COURT FILE NO.: CV-06-0737-00
DATE: 20120405
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patricia Morris, personally and as personal representative of the Estate of William Stanley Morris, and Michelle Morris and Michael Morris
v.
Dr. Mohammed Aslam Ibrahim
BEFORE: Fragomeni J.
COUNSEL: A. Mladenovic, for the plaintiffs
M. E. Leon & B. Shaw, for the defendant
HEARD: March 12, 2012
E N D O R S E M E N T
Introduction
[1] The defendant, Dr. Ibrahim, brings a motion for summary judgment for a dismissal of a medical malpractice action on the grounds that the plaintiffs’ action was commenced after the expiry of the one-year limitation period prescribed by section 89(1) of the Health Professions Procedural Code.
[2] Dr. Ibrahim argues that as of November 2003, the plaintiffs knew or ought to have known that a viable cause of action for medical negligence against Dr. Ibrahim had arisen.
[3] The plaintiffs submit that they did not discover that they had a cause of action in this matter until April 2004. It was at that time that the plaintiffs learned that William Morris was likely to die from the cancer in his bladder. The plaintiffs argue that it was only at that time that the plaintiffs suspected that earlier intervention by Dr. Ibrahim would have resulted in a different outcome.
[4] In these circumstances, the plaintiffs submit that section 24(5) of the Limitations Act applies. Section 24(5) prescribes a two year limitation period commencing from the date that the cause of action was discovered. The plaintiffs filed their Statement of Claim on March 1, 2006, one month prior to the April 2006 deadline. The plaintiffs argue therefore, that the action is not statute barred.
Overview of the facts as set out in the evidentiary record filed at this motion
[5] William Morris had a long history of bladder cancer. Dr. Ibrahim treated William Morris from 1999 to 2003. In June 2003, Dr. Ibrahim performed a cystoscopy which identified two large diverticula. Prior to June 2003 Dr. Ibrahim had performed surgery to resect William’s bladder cancer in December 2001, August 2002, and December 2002.
[6] In June 2003, cystoscopy was abnormal. As a result Dr. Ibrahim recommended follow-up surgery to investigate further. A further surgery was scheduled for November 28, 2003.
[7] On November 28, 2003 Dr. Ibrahim attempted to resect the bladder tumour; however, he was not able to do so. Mrs. Morris was advised by Dr. Ibrahim that there was blockage and the polyps could not be removed. Dr. Ibrahim recommended further treatment, including chemo-therapy, before attempting to completely resect the tumour again.
[8] In her affidavit sworn December 13, 2011, Patricia Morris sets out the following at paragraphs 12 to 15:
In the aftermath of November 28, 2003 surgery, we were advised by Dr. Ibrahim that the cancer was too large to be completely removed during the operation. William would need further care including chemotherapy to cure the cancer. At no time were we told by Dr. Ibrahim or anyone at Peel Memorial Hospital that the cancer was inoperable or fatal.
In December 2003, William was seen by Dr. Sehdev, oncologist. We were advised that William would undergo chemotherapy which would make it easier to surgically remove the tumour at some point down the road. William began receiving chemotherapy on December 22, 2003.
Unfortunately, William did not tolerate chemotherapy very well. On or about March 17, 2004, William and our family met with his physician, Dr. Rheingold and it was decided that chemotherapy would be stopped because of all the negative side effects.
On or about April 13, [2004] William met with Dr. Rheingold again and at that time, we were advised that chemotherapy would not be restarted. This was the first time that we were ever advised that the cancer was inoperable and would ultimately take William’s life. Naturally, at that point, we questioned whether earlier surgery by Dr. Ibrahim could have resulted in a better outcome. No one was able to tell us that it would, but only that they wished he had brought him in sooner.
[9] In her examination for discovery on May 16, 2011, Mrs. Morris gave the following evidence on the issue of knowledge and delay:
- Q. So what was your reaction when he told you that they couldn’t remove the polyps in the bladder?
A. Um, we – we immediately thought ‘well, would this have happened if he had been in there earlier’ because up until then, the other two, three times that [he] had the polyps removed, they had done them within a short time and they were fine.
- Q. So you immediately had concerns in November of 2003 after the surgery about the timing of that surgery that was done?
A. That’s right.
- Q. And you thought if this had been done earlier, maybe he would have had a better result?
A. That’s right.
- Q. So your claim in this action that if Dr. Ibrahim had done the surgery earlier – in November – earlier than November 28th, 2003 that your husband would have had a better outcome?
A. We thought he might have.
- Q. You think that now?
A. We thought that then based on the other times that they had been removed.
Mrs. Morris’ communication with the Ombudsman
[10] At her examination for discovery Mrs. Morris was asked about her communication with the Ombudsman as it related to the issue of delay.
- Q. When did you speak with the ombudsman? Right after the surgery in November of ’03?
A. I can’t remember exactly when I talked to her, but I – I talked to her about the length of time it takes to schedule surgery.
- Q. But this would have been after the Dec – or the November, ’03 surgery?
A. Probably.
- Q. Who’s the ombudsman that you spoke with?
A. I can’t remember her name.
- Q. You said ‘her,’ it was a woman that you talked with?
A. It was a woman, yes.
- Q. And what did you tell her?
A. I just explained to her what had happened with the surgery, that in the time lapse it had gone from polyps to full tumour and why would it take so long and she said then that it shouldn’t have taken that long, that they requested or stipulated that it was an urgent request.
- Q. And by ‘request,’ you mean the requisition to have the surgery done?
A. The requisition, yes.
- Q. So just to summarize, you have this discussion with this ombudsperson and she told you this surgery should have been done earlier and the requisition should have been sent in earlier in November of 2003 or sometime around there, immediately after the surgery?
A. It was around there, because when we realized how sick he was then, I called her and said, you know, like why it would take so long to schedule it. And she investigated it and spoke to Dr. Ibrahim, and he apparently said to her that it should have been scheduled sooner, but that was just in a verbal conversation. I have no proof of it, I was just – I [was] talking to her on the telephone.
- Q. And again, -- that – okay, this was all by way of a phone conversation?
A. That was –
- Q. And we’re talking about one conversation or more than one with the ombudsperson?
A. I talked to her more than once.
- Q. So the first time you talked to her, she said she would look into it?
A. Right.
- Q. Okay, and you think that’s sometime after the surgery was done, around that time, the end of 2003?
A. Yes, it would have been, and then I talked to her after, after she had talked to Dr. Ibrahim.
- Q. So this is the second phone call?
A. Yes.
- Q. And do you remember around when that was?
A. No.
- Q. Was it a couple of weeks?
A. I can’t remember.
- Q. Well, was it weeks or months?
A. No, it would have been weeks, not – not a long time.
- Q. So he had the surgery November 28th, 2003. Would it have been before Christmas that you had this second call? Or after Christmas?
A. I don’t know.
- Q. Sometime around the holiday season?
A. It would have been yes. We were just trying to deal with everything that was going on and ...
- Q. And she tells you ‘I’ve spoke[n] to Dr. Ibrahim and he’s acknowledged that this requisition really should have been sent in earlier’?
A. Right.
- Q. What was your reaction at that point?
A. Mine?
MR. SHAR: Yeah.
A. It was obvious that it should have been earlier.
- Q. So this is just confirming what you had thought in November of ’03 after the surgery?
A. That’s right.
- Q. That it really – Ibrahim really should have scheduled this surgery earlier?
A. That’s right.
Complaint to the College of Physicians & Surgeons
[11] At her cross-examination on January 13, 2012, Mrs. Morris was asked about her complaint to the College of Physicians & Surgeons. In her December 13, 2011 affidavit, Mrs. Morris states at paragraphs 20 and 21:
After a period of time, I decided that I needed my question answered. I therefore filed a complaint with the College of Physicians and Surgeons of Ontario on March 8, 2005. Attached hereto as Exhibit C is a copy of my letter of complaint to the College of Physicians and Surgeons of Ontario which I sent on or about March 8, 2005.
On or about October 18, 2005, the College of Physicians and Surgeons of Ontario sent to me a Decision in my complaint. In that Decision, the College of Physicians and Surgeons of Ontario wrote:
“The Committee is very disturbed by Dr. Ibrahim’s management of Mr. Morris’ condition after June 2003. We are not satisfied that the events referenced by Dr. Ibrahim (SARS and the blackout) can explain the long delay in providing Mr. Morris with a surgical date, and we feel that he demonstrated an unfortunate and troubling lack of care in failing to arrange for timely surgery to deal with Mr. Morris’ recurrence of bladder cancer.”
[12] The following questions and answers are relevant from her cross-examination on January 13, 2012:
BY MS. LEON:
- Q. When you complained to the College in March of 2005, you believed that an earlier surgery arranged by Dr. Ibrahim would have saved Mr. Morris’ life?
A. It would have maybe avoided the extra steps for treatment that was needed after the November surgery.
- Q. So when you say the extra steps that were needed, you mean the additional treatment that Mr. Morris received from January through until May of 2005; correct?
A. Right. The chemo and the extra.
- Q. And you believe that because you believe an earlier surgery than November, 2003 would have resulted in removal of the polyps; correct?
A. Right.
- Q. So, prior to the College releasing its decision in this case, you believed that Dr. Ibrahim was responsible for Mr. Morris’ death’ correct?
A. Not in November. We knew that it was going to involve more treatments. We didn’t know that it was going to be...
- Q. Let me just stop you. That wasn’t my question. Prior to the College releasing its decision, which is at Exhibit D. And to help you there, the College’s decision is dated October 18th, 2005.
A. Yes.
- Q. So, prior to the College releasing that decision, you believed that Dr. Ibrahim was responsible for Mr. Morris’ death; correct?
A. We didn’t know.
- Q. I said you believed that Mr. Morris was responsible for Dr. Ibrahim’s (sic) death; correct?
A. We ... how do I put this?
- Q. Well, prior to October ...
MR. MLADENOVIC: Let her finish, please.
THE DEPONENT: We had so much going on with the death and everything coming together. We were trying to put things in sequence or trying to understand why things had happened the way they did. And it all went back to November, because the other procedures had been fairly simple. This one involved the extra treatments followed the November surgery.
BY MS. LEON:
- Q. Well, Ms. Morris, the only reason you drafted this letter in March of 2005 was because of the belief that we have been discussing, the belief that you expressed in this letter; correct?
A. It all started in November.
- Q. So you had this belief back in November?
A. I don’t know what to say. I really don’t. You have got to live through it to know what it was like. I really don’t know what to say.
Communication with Credit Valley Hospital
[13] At her examination for discovery Mrs. Morris gave the following information about her contact with someone at the Credit Valley Hospital:
Q. And you said you spoke with someone at some point at Credit Valley about the timing of Dr. Ibrahim’s surgery. Do you remember who that was that you spoke with?
A. We talked to so many doctors the first day we were down there, I lost count. And several made the comment ‘if you had only brought him here earlier, we could have saved him; that it wasn’t necessary that had happened.
Q. And again, these discussions that you had with these doctors confirmed that you knew back in November of ’03, that the surgery should have been done earlier, in your opinion?
A. That’s right....
Q. ... And did you express your concerns again at this point about the timing of the surgery that had been done?
A. Yes, and that was when they told us if you’d only brought him here earlier.
Q. Right, and I think you said that was what you had thought back in November of ’03?
A. Yes.
[14] Dr. Ibrahim was also examined and with respect to the tumour he observed and attempted to resect on November 28, 2003 he have the following evidence as to whether it was related to the abnormalities noted in June 20, 2003 cystoscopy:
Question 1039: So, you did not believe that what you saw as a suspicious area on his bladder on June the 20th was in any way related to what you saw on November 28th, is that fair?
Answer: No.
Question 1040: You didn’t believe it was related?
Answer: I did not, no.
Question 1017: Doctor, when you excised this tumour from the man’s bladder, is it your evidence that you were not able to form an impression in any way, shape or form about the length of time that this tumour had existed in his bladder?
Answer: That is true.
Question 1018: That is true?
Answer: Yes.
Question 1019: So, you can’t tell me whether it was a matter of days, weeks, or months that it existed. Is that your evidence?
Answer: I can’t.
Question 1020: Are you able to tell me what is most likely?
Answer: No I don’t know, actually, I am not sure.
Question 1027: So, was it not a consideration for you, when you saw the size and extent of the tumour in his bladder in November, was it not something you considered or thought about? “My goodness, how long has this man had this tumour?” Was that not something you even considered?
Answer: Well, I did make the comment that I felt the biology of the tumour had changed. And it was a far more aggressive kind of cancer than had been encountered previously.
Question 1029: And what does that tell us about how long it had existed within his bladder?
Ms. Leon: Well, what did he think at the time?
Question 1030: Yes.
Answer: I thought it probably had a short period of time, probably from the look of it and the pathology results.
Question 1031: What was it about the pathology and the look of it that suggested to you that it had only existed for only a short period of time?
Answer: It looked aggressive. It looked solid, as opposed to polyp-like previously. And when I resected it, the muscle underneath looked unhealthy indicating that it was a much more aggressive type of cancer, going through [the] bladder muscle. Even from the appearance of it.
Question 1032: So, based on your observations, then you did form some impression of the relative period of time that this cancer had existed: is that fair?
Answer: I think so, yes.
Question 1033: And so when you say, in your impression, it was relatively short period of time, what does that mean?
Ms. Leon: Did you have a view, at the time, as to what that meant?
Question 1034: Well, what do you mean now when you say “short period of time”?
Answer: I don’t know exactly, but it is not ... something that would have been there for months and months, I don’t think.
Question 1035: And, again, why? Because of its morphology, because of its aggressive nature?
Answer: Yes.
Question 1036: Because of its size?
Answer: It could have been ... you know, a very short period of time from the ... I can’t put a date on it.
Ms. Leon: And I don’t want you to guess.
Answer: No, I am not guessing.
Question 1037: We are throwing words out like “short,” “very short.” I don’t know what you mean when you say that. I don’t know how a urologist thinks, let alone how you think. So you will have to explain to me what you mean by “very short.” When you say “very short,” are you suggesting that you don’t believe it was there as of June?
Answer: Yes.
Ms. Leon: He said he didn’t think it had been there for months and months.
Answer: Yes, I don’t believe it had been there since June.
Position of the defendant, Dr. Ibrahim
[15] Mrs. Morris knew the material facts before she spoke to the Ombudsperson in 2004. The Ombudsperson simply confirmed that information that she already knew in November 2003.
[16] Mrs. Morris knew the material facts before she spoke to Mr. Morris’ physician in 2004. Any information from his physician would have simply confirmed what she already knew in November 2003.
[17] Mrs. Morris, by her own admissions, knew all of the material facts required to advance their action by no later than the end of November 2003.
[18] On the evidentiary record at this motion there is no genuine issue for trial.
[19] The applicable limitation period is section 89(1) of the Heath Professionals Procedure Code, namely one year, as the claim was discovered prior to January 1, 2004.
[20] Mrs. Morris knew in November 2003 the materials facts upon which to base her allegation of negligence as against Dr. Ibrahim. The defendant argues that none of the events after November 2003 added to Mrs. Morris’ knowledge of the material facts. Any information obtained simply confirmed what she already knew in November 2003.
Position of the Plaintiffs
[21] The critical issue at this motion is what did Mrs. Morris know or ought to have known on November 28, 2003. The plaintiffs submit that Mrs. Morris did not have the material facts necessary to give rise to her belief that she had a cause of action in negligence as against Dr. Ibrahim.
[22] Dr. Ibrahim admitted he could not say the tumour he observed on November 28, 2003 was related to observations Dr. Ibrahim made on June 20, 2003. It is not reasonable for the defendant to assert that the plaintiffs knew or ought to have known on November 28, 2003 that,
(a) the tumour was related to the observations from June 20, 2003;
(b) that the delay in operating allowed the tumour to grow, resulting in the inability to resect the tumour;
(c) that the delay resulted in the need for further treatment; and
(d) that the tumour would ultimately lead to Mr. Morris’ death.
[23] It was only after being advised that the cancer was inoperable that the plaintiffs began to question whether earlier surgery by Dr. Ibrahim could have led to a better result. This questioning by the plaintiffs occurred in April 2004.
[24] In all of those circumstances the relevant legislation is section 24 of the Limitations Act 2002, as the claim was not discovered before January 1, 2004.
Analysis
Summary Judgment Test
[25] Rule 20.01(3) provides that a defendant may move for summary judgment after delivering a statement of defence. Rule 20.04(1) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[26] Rule 20.04(2.1) states:
Powers
(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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[27] In deciding whether to exercise these powers, the judge, must determine if the full appreciation of the evidence and issues that is required to make such dispositive findings can be achieved by way of summary judgment or if such a full appreciation can only be achieved by way of a trial. This principle was dealt with in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, released December 5, 2011. At paras: 50 and 51:
[50] We find that the passages set out above from Housen, at paras. 14 and 18, such as “total familiarity with the evidence”, “extensive exposure to the evidence”, and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
[51] We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
[28] In Combined Air Mechanical Services Inc., supra, the Court set out several factors to be considered when assessing the type of actions in which the full appreciation of the evidence and issues can only be achieved at trail. At para. 148:
[148] However, both the Mauldin group action and the Bruno action bear all the hallmarks of the type of actions in which, generally speaking, the full appreciation of the evidence and issues can only be achieved at trial:
▪ The motion record is voluminous – 28 volumes of evidence together with additional evidence filed on the motions themselves;
▪ Many witnesses gave evidence – 18 witnesses filed affidavits, and cross-examinations on those affidavits took three weeks;
▪ Different theories of liability were advanced against each of the defendants;
▪ Numerous findings of fact were required to decide these motions;
▪ Credibility determinations lay at the heart of these disputes, and the evidence of the major witnesses – Mauldin, Bruno, Hryniak and Peebles – conflicted on key issues; and
▪ Assessing credibility was made more difficult by the near absence of reliable documentary yardsticks.
[29] Rule 20.02 (2) states:
EVIDENCE ON MOTION
20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
[30] In Jagosky v. Huntsville (Town), [2010] O.J. No. 3562, Justice Quinlan stated the following at para. 51;
- The issue of “discoverability” of a claim was dealt with in Lawless v. Anderson. The motions judge reviewed the written record before him and concluded that the moving party had demonstrated that there was no issue for trial and that the claim was commenced beyond the limitation period. The court noted that “one likely consequence of the new powers exercisable by a motion judge will be an enhanced ability to determine discoverability issues on summary judgment motions because the fact finding restrictions placed on judges under old Rule 20 have been removed, or at least very significantly loosened.
The case law dealing with discoverability.
[31] In Lawless v. Anderson, 2011 ONCA 102, [2011] O.J. No. 519 (Ont. C.A.) P.S. Rouleau, J.A. dealt with the case law on this issue commencing at paragraph 21. It is important and informative to set out Justice Rouleau’s framework in these reasons. Justice Rouleau sets out the following at paras. 21 to 28 and para. 36:
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 CanLII 954 (ON CA), (1998), 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 CanLII 5359 (ON CA), (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis 2000 CanLII 5744 (ON CA), (2000), 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 CanLII 21532 (ON SC), (2004), 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 CanLII 1779 (ON CA), (1999), 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]
[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]
Regarding the requirement of having a medical opinion
[32] The defendant submits that this is not a case where the plaintiffs required additional information such as an expert opinion to discover that there had been a misdiagnosis or delay in treatment. In McSween v. Louis 2000 CanLII 5744 (ON CA), [2000] O.J. No. 2076, Goudge, J.A. states the following at paras. 46 to 49:
[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 CanLII 1779 (ON CA), (1999), 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 1991mammogram 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.”
[33] The Defendant submits the following at paragraphs 75 to 76 of his factum:
- In any event, Dr. Robinette’s opinion simply provides additional information to support the claim that had already been discovered in November 2003. As the Ontario Court of Appeal stated in Lawless v. Anderson:
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 proceedings with a claim, in order to rebut any future motions brought by the respondent to dismiss the claim... 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.
- As the Court of Appeal stated in McSween v. Louis:
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.
[34] On this issue, the defendant also makes reference to Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 at para. 18:
It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.
[35] The plaintiffs argue that medical advice and opinion and information was necessary for the plaintiffs to determine if they had a claim. The plaintiffs argue that their case falls squarely within paragraph 48 of McSween, supra. The plaintiffs also point to the decision in Bearden v. Lee, [2003] O.J. No. 1261 to support this position at paras. 35 to 37; 40 and 56 to 58:
In recent years, appellate courts have provided guidance to the lower courts with respect to what constitutes knowledge or discovery of material facts sufficient to start the ticking of the limitation clock.
In Aguonie v. Galion Solid Waste Material Inc. 91998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.), Borins J. for the Ontario [Court] of Appeal said at p. 170:
The discovery ... involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability. As Major J. states in Peixeiro, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, supra, at p. 442: “The discoverability principle applies to avoid the injustice of precluding an action before the person is able to sue.” This being so, it follows that it applies to all cases in which the issue is the time when a cause of action arises for the purpose of determining the commencement of a limitation period. As I have stated, this principle provides that a cause of action arises for the purpose 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.
They have recognized the plaintiffs often will need the input of medically trained persons before he or she will be in a position to discover all of the facts, to know whether he or she has a right to relief against a doctor.
The Ontario Court of Appeal did not accept the submissions of counsel for the radiologist. It did not hold that the limitation period started to run when she was diagnosed with cancer or when her counsel received the medical records. The appellant/plaintiff did not have the requisite facts until June 19, 1995, when she received the medical opinion advising of the negligence of the radiologist in interpreting her mammogram on March 1, 1991. She was not in a position to recognize that she had a cause of action against the radiologist until she received the medical advice that he had breached the standard of care owed to her.
In my view, it would be unfair to conclude that the one-year limitation commenced to run against the plaintiffs on July 4 or July 16, 19991 because the existence of a cause of action should have been obvious to Bearden, when the medical experts called by the defendants expressed the opinion at trial that it was not obvious at all.
As a review of the medical records in isolation did not cause medically trained readers such as O’Connor and Hutchinson to conclude that on July 1-2, 1991. Bearden was obviously suffering from appendicitis, it cannot be said that it should have been obvious to Bearden, a lay person, without medical input lead to an obvious conclusion that Lee and Abramson were negligent.
In my view, Bearden clearly needed medical input before he could know about a potential cause of action. I accept the evidence of Abelsohn that when he raised the possibility of a lawsuit with Bearden, Bearden seemed surprised. I accept Bearden’s evidence that he asked, “Who would you sue and for what?” and that he never considered bringing a lawsuit until Abelsohn raised that possibility on August 3, 1005. He had thought the doctors at TWH saved his life and had not differentiated between those who treated him on July 1-2 and those who treated him on July 4-16. In his mind, July 1-July 16, 1991 was one event.
[36] The plaintiffs submit that the report of Dr. Robinette, set out at Tab E of the responding record, demonstrates that the issues in this case are not simple. The case is complex. The defendant objected to Dr. Robinette’s report being filed as evidence at this motion on the basis that the report was not in Affidavit form from Dr. Robinette. The only purpose for which the report was being referenced to by the plaintiffs was to demonstrate that the case had complexity.
[37] There are two remaining cases that were filed and prior to setting out my conclusions, I will refer briefly to them. In Berger v. Benchitrit, [2002] O.J. No. 2857, Spiegel, J. stated the following at paras: 15 and 16:
Mr. Sieger, nonetheless, submits, that on the basis of the portions of the plaintiff’s affidavit which I have quoted, the plaintiff did not have the requisite knowledge until he received the decision of the College essentially confirmed what he already believed or suspected when he made his formal complaint. While I have considerable sympathy with the plaintiff’s position, is not necessary that a claimant have “conclusive proof”, “conclusive evidence” , or “hard evidence” of the defendant’s negligence before the limitation period starts to run.
In McSween v. Louis (1999), 2000 CanLII 5744 (ON CA), 187 D.L. R. (4th) 446 (C.A.) Feldman J.A. writing for the majority, comments on what triggers the limitation period:
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 [s.89(1)] it is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant.
[38] In Newlove v. Perie, [1995] O.J. No. 1393, Wilkins, J. set out the following at paras. 71 to 74:
In order to answer the first question, I have recited in detail the degree of knowledge and information clearly expressed by Judith Newlove in her evidence before me and by her correspondence which were marked as exhibits. To the extent that any lay person can have knowledge of the facts which form the basis of allegations of negligence or malpractice, it is quite clear that Judith Newlove had a fervent belief that all of the circumstances giving rise to the claims for damages were attributed to Valium consumption. Further, she believed the defendant had acted improperly by providing the deceased with ongoing and unmonitored access to the drug. To the extent a lay person can form a belief or reach a conclusion with any degree of moral certainty, Mrs. Newlove had reached this position long before a time one year prior to the commencement of the action.
There is, however, a substantial difference between a fervently-held belief developed by an unqualified lay person and knowledge of the facts upon which allegations of negligence or malpractice may be made against a medical practitioner. Judith Newlove recognized, in her evidence, that there could have been other factors which resulted in the change in the mental status of the deceased. Judith Newlove, to the fullest extent of her lay person’s ability, was completely satisfied that Dr. Petrie had acted negligently in prescribing Valium to the deceased. She was also completely satisfied to the fullest extent of her lay person’s ability that it was the Valium that had given rise to the circumstances upon which the claims were based. Notwithstanding these beliefs, it is clear that she had no scientific opinions or expert assistance of a medical or pharmacological nature to aid her in reaching these conclusions. The greatest amount of scientific information available to this plaintiff in developing her knowledge was the research work conducted by her 14 year old son and some “government” pamphlets on the subject.
It was clear from the evidence before me that the deceased was unwilling to co-operate in providing his medical records and, as such, the plaintiffs did not have access to the information that the deceased had provided Dr. Petrie. Judith Newlove therefore had no access to any factual information in Dr. Petrie’s clinical notes and records. These documents may have explained the basis upon which he had formed a diagnosis or reached a conclusion which warranted the Valium prescriptions. To that extent, any opinions or conclusions she reached were formed in a vacuum.
Without intending to denigrate the conclusions reached by Judith Newlove or the methods by which she reached those conclusions, the complex medical practice and pharmacological considerations necessary to gain knowledge on the subject matter framed in the statement of claim make it clear her conclusions were of the most simplistic levels. An analogy which comes to mind is the conceptual reasoning of the Ancients that the crowing of the rooster awoke the sun, causing it to rise from bed and illuminate the earth.
Conclusion
[39] On the evidentiary record before me I find and conclude that there is a genuine issue requiring a trial. I am satisfied that the plaintiffs have met their onus in establishing that a full appreciation of the evidence and issues can only be achieved by way of a trial.
[40] Although the defendant has pointed to certain portions of Mrs. Morris’ examination for discovery testimony and her cross-examination conducted on January 13, 2012, it is important to read her evidence as a whole. It is also important to read her evidence within the context of the balance of the evidentiary record before me.
[41] I cannot accept the defendant’s argument that Mrs. Morris’ discovery of the material facts which gave her a basis to issue a claim for medical negligence against Dr. Ibrahim crystallized on November 28, 2003. In isolation some of the answers given by Mrs. Morris could point in this direction, however, as I indicated, isolating those questions and answers would lead to a characterization of her testimony that is incomplete and misleading. Read as a whole, it is not at all clear that Mrs. Morris knew or ought to have known that as of November 28, 2003 she had the material facts necessary to determine that she had a claim for medical negligence as against Dr. Ibrahim.
[42] There is no doubt that as of November 28, 2003 Mrs. Morris expressed concerns about the delay occasioned in scheduling the follow-up surgery from June 20, 2003 to November 28, 2003. The evidence makes it clear she was asking that question, namely what effect has the delay caused.
[43] However, to suggest that because she expressed that concern or had that belief, as it related to the delay, she knew or should have known at that time that she had a claim is in my view, an untenable position advanced by Dr. Ibrahim.
[44] Mrs. Morris’ evidence at her cross-examination in my view, points away from a definitive knowledge of material facts that she had a cause of action. Her belief, on its own, is insufficient to ground the knowledge required as it relates to a cause of action. Her expressed concern on November 28, 2003 about the delay to its impact on William’s care is insufficient to establish she knew or ought to have material facts sufficient to anchor a cause of action for medical malpractice. For example, at her cross-examination on January 13, 2012 the following questions and answers demonstrate that uncertainty:
BY MS. LEON:
- Q. When you complained to the College in March of 2005, you believed that an earlier surgery arranged by Dr. Ibrahim would have saved Mr. Morris’ life?
A. It would have maybe avoided the extra steps for treatment that was needed after the November surgery.
Q. So when you say the extra steps that were needed, you mean the additional treatment that Mr. Morris received from January through until May of 2005; correct?
A. Right. The chemo and the extra.
- Q. And you believe that because you believe an earlier surgery than November, 2003 would have resulted in removal of the polyps; correct?
A. Right.
- Q. So, prior to the College releasing its decision in this case, you believed that Dr. Ibrahim was responsible for Mr. Morris’ death’ correct?
A. Not in November. We knew that it was going to involve more treatments. We didn’t know that it was going to be...
- Q. Let me just stop you. That wasn’t my question. Prior to the College releasing its decision, which is at Exhibit D. And to help you there, the College’s decision is dated October 18th, 2005.
A. Yes.
- Q. So, prior to the College releasing that decision, you believed that Dr. Ibrahim was responsible for Mr. Morris’ death; correct?
A. We didn’t know.
- Q. I said you believed that Mr. Morris was responsible for Dr. Ibrahim’s (sic) death; correct?
A. We ... how do I put this?
- Q. Well, prior to October ...
MR. MLADENOVIC: Let her finish, please.
THE DEPONENT: We had so much going on with the death and everything coming together. We were trying to put things in sequence or trying to understand why things had happened the way they did. And it all went back to November, because the other procedures had been fairly simple. This one involved the extra treatments followed the November surgery.
BY MS. LEON:
- Q. Well, Ms. Morris, the only reason you drafted this letter in March of 2005 was because of the belief that we have been discussing, the belief that you expressed in this letter; correct?
A. It all started in November.
- Q. So you had this belief back in November?
A. I don’t know what to say. I really don’t. You have got to live through it to know what it was like. I really don’t know what to say.
[45] In his own testimony Dr. Ibrahim could not say with any certainty what the link was, if any, between the June 20, 2003 observations and the November 28, 2003 observations.
[46] It is not necessary for me to consider the expert opinion of Dr. Robinette in this analysis. It is clear from Dr. Ibrahim’s own words that the issue of causation may not be clear and may, as the plaintiffs’ have argued, be more complex than the defendant has characterized it at this motion.
[47] At paragraph 15 of her December 13, 2011 affidavit, Mrs. Morris was clear that after she met with Dr. Rheingold on or about April 13, 2004, that was the first time that they were advised that the cancer was inoperable and would ultimately take Williams’ life.
[48] Having considered the guiding legal principles set out by our Court of Appeal in Combined Air Mechanical Services Inc. this case falls within that type of actions in which full appreciation of the evidence and issues can only be achieved at trial.
[49] For all of these reasons the summary judgment motion brought by the defendant, Dr. Ibrahim, is dismissed.
[50] The plaintiff shall serve and file written submissions on costs within 10 days. The defendant shall then serve and file his submissions on costs within 10 days after being served by the plaintiffs. The plaintiff shall serve and file any reply submissions within 7 days.
Fragomeni J.
DATE: April 5, 2012
COURT FILE NO.: CV-06-0737-00
DATE: 20120405
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patricia Morris, personally and as personal representative of the Estate of William Stanley Morris, and Michelle Morris and Michael Morris
v.
Dr. Mohammed Aslam Ibrahim
BEFORE: MacKenzie J.
COUNSEL: A. Mladenovic, for the plaintiffs
M. E. Leon & B. Shaw, for the defendant
ENDORSEMENT
Fragomeni J.
DATE: April 5, 2012