Court File and Parties

COURT FILE NO.: CV-13-479472 DATE: 2017-03-14 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHELLE GOODWIN, MICHAEL GOODWIN, VANESSA GOODWIN and REBECCA GOODWIN by their Litigation Guardian MICHAEL GOODWIN Plaintiffs

Jerome Morse, for the Plaintiffs

- and -

MENDEL ROBERT NADEL Defendant

Nada Nicola-Howorth, for the Defendant

HEARD: December 6, 2016

The Honourable Justice C.D. Braid

REASONS ON SUMMARY JUDGMENT MOTION

I. OVERVIEW

[1] Michelle Goodwin went into labour on January 30, 2002. During the delivery, Dr. Mendel Robert Nadel performed an episiotomy, which extended to a fourth degree laceration. Dr. Nadel stitched up the laceration.

[2] In the years that followed, Ms. Goodwin suffered from what she thought was worsening symptoms of Irritable Bowel Syndrome. She saw various doctors, tried different treatments, and underwent several tests. In 2011, Ms. Goodwin learned, for the first time, that she had significantly reduced anal sphincter function which was possibly caused by the laceration during childbirth. More than eleven years after the delivery, she sued Dr. Nadel.

[3] Dr. Nadel has brought a motion for summary judgment on the basis that the action was brought outside the limitation period. The plaintiffs rely on the principle of discoverability to resist the motion.

[4] The issues on this motion for summary judgment are:

A. The Limitations Act and discoverability B. When did the plaintiffs discover the cause of action? C. Is this an appropriate case for summary judgment?

[5] For the reasons set out below, I find that the motion for summary judgment should be dismissed.

II. FACTS

a) Initial Diagnosis of Irritable Bowel Syndrome

[6] In 2000, Ms. Goodwin was diagnosed with Irritable Bowel Syndrome (IBS). In 2001, Ms. Goodwin took a leave of absence from her employment because of IBS symptoms. She experienced urges to go to the bathroom but did not experience fecal incontinence.

b) The Delivery

[7] Dr. Nadel is an obstetrician and gynaecologist who provided health care to Ms. Goodwin during her first pregnancy. On January 30, 2002, Ms. Goodwin attended at the hospital and was induced. Dr. Nadel performed a mid-vacuum extraction and a midline episiotomy during the delivery that extended to a fourth degree laceration to the rectum. Dr. Nadel stitched up the laceration. Ms. Goodwin recalls the doctor cutting her during the delivery, and then stitching her up after the child was born.

[8] A nurse spoke to Ms. Goodwin in the recovery room. The nurse told Ms. Goodwin that she had experienced an episiotomy, and a fourth degree tear that extended to the rectum. She recalled the nurse being surprised by this information.

[9] At the hospital and during follow-up consultations, neither the nurse nor Dr. Nadel suggested that the laceration was not properly repaired.

c) Bowel Habits After the Delivery

[10] Ms. Goodwin did not have significant changes in her bowel habits or any rectal bleeding within six weeks of the delivery. She was not aware of any problems related to the fourth degree laceration after discharge.

[11] Over time, Ms. Goodwin’s bowel habits became worse. Her bowel movements were looser, more frequent and more urgent. She had trouble controlling the passing of gas. Her doctor continued to treat her for IBS.

d) Pregnancy and Birth of her Second Child

[12] In 2003, Ms. Goodwin was referred to Dr. Shannon, an obstetrician and gynaecologist, for her second pregnancy. During that visit, she told Dr. Shannon that she had experienced a level four episiotomy during her first delivery. She understood from Dr. Shannon that Dr. Nadel had “purposely” cut her to the rectum; and that physicians “usually don’t do that in this day and age”. This discussion caused Ms. Goodwin to have concerns about Dr. Nadel’s care.

[13] On February 23, 2004, Ms. Goodwin delivered her second child. She experienced a second degree perineal tear, which was repaired by the attending obstetrician.

e) Bowel Habits After Birth of her Second Child

[14] After the birth of her second child, Ms. Goodwin continued to be treated by her doctor for IBS. In 2006, Ms. Goodwin experienced diarrhea and believed that her IBS was acting up. She attempted to control the symptoms with diet and was prescribed medication for IBS, none of which alleviated the symptoms.

[15] By 2009, Ms. Goodwin’s symptoms continued to worsen, and she had her first episode of fecal incontinence. Ms. Goodwin experienced diarrhea, fecal incontinence, frequent gas and pain her abdomen. She was referred to Dr. Augustin Nguyen, a gastroenterologist.

f) Discussions with Dr. Nguyen

[16] In December of 2009, Ms. Goodwin saw Dr. Nguyen for the first time. Dr. Nguyen concluded that Ms. Goodwin’s symptoms were consistent with IBS. He prescribed a high fibre diet including supplements.

[17] Ms. Goodwin attended three appointments with Dr. Nguyen in 2009 and 2010. He prescribed various medications, none of which were effective in controlling her symptoms, which continued to worsen. He referred her for a colonoscopy, which ruled out inflammatory bowel disease. He referred her for a CT enterography, which ruled out small bowel inflammation.

[18] At the fourth visit with Dr. Nguyen on January 13, 2011, he asked Ms. Goodwin about her obstetrical history. She told Dr. Nguyen that she had had a level four episiotomy. Dr. Nguyen told her there was a possible connection between her symptoms and perineal trauma from childbirth. Dr. Nguyen’s clinical note states that Ms. Goodwin “has IBS, with more severe symptoms…I believe a part of her symptoms may be due to poor pelvic floor function due to her tears from childbirth. As such, I will send her for anorectal manometry…” Dr. Nguyen made an appointment for an anorectal manometry test to be conducted at McMaster.

[19] The January 13, 2011 appointment was the first time that Ms. Goodwin was told that the laceration during childbirth could be the cause of her fecal incontinence. Her husband, Michael Goodwin, described the plaintiffs’ understanding at that point in time: until the McMaster test results came back, “[it] was just grabbing at straws.” Until this possible connection was investigated further, Dr. Nguyen’s working diagnosis and treatment for Ms. Goodwin continued to be IBS.

[20] On May 4, 2011, Dr. Stephen Collins prepared the test results regarding the anorectal manometry test, which I shall refer to as the McMaster test results. The stated purpose of the test was to investigate the basis for the patient’s nine year history of worsening incontinence. The results stated that “extremely poor sphincter function” was the “likely basis” for Ms. Goodwin’s incontinence.

[21] At an appointment in July of 2011, Dr. Nguyen explained the McMaster test results to Ms. Goodwin. Dr. Nguyen stated that the bowel incontinence was from the episiotomy, and that surgery and medication would not help alleviate symptoms. Although the parties did not provide evidence of the exact date of this appointment, I find that it took place in early July of 2011.

[22] Ms. Goodwin states that this appointment was the first time the cause of her fecal incontinence had been positively identified: her incontinence was the result of anal sphincter dysfunction. It did not occur to her, prior to getting the McMaster test results, that she should commence an action due to an episiotomy during her delivery causing sphincter dysfunction. Prior to getting those test results, it was unknown to her that she had such a problem.

[23] Ms. Goodwin was referred for a transrectal ultrasound, which took place on November 12, 2011. This test showed that her internal and external anal sphincter were both torn.

g) The Pleadings

[24] This action was commenced on May 1, 2013.

[25] The Statement of Claim alleges that Ms. Goodwin “suffered injury to the vagina and the anal sphincter” during the delivery of her first child, which caused her to suffer from “years of worsening incontinence.”

[26] In the Statement of Defence, Dr. Nadel pleaded that the plaintiffs’ action is statute-barred because it was not brought within the limitation period. Dr. Nadel pleads and relies on the Limitations Act; or, in the alternative, the Regulated Health Professions Act.

[27] In the Reply, the plaintiffs pleaded the doctrine of discoverability.

[28] This matter is scheduled for the September 2017 trial sittings.

III. ANALYSIS

A. The Limitations Act and Discoverability

[29] For reasons set out below, I reject the argument that the limitations period began on January 30, 2002. Therefore, the limitation period under the Regulated Health Professions Code, S.O. 1991, C.18 does not apply.

[30] The claim is subject to the two-year limitation period in section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which states that a proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered.

[31] The proceedings were not commenced before the second anniversary of the event that resulted in the physical injury. However, the plaintiffs rely on the principle of "discoverability". The plaintiffs maintain that it was only upon receiving the McMaster test results, and meeting with Dr. Nguyen, that they discovered the cause of action.

[32] Section 5(1) of the Limitations Act sets out the circumstances in which a claim will be taken to have been “discovered”. It is subject to a presumption in s.5(2):

5(1) A claim is discovered on the earlier of,

(a) 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 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; and

(b) 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 in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[33] Section 5 sets out a subjective and an objective test. Each of the items in either the subjective test or the objective test must be satisfied for the limitation period to begin to run. It is a conjunctive test: Longo v. MacLaren Art Centre, 2014 ONCA 526.

[34] In a case involving a limitation period issue, the facts are particularly important. The limitation period begins when the plaintiff discovers or ought to have discovered, through reasonable diligence, the material facts on which the cause of action is based. This is a fact-based analysis, which asks whether the plaintiff knows enough facts on which to base the claim: Lawless v. Anderson, 2011 ONCA 102 at para. 23.

[35] Discovery of the claim does not depend on an awareness of the totality of the evidence, the precise cause of an injury, nor the extent to which a loss may have been suffered. The plaintiff need only possess those facts necessary to assert allegations against the defendant: McSween v. Louis, [2000] 132 O.R. (3d) 304, 187 D.L.R. (4th) 446 (C.A.) at para. 51.

B. When Was the Plaintiffs’ Claim Discovered or Reasonably Discoverable?

a) Did the Limitation Period Begin at Time of the Delivery?

[36] The defendant submits that the limitation period began to run at the time Ms. Goodwin delivered her first child. The defendant argues that Ms. Goodwin knew she had sustained an unexpected injury during the delivery, and she had sufficient information to base allegations against negligence against Dr. Nadel at that time.

[37] I do not accept this submission. At the time she delivered her first child, Ms. Goodwin knew that she had experienced a fourth degree laceration. She believed it was properly repaired. She had no reason to believe that the laceration was causing ongoing health problems. Her doctors advised her that her fecal urgency and incontinence were due to IBS. She did not have sufficient information to connect the injuries suffered during childbirth with her fecal incontinence.

[38] Many women experience episiotomies and tears during childbirth. At the time of delivery, a reasonable person would not have had reason to believe that the actions of Dr. Nadel could be linked to fecal incontinence.

b) Did the Limitation Period Begin in 2011?

[39] In the alternative, the defendant submits that, at the latest, the limitation period began to run on January 13, 2011. On that date, Ms. Goodwin was advised by Dr. Nguyen that her obstetrical history could be linked to her ongoing bowel issues.

[40] The plaintiffs maintain that it was only upon receiving the McMaster test results in July of 2011, and discussing them with Dr. Nguyen, that they discovered the cause of action. On this motion, the burden is on the plaintiffs to show that they did not, and could not have discovered a claim against Dr. Nadel at an earlier date.

[41] At the meeting on January 13, 2011, Dr. Nguyen raised the prospect that the bowel issues could be linked to Ms. Goodwin’s obstetrical history. Dr. Nguyen ordered the McMaster test, but continued with the working diagnosis of IBS. The link to her obstetrical care was an unproven possibility that required follow-up testing, in a similar way that previous tests had ruled out inflammatory bowel disease and small bowel inflammation.

[42] In early July of 2011, Ms. Goodwin met with Dr. Nguyen to discuss the McMaster test results. At that meeting, Ms. Goodwin learned new information that was not previously available to her: the test results showed extremely poor anal sphincter function. Those results, together with Dr. Nguyen’s opinion that the sphincter dysfunction was caused by tears during childbirth, provided new information to the plaintiffs that meaningfully called into question the actions of Dr. Nadel.

[43] The McMaster test results established that Ms. Goodwin’s fecal incontinence was the result of sphincter dysfunction, and therefore inferentially linked to the laceration at the delivery. This new evidence of an injury (sphincter dysfunction), together with the opinion of the specialist regarding the cause of that injury, provided sufficient information to the plaintiffs to discover the cause of action. Put another way, if medical tests had found no evidence of poor sphincter function, the diagnosis of IBS would have remained unchanged and there would have been no cause of action.

[44] For a medical opinion to extend the running of the limitation period, the opinion must contain new information about the medical care not previously available to the prospective plaintiff: Morton v. Cowan, [2001] O.T.C. 844, 2001 CarswellOnt 4226 at para. 41(SCJ), aff'd (2003) 66 O.R. (3d) 231 (C.A.). In the case before the court, the McMaster test results contained new information that was not previously available.

[45] Prior to July 2011, the plaintiffs did not know (and could not reasonably have known) that what Ms. Goodwin thought was a repaired laceration at the time of the delivery, was linked to symptoms that were previously diagnosed and treated as IBS. The test results represented the material fact demonstrating that the defendant caused an injury, loss, or damage; that a proceeding would be an appropriate means to remedy the wrong of the laceration that was thought to have been repaired but that caused injury to the sphincter; and that the sphincter dysfunction was the cause of her fecal incontinence.

[46] In all of the circumstances, I find that the limitation period began to run in early July of 2011. The plaintiffs have established, on a balance of probabilities, that they did not and could not have discovered a claim against Dr. Nadel at an earlier date.

C. Is This an Appropriate Case for Summary Judgment?

[47] The court shall only grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. Pursuant to rules 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[48] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada clarified the test to apply on a summary judgment motion. There will be no genuine issue requiring a trial if the evidence permits the court to make a fair and just determination on the merits. This will be the case when a motion for summary judgment (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[49] What is fair and just depends on the nature of the issues, and the nature and strength of the evidence. There is an obligation on each party to “put its best foot forward.” The responding party must present its best case or risk losing: Canada Mortgage and Housing Corp. v. Greenspoon, 2015 ONSC 6882 at para. 28.

[50] I find that the limitation period began to run in early July of 2011. The action was commenced on May 1, 2013, which was within the two year limitation period. Therefore, the action is not statute-barred and the motion for summary judgment is dismissed.

[51] Rule 20.05(1) of the Rules of Civil Procedure states that, where summary judgment is refused, the court may make an order specifying what material facts are not in dispute. I make the following orders:

i. I find that the limitation period began to run in early July of 2011. This material fact is no longer in dispute. ii. Any part of the Statement of Defence that makes reference to the limitation period shall be struck out because the limitation period is no longer an issue.

IV. COSTS

[52] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs. The plaintiffs shall provide costs submissions by March 31, 2017; and the defendant shall provide any response by April 14, 2017. In the event that submissions are not received from either party by April 14, 2017, costs shall be deemed settled.

Braid, J. Released: March 14, 2017