COURT FILE AND PARTIES

COURT FILE NO.: CV-09-394241
DATE: 2012-06-04

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

SHAUNA THOMPSON, ROBERT RAVI and JAIMEE CURTIS by her litigation guardian ROBERT RAVI

J. W. Strype , for the plaintiffs

Plaintiffs

• and -

DR. YOGI SEHGAL, DR. JAMES SHERSTAN and DR. JOANNE L. FRY

M. P. Sammon and R. Gillis , for the defendants

Defendants

HEARD: April 30, 2012, at Toronto, Ontario

Michael G. Quigley J.

Reasons For Decision

[ 1 ] The plaintiff, Shauna Thompson, has commenced an action for medical malpractice against her two former physicians, Dr. Yogi Sehgal and Dr. Joanne Fry, and against Dr. James Sherstan, who performed an allegedly deficient biopsy on her breast. Her claim against these physicians is that they were negligent in the treatment they provided to her and that they negligently failed to take appropriate steps to diagnose the malignant cancer in her right breast that was discovered in March of 2007. That cancer went into remission for two full years following treatment before it returned with a vengeance. The defendant physicians describe this as a “delayed diagnosis” case, but there has been no delay in the determined progression of Ms. Thompson’s breast cancer since it returned in October of 2009. Shauna Thompson is now dying of terminal breast cancer.

[ 2 ] On this motion, the defendants move for summary judgment dismissing her claim against them under Rule 20 of the Rules of Civil Procedure on the basis that the limitation period has expired. They say she delayed too long in commencing her action against them. Thus, the principal question on this motion is whether Ms. Thompson's claim is statute barred or whether the application of the limitation period, and when it started to run, is a genuine issue requiring a trial.

[ 3 ] A subsidiary issue is whether the plaintiff, Robert Ravi, has standing to sue in this case, either on his own or as litigation guardian for her daughter, Jaimee Curtis. Mr. Ravi is Ms. Thompson's husband and her daughter, Ms. Curtis, lives with them. The parties have agreed, however, that this second issue is to be dismissed without costs. They also agree that regardless of the outcome on this principal claim for summary judgment, each of the parties will bear its own costs.

[ 4 ] In my opinion, this is not a case where summary judgment can or should be granted. The defendants rely on the recent decision of our Court of Appeal in Lawless v. Anderson [1] as the governing law. Under the principles that emerge from that case, they claim that the plaintiff’s action is statute barred. I disagree. In my view, the principles that emerge from Lawless v. Anderson are not determinative of this motion. Neither am I persuaded that the defendants have met the high standard that is imposed upon them to show that there is no genuine issue relative to when that limitation period commenced to run. That requires a trial. The motion is dismissed.

Factual Background

[ 5 ] In October of 2002, Ms. Thompson was seen by Dr. Fry. Dr. Fry advised her of the importance of breast self-examination in order to detect suspicious breast lumps that could be tumors. This is ironic since none of the doctors appeared to pay proper attention to Ms. Thompson’s strongly articulated concerns about the increasing size of the lump she claimed to have found in her breast.

[ 6 ] She saw Dr. Fry again about a year later, in August 2003. Ms. Thompson told Dr. Fry that she had a history of breast cancer in her family. Dr. Fry again emphasized the importance of breast self-examination, but even in the face of that family genetic history, she evidently felt that there was no indication that breast mammography was required or appropriate. She examined Ms. Thompson's breasts and found them to be normal.

[ 7 ] However, Ms. Thompson later found a lump in her breast, and in January of 2004 she went to see Dr. Yogi Sehgal. He examined her on January 20 and confirmed a mass in her breast. It was 1 cm x .5 cm in size and located at the 10 o'clock position of her right breast. However, he did not order any other testing, either a mammogram or a CT scan or a biopsy. A month later, on February 4, 2004, Shauna Thompson was diagnosed with a benign right breast lump. Dr. Fry believed that was related to her menses.

[ 8 ] She was referred to Dr. Sherstan. She saw him later in February, 2004. He performed a fine needle aspiration biopsy on her right breast. However, he deferred her previously scheduled mammogram for the breast lump, indicating that "In view of today's findings, the mammogram, which had been ordered for assessment of the breast lump as to whether it is cystic will be deferred for the present." His operative note indicates that in his opinion, he was dealing with fibrocystic disease, and not with breast cancer.

[ 9 ] Unfortunately, the pathology report indicated that the fine needle biopsy that Dr. Sherstan performed was deficient. The specimen taken in that biopsy was inadequate to permit a diagnosis to be made. In light of the results of the fine needle biopsy, Dr. Sehgal evidently concluded that Ms. Thompson did not have any cancerous lesions, even though the biopsy was inadequate to actually permit that diagnosis. Dr. Sherstan wanted to see Ms. Thompson again two weeks after the needle biopsy, but he took no steps to arrange an examination with her and again there was absolutely no follow up.

[ 10 ] At the beginning of April, 2004, given her continuing protestations of the increasing size of the lump in her breast, Ms. Thompson had an ultrasound test. It was requested by Dr. Fry. That test disclosed a solid mass that had grown to 1.3 cm located at the 10 o'clock position in the right breast. The radiologist who conducted the ultrasound examination of her breast specifically noted the existence of a hard palpable mass at the 9 to 10 o'clock position near Ms. Thompson's right nipple. The radiologist suggested that a further biopsy be conducted on a clinical basis, but again, none of the three defendants followed up.

[ 11 ] Ms. Thompson believes and observed that the lump continued to increase in size in her breast. She saw Dr. Sehgal again on April 25, 2005, and at that time he confirmed her concern, made a note in her file that the lump had increased in size to 1.5 cm, and also confirmed her family history of breast cancer. Notwithstanding these indicators, Dr. Sehgal did not order any further diagnostics on Ms. Thompson.

[ 12 ] Finally, Ms. Thompson again approached Dr. Sehgal on May 31, 2006. She requested that the mass in her right breast be removed because of her family history of breast cancer, but again, nothing was done. Eight months later, by the beginning of the next year, when another ultrasound was performed on January 30, 2007, the mass in her breast was found to be 2.9 x 2.5 x 1.8 cm, more than double the size it had previously been. As well, another lobulated mass measuring 1.5 x 2.1 x 1.1 cm was noted in her right axilla. This was regarded as highly suspicious for malignancy.

[ 13 ] Ms. Thompson went to see Dr. Sherstan again on February 1, 2007, after seeing Dr. Sehgal on January 2, 2007. She had a new complaint of a new lump in the right axilla. Six days later, Dr. Sherstan extracted a mass from her right breast. Pathological tests performed on the mass confirmed it to be a Grade 1, 5 cm infiltrating ductal carcinoma of the right breast. Ms. Thompson immediately commenced chemotherapy and radiation therapy. Six months later, on August 16, 2007, Ms. Thompson underwent a double mastectomy and axillary node dissection in Thunder Bay, Ontario.

[ 14 ] Following that surgery, however, laboratory and pathology reports indicated a complete absence of cancerous lesions from Ms. Thompson's body. She was told that her cancer was in complete remission. She also admits, however, to having been told by her oncologist that she had Stage III cancer, not merely Stage I cancer that had been caught early, as Dr. Sehgal erroneously told her, so objectively there was a statistical likelihood that the cancer would return.

[ 15 ] Nevertheless, Ms. Thompson continued to be free of cancer until being diagnosed in October of 2009 after another surgery performed a month earlier in September disclosed that the cancer had returned and that it had metastasized. Ms. Thompson was told by Dr. Holloway early in 2010 that her cancer was terminal. She was 33 years old when she received this devastating news.

[ 16 ] Ms. Thompson commenced this action on December 24, 2009. In it she makes allegations of negligence against the defendant physicians, but they all principally relate to the same basic complaint. That claim is that the treatment she received from these physicians was negligent, and that they failed to properly investigate and diagnose the right breast lump for the cancer that it was, and is, in a timely fashion.

Legal Framework for Summary Judgment and Limitations

[ 17 ] Rule 20(4) requires that summary judgment be granted where there is “no genuine issue that requires a trial.” New appellate guidance to the appropriate interpretation of those amendments has been provided in Combined Air Mechanical Services v. Flesch [2] and the other group of cases decided at that time. They emphasize that the principal determining factor will be whether or a fair and just determination of the claim can be achieved through the summary judgment process, bearing in mind that the purpose of the rule is not to eliminate trials, just trials that are unnecessary. If it cannot, the matter must proceed to trial.

[ 18 ] In some cases it is more appropriate to use the summary judgment rule. These include cases where the parties agree that it is an appropriate method to determine the outcome of an action, or where a plaintiff’s claim is clearly without merit, or where the interests of justice do not require that the matter be adjudicated at trial. In other cases, disposition by way of summary judgment is not suitable.

[ 19 ] The first matter to be considered, however, is whether the motions judge can have the full appreciation of the evidence and the issues necessary before dispositive findings can be made. Only where that full appreciation can be achieved will it be appropriate or possible to determine a matter by summary judgment. Otherwise, the need to achieve that full appreciation of the evidence will mandate a trial. Only after this question has been affirmatively answered may a motions judge carry on to consider whether there is a genuine issue that requires a trial, taking account of the case law developed over the past years that remains applicable relative to summary judgment motions, and the evidentiary and persuasive burdens that law imposes on the parties.

[ 20 ] These are the standards that I must apply in considering the defendant's motion for summary judgment dismissing the plaintiff’s claim in this action based upon the alleged expiry of the limitation period prior to her commencement of this action against them.

[ 21 ] Turning to the issue of the limitation period, whether or not the plaintiff's cause of action in this case is statute barred falls to be determined under section 4 of the Limitations Act, 2002 , since her claim was clearly discovered after January 2004. That provision will preclude a proceeding from being commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[ 22 ] Discoverability is governed by section 5 of the Limitations Act, 2002 . Subsection 5(1) stipulates that a claim will be discoverable on the earlier of several days. Those days are the day on which the person with the claim first knew

(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person or persons against whom the claim is made, and
(iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

[ 23 ] The statute also stipulates that the day on which the claim is considered to have been discovered is the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to. Further, section 5(2) of the Act provides that a person with a claim is presumed to have known of the matters that are enumerated in subsection 5(1) on the day that the act or omission on which the claim is based took place, unless the contrary is proved.

Is the Plaintiff’s action against the Defendants statute barred?

[ 24 ] In support of their claim for summary judgment, the defendant physicians advance an argument squarely founded on the Court of Appeal's decision in Lawless v. Anderson , above. They say that case must govern and control the outcome here. There are enormous differences, however, between the factual background in Lawless v. Anderson , a failed cosmetic surgery case where the precise date the damage arose was well known and not in dispute, and this case where the failure of the defendant physicians to properly treat Ms. Thompson, and their delay in diagnosing her condition contributed to the severity or degree of advancement of her condition, and thus to the existence and extent of her damage or injury. It is important to understand the different facts and circumstances as they existed in Lawless .

[ 25 ] In that case, the plaintiff had undergone breast augmentation surgery in July 2003, surgery that went horribly wrong. The fact that the surgery had been botched was visually evident to the staff at the clinic where the surgery was performed and to the plaintiff who expressed concerns regarding the deformed appearance of her breasts very soon after Dr. Anderson performed the surgery on her.

[ 26 ] As a result, she met with an expert in plastic surgery on November 20, 2003, only four months after the surgery. He informed her that she had been "disfigured" and that her breasts were "deformed". He identified three specific deficiencies with how Dr. Anderson had performed the surgery and told her that she would need corrective surgery. He told her that she should contact a lawyer, and that she should complain to the College of Physicians and Surgeons of Ontario about Dr. Anderson’s treatment. Ms. Lawless filed a complaint with the College and arranged a meeting with a highly reputed personal injury solicitor.

[ 27 ] Unlike in this case, the problem in Lawless v. Anderson that gave rise to the application of the limitation period arose out of the solicitor’s belief that he needed to have an expert opinion before commencing a claim against Dr. Anderson. He wanted to have a complete copy of the plaintiff's medical charts and an expert opinion from a qualified plastic surgeon as to whether Dr. Anderson had breached the standard of care before he commenced a claim and started to incur the expense of such litigation.

[ 28 ] However, significant delays arose and it was necessary to obtain a court order requiring the clinic to produce the plaintiff’s medical charts. The expert would not provide his formal opinion until he had reviewed those charts, even though he told the solicitor informally that he considered the result to be below acceptable medical standards. That expert then declined to be involved and a second expert had to be retained. He provided his opinion on June 6, 2005. That was 23 months after the surgery. Ms. Lawless issued her statement of claim on June 24, 2005.

[ 29 ] At that time, the limitation period for the commencement of an action against the doctor was one year as established by section 89(1) of the Health Professions Procedural Code . One of the issues in that case related to whether it was the old, or the new limitation period under the Limitations Act, 2002 that governed. If the claim was discovered after December 31, 2003, the new two year limitation period would have applied, and the claim would have been issued in time. If the claim was discovered before that date, it was the old one year period that applied.

[ 30 ] The doctor brought a summary judgment motion to dismiss the plaintiff's claim on the basis that she had missed the limitation period of one year. Ms. Lawless took the position that the claim had not been discovered until she received the written opinion from the second expert on June 6, 2005, and was issued well within the applicable statutory time, but David Brown J. concluded that she had knowledge of all material facts necessary to discover her claim prior to January 1, 2004. Since the claim was issued over a year after that date, he granted summary judgment and dismissed the plaintiffs claim. The plaintiff appealed.

[ 31 ] At paragraphs 22 and 23 of the Court of Appeal’s reasons, Justice Rouleau explains discoverability:

The principle of discoverability provides that "a cause of action arises for the purposes of the 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 Waste Material Inc. (1998), 1998 , 38 O.R. (3d) 161 (C.A.) at p. 170.

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 , 39 O.R. (3d) 737 (C.A.), and McSween v. Louis (2000), 2000 , 132 O.A.C. 304 (C.A.).

[ 32 ] In the present case, the defendant physicians claim on the basis of Lawless that there is a significant difference between having sufficient facts to commence a claim, and having sufficient evidence to sustain it. They say Ms. Thompson had sufficient facts available to her to permit her to commence the claim in March of 2007 even if she did not have enough evidence gathered by that point to sustain it.

[ 33 ] It is true that Dr. Holloway only provided his expert opinion to the plaintiff’s counsel in March 2010 relative to the treatment received by Ms. Thompson from the defendant physicians. Equally, the authorities establish the need for a plaintiff to have received an experts report in order to succeed in a medical malpractice claim in most cases. [3] However, the reason Ms. Thompson only commenced her claim in December 2009 had nothing to do with not receiving an expert’s medical opinion about whether the conduct of these defendant physicians met the standard of care.

[ 34 ] In this case, the final diagnosis of malignant breast cancer was made in March of 2007. By that point, the defendant physicians say that Ms. Thompson knew that her family doctor had been ignoring her claims. They acknowledge that she focused at that time on getting better, but they also insist that the oncologist told her at that time that the family doctor should have been ‘on top of the issue’ much sooner, and that if it had been caught sooner, the prognosis would have been much better.

[ 35 ] As such, the defendant physicians claim that the commencement date for the two-year limitation period in this case is March 2007 since they insist that Ms. Thompson had sufficient facts to commence the claim by that point. She may not have had all of the necessary elements to prove that claim, including having not yet received the expert report of Dr. Holloway until March 27, 2010, but the defendant physicians say that is confusing the date of discoverability of the claim with the elements necessary to prove that claim.

[ 36 ] This point as well was emphasized by Justice Rouleau in Lawless v. Anderson at paragraph 36 , based on the earlier McSween v. Louis decision at paragraph 19 :

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 the 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 it is not needed to discover the claim. (my emphasis)

[ 37 ] I have no quibble with these propositions advanced by the defendant, but they are not directly relevant here and are inadequate to discharge the onus of proof that rests upon them on this summary judgment motion. The reason is because the claim of the plaintiff was not delayed pending receipt of Dr. Holloway's expert opinion, as was the case in Lawless v. Anderson .

[ 38 ] There was a much more important and simple reason why Ms. Thompson did not commence her claim until December of 2009. That reason was because after her cancer went into complete remission in October of 2007, Ms. Thompson had no damage, and thus had no cause of action that she could bring against the defendant physicians. She had no cause of action until the cancer returned in October of 2009.

[ 39 ] Ms. Thompson's position on this summary judgment motion in response to the defendants’ claim is that it was not until she could show causation that the negligence of the defendant physicians had resulted in a materially different prognosis than would otherwise have been the case that her cause of action arose. On this basis, her counsel argues that the limitation period did not commence to run until October of 2009 at the earliest or January 2010 when Dr. Holloway’s opinion was received, at the latest. Since she issued her claim in December of 2009, she claims it is not statute barred.

[ 40 ] Plaintiff’s counsel agrees that this is a delay in diagnosis case, and that Ms. Thompson had cancer, which was not diagnosed. But he says that if it had been diagnosed, she could have been treated, and she would have been treated. This is not a case like Lawless v. Anderson where the damage is attributable to a botched surgical procedure that took place on one particular identified date. Rather, it is a case where the plaintiff had the bad fortune to have a family history of breast cancer, and where a group of physicians allegedly negligently failed to respond to indicators and investigate and treat her at an earlier time, which resulted in her malignant breast cancer not being diagnosed until March of 2007.

[ 41 ] Further, defendants counsel says the plaintiff must know that there has been delay and that because of that, her condition is worse. But that does not establish causation without the condition itself causing damage. Is it adequate to merely have delay and the prospect of a condition being worse without evidence that the condition is present and that it is indeed worse due to the defendant’s conduct? I think not. It is when those elements are known that the cause of action arises, and in this case, that is 2009.

[ 42 ] That follows because discoverability relative to the application of the limitation period ties in inextricably with the presence of the material facts necessary to found a cause of action. The material facts of which the plaintiff must be aware before the limitation period can commence to run are those which would constitute negligence. Negligence itself is composed not only of the breach of an applicable standard of care, but also the causation to give rise to a cause of action.

[ 43 ] Thus, in Salter v. Hirst , [4] in the absence of evidence that the physician’s below standard conduct had caused or contributed to the paraplegia suffered by Mr. Salter, the Court of Appeal held that the trial judge had been correct to reverse the finding of negligence and damages reached by the jury in that case. Eberhard J. did so because the plaintiffs provided no evidence upon which a jury could have found, on a balance of probabilities, that the doctor’s delay in transferring Mr. Salter to another facility was the cause of his paralysis. In that case, the reports provided by two experts afforded no evidence that ‘but for’ the doctor’s negligence, the unfavorable outcome that resulted from delay would have been avoided with prompt diagnosis and treatment. [5] In that case, one of the expert’s reports only said that the plaintiff’s paraplegia was the result of “prolonged delay before receiving treatment,” but since there was no evidence that that delay caused or contributed to Mr. Salter's condition, then there could be and was no cause of action against the doctor, notwithstanding the demonstrable presence of negligence.

[ 44 ] In the present case, causation is key to the determination of material facts, because section 5 of the Limitations Act, 2002 makes clear that causation is a critical and necessary element to the existence of a claim, and thus, to the discoverability of that claim.

[ 45 ] Lawless accepts that all of these cases are fact specific. In this case, however, after being diagnosed in March of 2007 Ms. Thompson was treated with radiation, chemotherapy, and ultimately bilateral mastectomies. During the period from March 2007 until October 2007, while she was undergoing treatment, it is not surprising that her focus was not on the commencement of lawsuits, but on her own survival. And importantly, at the end of that period of treatment, she was given a clean bill of health. As such, she had no damage, and consequently, had no cause of action. The hospital records show this clearly.

[ 46 ] In a Diagnostic Imaging Report from the Department of Nuclear Medicine of Thunder Bay Regional Health Sciences Center, dated March 20, 2007 relating to a bone scan done at the time of her diagnosis, the report shows that there were no clear-cut reasons to suspect that any metastatic process was ongoing relative to Ms. Thompson's cancer, and that no lesions were found elsewhere in her body in the course of that scan. Nevertheless, the progress note of Dr. Dueck prepared on March 28, 2007 shows real concern that Ms. Thompson might have bilateral breast cancer. Dr. Dueck indicated that it remained imperative that Ms. Thompson begin her systemic therapy (i.e. chemotherapy and radiation), as she was at high risk for metastatic disease.

[ 47 ] More importantly, but in marked contrast is the consultation record of Dr. Vergidis, dated October 9, 2007. It was prepared after the completion of all of her treatments and her surgery. Dr. Vergidis noted not only that Ms. Thompson’s cancer was in remission, but also that she was moving forward with her life and had plans to become pregnant and have more children in the near future if possible. Further, the November 19, 2007 Progress Note prepared by Dr. Anthes following her examination and consultation with Ms. Thompson a month later, also in contrast to the March 2007 reports, shows no disconcerting systemic symptomology, and more importantly, no clinical evidence of recurrent breast cancer. Thereafter, Ms. Thompson moved to British Columbia and became involved with Mr. Ravi. It was only in October of 2009, two full years later, that her breast cancer recurred.

[ 48 ] The mere fact that one of the oncologists stated in 2007 that the delay in diagnosis could cause the cancer to return sooner does not establish causation to my satisfaction for the purposes of discoverability. That is nothing but speculation. After her six month treatment period came to an end in September of 2007, and once the investigative reports show that the cancer was then in remission, until the recurrence was detected and diagnosed in October of 2009, Ms. Thompson appears to have experienced a clean period of good health.

[ 49 ] The defendant physicians rely on the decision of the Supreme Court of Canada in Peixeiro v. Haberman [6] for the proposition that the extent of the harm experienced by a plaintiff does not need to be known in order to establish the presence of material facts adequate to commence the running of the limitation period. They say that the decision to sue the defendant physicians seems to have been made here only after the plaintiff was told in 2009 that the cancer had recurred, but they claim that at no point from 2007 on did the limitations clock stop running.

[ 50 ] There are two responses to this submission. First, it may be that the full extent of the harm allegedly caused by the defendant physicians does not need to be known to permit a claim to be commenced, but certainly the existence of damage, or actionable injury, needs to be known in order to establish causation. Peixeiro v. Haberman establishes that discoverability only occurs when the "material facts" are known. It seems intuitive to me that the existence of the material facts necessary to commence the running of the limitation period in a case of alleged delay diagnosis must include evidence of injury and the extent of the damage that is alleged to have been caused by the alleged negligent delay of the defendant physicians. Absent that connector, between particular damage and particular allegedly negligent conduct of delay, it is hard to see how a defined claim could be discoverable. Paragraph 39 of the Supreme Court’s reasons seems to support that perspective on grounds of fundamental fairness:

39. I agree with the Court of Appeal that to hold that the discoverability principle does not apply to s. 206 HTA would unfairly preclude actions by plaintiffs unaware of the existence of their cause of action. In balancing the defendant's legitimate interest in respecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action before he could reasonably have discovered that he had a cause of action is a compelling consideration. The diligence rationale would not be undermined by the application of the discoverability principle as it still requires reasonable diligence by the plaintiff.

[ 51 ] However, here, Ms. Thompson's cancer returned two years after it went into remission, and at that point, it was diagnosed as being terminal. That diagnosis clearly establishes the presence of actionable injury or damage. It is simplistic to my mind, however, to suggest that all of the elements necessary to commence a cause of action are known by Ms. Thompson in March of 2007, when the extent of the damage or injury was not known at that time, having regard to the fact that the treatment that she received caused her breast cancer to go into complete remission. This seems to me to be a fatal flaw in the defendant's position. In order to succeed on their summary judgment motion, they effectively need to show that her cancer was not in remission, contrary to the medical reports tendered as evidence on this motion. This they have not and obviously could not do in the face of the dispositive medical reports prepared in the fall of 2007 after Ms. Thompson had her treatment and surgery.

[ 52 ] Further, Justice Swinton’s decision in Nichols v. Young , [7] directly addresses the point and evidently accepts the proposition that the entire focus of a plaintiffs response after she was first diagnosed could and likely would be on obtaining treatment and getting better, not on commencing a lawsuit. In that case, the plaintiff sued her doctor for negligence in the prescription of birth control pills. She developed an illness known as DVT, which required hospitalization for 10 days. She commenced her action on August 5, 1999. At that time when the limitation period was one year, the defendants argued that she knew or ought to have known all of the necessary facts to commence her claim by March or April of 1998, and thus that the action was statute barred. However, Justice Swinton accepted the plaintiff's evidence that she did not understand that her injury might have been caused by the negligence of her doctor until the early fall of 1998, having regard to the fact that she was too sick to commence her action before then. [8]

[ 53 ] In this case, when Shauna Thompson learned of her diagnosis in March of 2007, as in Nichols v. Young , it was not a time when she could or should reasonably be expected to start thinking principally about a lawsuit rather than focusing on her own treatment and survival. She was not ill in the sense that she was hospitalized like Ms. Nichols, but as her discovery evidence makes clear, she was certainly ill with a major life threatening disease, malignant breast cancer, and that illness caused her to focus exclusively on receiving treatment and surviving. [9] That effort and focus paid off. She was given a clean bill of health in October of 2007, with her cancer being in remission, notwithstanding the oncologist’s speculative prediction that the delay caused by the defendant physicians in diagnosing her cancer could likely cause it to recur sooner. If she had sued in 2007 while in remission, she would have had no damages and thus no cause of action arising out of the delay. She could only know what damage would arise attributable to delay when and if that cancer recurred. That was in October of 2009.

[ 54 ] The final line of argument advanced by the defendant physicians is that there is no evidence actually advanced by Ms. Thompson herself from her unique perspective as to what triggers her claim. The defendants say that the onus shifts to her, once they have established a prima facie case of breach of the limitation period, to show that her claim was brought on a timely basis. However, they say that she has provided no explanation of her delay until October of 2009 in commencing the action, and they note that on her examination for discovery, on the advice of counsel, she refused to answer the question of when she first consulted legal counsel. They claim that this is an important factual matter, because the plaintiff has the onus to show that the action was commenced on a timely basis, and they claim that her failure to answer this question should result in a negative inference being raised against her.

[ 55 ] There are two answers to this line of argument. The first, that will be evident from the foregoing is that I am not satisfied even before reaching this question that the defendant physicians have satisfied the heavy onus that rests upon them on this summary judgment motion to establish that the limitation period necessarily commenced in March of 2007, when Ms. Thompson's state of remission by October 2007 shows that there was no actionable damage present. Thus, she has no obligation to rebut a successful prima facie position because they have not advanced one. Second, there is clear evidence here of Ms. Thompson's mental state, of her focus on obtaining treatment and surviving, and on the consequential success of that focus.

[ 56 ] Moreover, in my view Ms. Thompson must be given some allowance or latitude for her physical and mental state relative to negative inferences being raised against her based upon her discovery evidence given in June and October of 2010. By the time she was examined for discovery in 2010 she had lost her ability to read as her eyesight deteriorated. She was on morphine and other potent narcotic medications to deal with the pain she was experiencing. She slept most of the time. The discoveries had to be interrupted, curtailed and rescheduled because of her physical inability to answer questions for protracted periods of time. Further, she was experiencing the known side effects of some of the medications she was taking at that time for pain during those discovery proceedings, included the possibility of confusion resulting from Paraneoplastic disorder that is commonly present with certain cancers, including breast cancer, and nausea, were symptoms she was experiencing. In my view it would be unfair to draw negative inferences against the alleged deficiencies or inadequacies of the plaintiff’s discovery evidence in the circumstances of this case.

[ 57 ] In a case such as this, where the focus is on delay of diagnosis, I find that the extent of the damage attributable to the delay can only be quantified once the damage or injury is known. I find that that those elements could only be known in October of 2009 or after, once Ms. Thompson's malignant breast cancer returned and the period of remission came to an end. Only then could there be a realistic assessment of material facts informing the extent to which the investigation and treatment delays that may have been caused by these defendant physicians shortened Ms. Thompson’s reasonable life expectation. The motion is dismissed.

Michael G. Quigley J.

Released: June 4, 2012