The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.
The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.
Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.
The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.
Leave to amend and substitute the physicians for the Doe defendants was granted.
