Rachlin did not issue the claim. In cross-examination on his affidavit, Mr. Rachlin explained that he did not consider this e-mail to be sufficient to found litigation because it was not a written report. The conclusion he had reached was “that it was not in the client’s interest or reasonable for me to commence litigation until I had, or recommend to the client that she instruct me to commence litigation, until I had the opinion from a suitably qualified expert in a form that would be admissible under the Evidence Act and the Rules of Civil Procedure that said that the doctor had done something wrong because of the subjective nature of cosmetic surgical procedures.”
[12] Dr. Weinberg ultimately declined to provide an expert report and suggested that someone with greater experience with the type of procedure performed on the appellant be retained. Mr. Rachlin retained Dr. Frank Lista who, on June 6, 2005, provided a report stating that the respondent had fallen below the standard of care in performing the surgery. The appellant issued her statement of claim on June 24, 2005. The LaFontaine-Rish Medical Group Ltd. was noted in default.
[13] The respondent then brought a motion for summary judgment on the basis that the appellant had discovered her claim prior to January 1, 2004, and as a result, the one year limitation period established in s. 89(1) of the Health Professions Procedural Code, S.O. 1991, c. 18, Sched. 2, had expired. The parties agree that, if the claim was discovered prior January 1, 2004, the limitation in the Health Professions Procedural Code applies and the claim issued June 24, 2005 is statute-barred. If the claim was discovered after December 31, 2003, the two year limitation period set out in the Limitations Act, 2002 applies and the claim was issued in time.
[14] At the motion, the appellant took the position that the claim was not discovered until she received the written opinion from Dr. Lista on June 6, 2005, and therefore the claim was issued well within the statutory time period.
[15] The motion judge concluded that the appellant had knowledge of all of the material facts necessary to discover her claim prior to January 1, 2004. Because the claim was issued over a year later, he allowed the respondent’s motion and dismissed the claim.
Position of the appellant on appeal
[16] On appeal, the appellant argues that the motion judge erred in concluding that the appellant knew all of the material facts necessary to make her claim prior to January 1, 2004. It is apparent from the reasons that this conclusion is based on his having found that, in her meeting with Dr. Weinberg, the appellant was provided with all the information needed in order to discover her claim. In the appellant’s view, however, this finding ignored or misunderstood the evidence in Mr. Rachlin’s affidavit that Dr. Weinberg advised him that he could not give an opinion or a preliminary view without reviewing the charts.
[17] In support of her allegation, the appellant notes that in his reasons, the motion judge indicates that Dr. Weinberg said he could not “provide a formal opinion” until he had reviewed the charts. The appellant argues that this is inaccurate, as it makes no reference to Dr. Weinberg not being prepared to give even a preliminary view on the standard of care. In the appellant’s submission, this error goes to the core of the discoverability issue. In order to know that she had a claim, the appellant needed to know that there was an arguable case that the respondent had breached the standard of care.
[18] On appeal, the appellant no longer argues that the limitation period did not begin to run until the written opinion of Dr. Lista was obtained. However, she maintains that the limitation period only began to run when she received the email from Dr. Weinberg on July 22, 2004, in which he gave the preliminary opinion sought by Mr. Rachlin.
[19] In oral argument, counsel essentially summarized the appellant’s position as follows:
in his conversation with Mr. Rachlin, Dr. Weinberg “qualified” any opinion or advice that he had given to the appellant orally at their November 20 meeting; and
the appellant needed to get access to her medical records in order to obtain the medical opinion, which was necessary to discover her claim.
[20] For the reasons that follow, I would dismiss the appeal.
ANALYSIS
The case law dealing with discoverability
[21] The appellant’s position can best be summarized by the statement in her factum that, “The missing link for discoverability was a medical opinion based on the patient charts.” In my view, this misinterprets the case law. On the facts of this case, the appellant had knowledge of the material facts on which the claim was based following her meeting with Dr. Weinberg. The case law does not provide that obtaining the patient charts and a medical opinion are necessary to discover a claim where the charts and medical opinion add nothing of significance to the plaintiff’s knowledge.
[22] The principle of discoverability provides that “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term ‘cause of action’ – the fact or facts which give a person a right to judicial redress or relief against another”: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at p. 170.
[23] Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run: see Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.).
[24] In some medical malpractice cases, however, it has been recognized that in order to discover that they have a claim, plaintiffs may require advice from a person who is medically trained. Similarly, in some cases, plaintiffs will require access to their medical records and charts in order to become apprised of the facts necessary to discover their claim.
[25] When dealing with cosmetic surgery, as in the present case, the outcome of the surgery will often be subjective. For any number of reasons, the patient may be unhappy with the result, but will not know whether the unsatisfactory outcome may be the result of negligence rather than an unfortunate, but non-negligent outcome. This is well illustrated by the case of Patterson v. Anderson (2004), 2004 CanLII 21532 (ON SC), 72 O.R. (3d) 330 (S.C.). In that case, a 71 year-old had liposuction surgery in order to improve the appearance of her knees and thighs. After the operation, she suffered pain and was dissatisfied with the appearance of her legs. She consulted various doctors and complained to the College of Physicians and Surgeons of Ontario. However, it was only when she received the decision of the College resulting from her complaint that the plaintiff discovered the facts needed to issue a claim in negligence. As Speyer J. explained at para. 25:
[I]t is not until the plaintiff receives the CPSO report that she realizes two things. First, she may not have been an appropriate candidate for the procedure. Second, an inappropriate instrument may have been used during the course of the surgery. Both these matters are directly related to Dr. Anderson. It is now the basis of the allegations of negligence contained in para. 11 of the Statement of Claim.
[26] In Patterson, the plaintiff needed the medical information contained in the CPSO discipline decision to discover that she “may” have been an inappropriate candidate and that an unsuitable instrument – an inappropriately sized canula – “may” have been used. These two facts were not known to the plaintiff until revealed to her in the report from the college, and they would not have been obvious to a lay person. These two facts do not appear to have been communicated to Ms. Patterson by any of the doctors who she had previously consulted as a result of the pain in her legs. As noted by the trial judge, the specific factual allegations disclosed in the report were simply unknown to the plaintiff prior to the receipt of the report. As these factual allegations formed the core of her claim of substandard medical treatment, the limitation period did not begin to run until their discovery.
[27] The need to obtain medical records in order to discover the facts necessary to make a claim is well illustrated in Urquhart et al. v. Jacklin et al. (1999), 1999 CanLII 1779 (ON CA), 124 O.A.C. 11 (C.A.). In that case, the plaintiff had been diagnosed with breast cancer and the issue was whether the defendant physician had failed to interpret a mammogram conducted a year prior correctly. Absent access to her chart, including a copy of the mammogram, and the advice of a radiologist as to whether the mammogram disclosed the presence of the cancer, the plaintiff could not know whether she could allege that the doctor was negligent in failing to detect the presence of the cancer.
[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), 1984 CanLII 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 added]
The appellant’s knowledge of the material facts
[29] In the present case, the appellant had access to Dr. Weinberg, a medical expert. By the end of her meeting with him, the appellant knew all of the material facts required to discover her claim.
(a) She knew that she had suffered injury. As a result of the operation, she had excess skin that dangled under her breast, the implants touched in the middle of her chest, and one of her nipples was incorrectly placed on the implant. Dr. Weinberg commented that she was deformed and disfigured as a result of the operation.
(b) She knew the errors made by the respondent. He had placed the implants under the chest muscle, rather than over it, he had used the wrong kind of implant and he ought to have carried out a mastoplexy at the same time as the breast augmentation procedure.
(c) She knew that she would need corrective surgery or face permanent disfigurement.
(d) She knew that she should report the respondent to the College of Physicians and Surgeons of Ontario because of the treatment she received and that she should consult a lawyer.
[30] It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome. She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.
[31] The delay by the respondent and the clinic in providing the appellant with her clinical records cannot be condoned. However, these medical records, the preliminary opinion provided by Dr. Weinberg in his email dated July 22, 2004 and the formal written opinion provided by Dr. Lista contained no new material facts. In fact, they only served to confirm the essential information the appellant received in November 2003, when she met with Dr. Weinberg. In her cross-examination, the appellant confirmed that Dr. Lista provided virtually the same information that she had received from Dr. Weinberg. Dr. Lista added only that a new type of implant could also have been used, which merely supported Dr. Weinberg’s previous advice that the improper type of implant had been used by the respondent.
[32] A review of the statement of claim leads to the same conclusion. All of the essential facts pleaded in the statement of claim were known to the appellant as a result of her meeting with Dr. Weinberg.
Dr. Weinberg’s statement that he would not provide an opinion
[33] The appellant made much of the fact that Dr. Weinberg told Mr. Rachlin that he would not provide him with his medical opinion, even a preliminary one, as to the respondent’s failure to meet the standard of care, without first reviewing the appellant’s medical records. However, Mr. Rachlin did not indicate why Dr. Weinberg wanted to review these records prior to providing his opinion. Dr. Weinberg did not file an affidavit and was not cross-examined.
[34] Given the information that Dr. Weinberg had already conveyed to the appellant, his reluctance to provide the appellant’s solicitor with an opinion, even a preliminary opinion, regarding the negligence of a fellow doctor does not, in my view, delay the start of the limitation period.
[35] The appellant characterizes Dr. Weinberg’s refusal to provide Mr. Rachlin with an opinion, even a preliminary one, as a “qualification” of his opinion. I disagree with this characterization. As the appellant testified in her cross-examination on discovery, her meeting with Dr. Weinberg was “etched in my brain”. Nothing in the record, including Mr. Rachlin’s affidavit, suggests that Dr. Weinberg corrected, qualified or withdrew any statements he made to the appellant, nor is it suggested that he had changed his view that a complaint to the College of Physicians and Surgeons of Ontario against the respondent was warranted and that the appellant ought to consult a lawyer. Further, Mr. Rachlin’s letter to the appellant dated December 19, 2003 confirms, without qualification, much of what Dr. Weinberg told the appellant.
[36] What the record does reveal is that Mr. Rachlin was seeking a written medical opinion in a form that could be filed in court. In his view, an opinion was necessary before proceeding with a claim, in order to rebut any future motion brought by the respondent to dismiss the claim. As Mr. Rachlin explained to the appellant, he expected the Canadian Medical Protective Association to vigorously defend the claim and to bring a motion to dismiss the claim if the appellant did not have a medical opinion. This, however, confuses the issue of when a claim is discovered with the process of assembling the necessary evidentiary support to make the claim ‘winnable’. To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding, but is not needed to discover the claim. As this court stated in McSween, at para. 19:
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 [Health Disciplines’ Act], it is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant. [Emphasis added]
[37] Finally, I would not give effect to the appellant’s submission that the motion judge’s reference to Dr. Weinberg having advised that he could not “provide a formal opinion” shows that the motion judge misapprehended the evidence and led him to the wrong result. It is apparent from a reading of the reasons as a whole that this error played no role in the motion judge’s conclusion. He found that a medical opinion “simply would serve as evidence in support of her claim, not as the disclosure of necessary facts to ascertain whether she had a claim against Dr. Anderson”. In other words, the motion judge properly concluded that, on this record, the medical opinion being sought by Mr. Rachlin, formal or preliminary, was not required given the appellant’s knowledge of the material facts.
CONCLUSION
[38] As a result, I see no basis to interfere with the motion judge’s finding that the appellant knew the material facts upon which negligence is alleged against the respondent no later than December 19, 2003. The claim is therefore statute-barred and I would dismiss the appeal.
[39] I would award the respondent $5,100 in costs, inclusive of disbursements and applicable taxes.
“Paul Rouleau J.A.”
“I agree K. Weiler J.A.”
“I agree R.A. Blair J.A.
RELEASED: February 8, 2011