ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 02-BN-3163
DATE: 2012-05-29

B E T W E E N:

ELLEN DEBIASIO, DECEASED by her Estate Trustee without a Will, CATALINA TABORSKY, and CATALINA TABORSKY personally

Amani Oakley, for the Plaintiffs

Plaintiffs

• and -

YORK CENTRAL HOSPITAL, DR. VITO SORRENTO, DR. JOHN HAYAMI, DR. VINCENT MAK, DR. STEPHEN GLAZER, DR. JAMES CULNAN, DR. DAVID WORTZMAN, DR. PATRICK BARNES, DR. MITRA NIROUMAND, L. DIETRICH, C. MALLET, EMERGENCY NURSE S. SEABROOK, EMERGENCY NURSE C. SMITH, EMERGENCY NURSE J. CHEUNG or LEUNG, NURSES JANE & JOHN DOE (representing the nurses who cared for ELLEN DEBIASIO at triage on April 6, 2000 and in the Emergency Department and on 4-East on April 6 and 7, 2000

Jane A. Langford, Sara Kushner for the Defendants, Dr. Vito Sorrento, Dr. John Hayami, Dr. Vincent Mak, Dr. Stephen Glazer, Dr. James Culnan, Dr. David Wortzman, Dr. Patrick Barnes and Dr. Mitra Niroumand
Cindy Clarke, for the Defendants, York Central Hospital, L. Dietrich and C. Mallet

Defendants

HEARD: March 2, 2012 and April 17, 2012

REASONS FOR JUDGMENT

Justice M. J. Donohue

1The defendant physicians seek summary judgment on the basis that this action is statute barred, having been commenced more than one year after the plaintiff knew or ought to have known the facts upon which her claim was based.

2The action involves allegations of medical negligence in the medical care rendered to the late Ellen Debiasio. She was treated at York Central Hospital between April 4 and 9, 2000. Ms. Debiasio passed away due to necrotizing fasciitis or flesh-eating disease on April 13, 2000.

3It is the position of the defendant doctors that the limitation tolled on April 13, 2001 pursuant to section 89 of the Regulated Health Professionals Act .

4The notice of action was actually issued on April 9, 2002.

Which Limitation Applies

5The respondent plaintiff argued that the applicable limitation period is two years from the date of death pursuant to s. 38(3) of the Trustee Act . That statute says an action under this section shall not be brought after the expiration of two years from the death of the deceased. Her argument was that the Trustee Act lengthened the time to sue. This action was, in fact, issued within two years of the late Ellen Debiasio's death.

6Section 38(1) of the Trustee Act, however, states that:

The executor or administrator of any deceased person may maintain an action for all torts or injuries to the person of the deceased in the same manner and with the same rights and remedies as the deceased would, if living have been entitled to do...( my emphasis).

7The Court of Appeal dealt with this very point in Camarata v. Morgan , 2009 ONCA 38 , [2009] O.J. No. 621 and confirmed that the Trustee Act adds a second limitation period to any limitation already applicable. At paragraph 8 the Court states:

Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act. Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action. In some circumstances, s.38(3) will effectively shorten what would otherwise be the applicable limitation period: see Swain Estate v Lake of the Woods District Hospital, supra. Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action.

8I am satisfied that s.89(1) of the Regulated Health Procedures Act sets out the applicable limitation period:

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.

9The pivotal issue is the date on which the plaintiff knew or ought to have known the facts upon which the negligence is alleged and upon which her claim is based. The claim had to have been brought within one year of discovering the material facts.

Background

10The plaintiff is Catalina Taborsky who brings the action on behalf of herself and the estate of her sister Ellen Debiasio.

11Ms. Taborsky was with her sister at the hospital as she became more and more ill and complained that no doctor attended her sister. Initially the doctors advised that her sister had an infection. Later, they informed her that there was a new disease process. Ms. Debiasio was then transferred to Sunnybrook Hospital and died a few days later.

12Ms. Taborsky consulted a lawyer, Mr. Colangelo, within a month of her sister's death with a view to commencing an action against the defendant physicians. Her lawyer had the complete hospital records by September 2000 and sought an expert medical opinion. In December 2000, the plaintiff contacted the Coroner's office requesting an inquest. She said she did this because she felt her sister was not being looked after in the hospital. In January 2001, the lawyer Colangelo advised her that the expert opinion he obtained was not supportive. He advised against pursuing litigation. By February 2001, Mr. Colangelo had closed his file. The plaintiff continued to seek a lawyer to take the case and a medical opinion to support the claim of negligence.

13On March 13, 2001, she faxed a letter to lawyer Ava Hillier stating, “I would appreciate you getting back to me, as time is of essence, in the case of an intended medical malpractice suit...”

14Ms. Taborsky kept searching on the internet and in the yellow pages looking for a lawyer. She also tried to get a medical opinion regarding the claim. She contacted Dr. Donald Low, a specialist in necrotizing fasciitis, and he advised her he did not wish to review her sister's case.

15Ultimately, in November 2001, she found Dr. Tienzo in New York State. This doctor was an expert in the treatment of necrotizing fasciitis. She was willing to review the records and wrote out the notes of errors made in the management of Ms. Debiasio's care. Armed with these notes, Ms. Taborsky was able to retain counsel who then issued the claim in April 2002. Ultimately, Dr. Donald Low was retained and provided a supportive medical report.

16The respondent plaintiff argues that the material facts were discovered on which the limitation would begin to run were Dr. Tienzo's interpretation of the records. Her position is that her claim was issued within the year of that discovery in November 2001.

17The applicant defendants argue that the material facts were available and obvious at the time of treatment and death of Ms. Debiasio in April 2000.

18I find that Mrs. Taborsky knew there was a one year limitation applicable but could not find a lawyer willing to pursue the case.

19In part, I find that she could not obtain counsel as there was insufficient facts on which to base a case of negligence.

Material Facts

20Counsel for the defendant doctors summarized the events in York Hospital succinctly in argument and in the factum.

21Ellen Debiasio, previously apparently healthy, attended the emergency room on April 4, 2000 complaining of headache, dizziness and chest pain. She was assessed twice that evening by Dr. Hayami and kept overnight for observation and treatment. In the morning of April 5, she was reassessed by Dr. Hayami and he ordered additional investigations. She was discharged in an improved condition with a provisional diagnosis of gastrointestinal illness, headache and hypokalemia.

22Mrs. Debiasio returned to the emergency department on the evening of April 6, 2000 complaining of vomiting, diarrhoea, abdominal cramping and fever. Dr. Wortzman assessed her and referred her to a specialist in internal medicine for consultation. She remained in the ER overnight for observation.

23In the morning of April 7, 2000 Dr. Mak, an internist, assessed her and arranged for her to be admitted for treatment of gastric-intestinal illness. He referred her to Dr. Culnan, a gastroenterologist, for further management.

24Dr. Culnan assessed her that evening. He was concerned she had a severe form of pseudo membranous enterocolitis related to a prior antibiotic. He ordered tests to confirm his working diagnosis and placed her on medication pending the results. On the morning of April 8, 2000 there was improvement in her symptoms.

25However, in the evening of April 8, 2000 her condition worsened and Dr. Niroumand, an internist, assessed her and transferred her to Intensive Care. In the morning of April 9, 2000 Dr. Glazer, a specialist in internal medicine, assessed Mrs. Debiasio and determined she was in septic shock, initiated additional treatment and investigations of possible necrotizing fasciitis. He requested consultations from a nephrologist and a surgeon. Later that day Dr. Glazer arranged for her to be transferred to Sunnybrook Hospital. She passed away April 13, 2000.

26The defence points out that Mrs. Taborsky was at the hospital for much of this time and personally observed the care and treatment rendered by the defendant physicians. She complained that from April 8, 2000 at noon no doctor saw her sister until almost midnight of the following day. She was begging the nurses to get the doctor to look at her sister.

Analysis

27The defence argued that Mrs. Taborsky knew the material facts of her claim at the time of her sister's death; had knowledge of the care and treatment provided by the defendant physicians and was of the view that care and treatment had been negligent.

28The defence submitted that it would be obvious there were sufficient material facts on which to base a cause of action. I am not satisfied that that is the case here. Reading the facts, it appears the doctors took some days determining the correct diagnosis and ultimately the patient died. I find there is no obvious negligence or glaring error that would point to a cause of action.

29The initial medical legal opinion sought by her first lawyer on these facts was not supportive. Dr. Low initially would not assist in giving a medical opinion on these facts. Mrs. Taborsky was unable to find counsel to bring her cause of action until the material facts were set out in the medical notes of Dr. Tienzo who interpreted the medical records and pointed to the errors made. I find it was that information that laid the foundation of the claim.

30The one year limitation period runs from the date the plaintiff knew or ought to have known the facts on which the malpractice is alleged. The plaintiff argues the issue of discoverability which has long been held to be a fact-based analysis. ( Lawless v. Anderson , 2011 ONCA 102 , [2011] O.J. No.519 (C.A.) para. 22 ).

31Counsel for the defendants call Dr. Tienzo's consultation an opinion; but it was also clearly acquiring knowledge of the material facts and material errors. Dr. Tienzo analyzed the medical records and blood work to point out the warning signs that the doctors should have observed.

32In some cases for the plaintiff to “discover” the claim advice is needed from a person who is medically trained. This is particularly so where the medical records are complex and require a medically-trained person to interpret. ( Lawless , supra , para. 24 .) I find that to be the case here.

33The discoverability principle 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. The 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.” ( Lawless , supra , para. 22 .)

34It is therefore quite clear than an element of the cause of action for discoverability purposes is knowledge that someone erred. Justice Lauwers noted in Zurba v. Lakeridge , 2010 para. 36.....

In some cases, this knowledge will be obvious, for example, where it is the right knee and not the left knee on which surgery was to occur. In other cases, however, the situation is much more nuanced and will require medical opinion.

35The defence argued that the plaintiff was seeking proof of her claim, simply a medical opinion to make her case winnable. The facts available to Ms. Taborsky were that the doctors over several days came up with several different diagnoses before the correct one. This is not unusual. Her other complaint was the doctors not visiting her sister in person for a long period. The doctors not attending alone, does not make the claim; they could be reviewing blood work and working on the case and not informing the patient's family. Without more information that fact on its own does not speak to obvious negligence.

36If the material facts on which to base a claim were so obvious one wonders why the initial opinion sought by Colangelo was not supportive.

37On these facts however I do not find there was a case until Dr. Tienzo did her analysis of the test results and pointed out the errors.

38Another element of the principle is efforts to discover the material facts by the exercise of reasonable diligence. I find on the facts here that Ms. Taborsky acted promptly and tirelessly to get the information needed to determine whether a cause of action existed and then proceeded to get it issued.

39Armitage v. the Brantford General Hospital , decided by Justice Cavarzan, 2004 32184 (ON SC) , [2004] O.J. No. 2012 (S.C.J.), was a similar fact situation. Mr. Armitage brought his wife to hospital in July 1998 complaining of severe low back pain, diarrhoea and disorientation. The ER physician diagnosed back strain with diarrhoea due to an unknown dietary cause. She was discharged home. In the next 20 hours her condition worsened and she returned to hospital. She died shortly afterward. Justice Cavarzan stated, “While the plaintiff had suspicions at this point, he had no facts.”

40The court decided that a professional opinion was required here in order to learn the requisite facts. Before that time the plaintiff had no facts on which to base a claim. Justice Cavarzan rejected the notion that a lay person could possibly interpret complex medical information without the assistance of a medical expert. Just having the records alone was not sufficient to say there was misconduct.

41On the issue of discoverability at paragraph 30, Justice Cavarzan stated the following questions had to be answered:

(a) When did the plaintiffs first learn the facts upon which they allege misconduct by the doctor? and

(b) When ought the plaintiffs to have discerned those facts from information at hand, or available to them by reasonably diligent investigation?

42On the facts before him, Justice Cavarzan found that a layman would not be able to interpret the blood test results in the report provided by the hospital to Mr. Armitage.

43I find Ms. Taborsky to be in a very similar position to Mr. Armitage. She was upset and suspicious of the care but had no facts.

44I find this is not an appropriate case for the granting of summary judgment as the plaintiff brought her action within the year of when she knew or ought to have known there was a cause of action. The motion for summary judgment is, accordingly, dismissed.

45The parties may make written submissions of three pages or less regarding costs within 14 days of this order.

M.J. DONOHUE J.

Released: May 29, 2012

COURT FILE NO.: 02-BN-3163

DATE: 2012-05-29

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ELLEN DEBIASIO, DECEASED by her Estate Trustee without a Will, CATALINA TABORSKY, and CATALINA TABORSKY personally Plaintiffs - and – YORK CENTRAL HOSPITAL, DR. VITO SORRENTO, DR. JOHN HAYAMI, DR. VINCENT MAK, DR. STEPHEN GLAZER, DR. JAMES CULNAN, DR. DAVID WORTZMAN, DR. PATRICK BARNES, DR. MITRA NIROUMAND, L. DIETRICH, C. MALLET, EMERGENCY NURSE S. SEABROOK, EMERGENCY NURSE C. SMITH, EMERGENCY NURSE J. CHEUNG or LEUNG, NURSES JANE & JOHN DOE (representing the nurses who cared for ELLEN DEBIASIO at triage on April 6, 2000 and in the Emergency Department and on 4-East on April 6 and 7, 2000 Defendants REASONS FOR JUDGMENT M.J. DONOHUE J.