Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Minke, Linda Minke, Cameron Minke and Brittany Minke
Plaintiffs
– and –
Stephen Hartman, Foot Works and Foot Works Inc.
Defendants
COUNSEL:
Brian R. Goldfinger and Azka Ashan, for the Plaintiffs
Anna L. Marrison and John McIntyre, for the Defendants
HEARD: April 12, 2017
THE HONOURABLE MR. JUSTICE G.E. TAYLOR
REASONS FOR JUDGMENT
Introduction
1This is a motion for summary judgment by the defendants seeking to dismiss the action due to the expiration of the limitation period.
2Stephen Hartman is a chiropodist registered to practice in the Province of Ontario. From March, 2006 until November, 2010, Hartman provided footcare treatment to Steven Minke through his chiropody clinic in relation to Minke’s diabetic condition. While being treated by Hartman, Minke developed Charcot foot.
3On May 15, 2012, Minke underwent a below the knee amputation of his right leg as a result of the Charcot foot.
4By way of a report dated January 5, 2015, Dr. Perry Mayer a physician who specializes in the treatment of feet of diabetics and in particular the treatment of Charcot foot opined:
Had the appropriate treatment been undertaken at the initial presentation of foot deformity, Mr. Minke would not have lost his limb.
and,
The poor management of the Charcot neuroarthropathy ultimately led to the right below-the-knee amputation.
5The Statement of Claim in this action was issued on July 9, 2015.
6It is the position of the plaintiffs that it was not until the report of Dr. Mayer that the cause of action against the defendants was discovered. It is the position of the defendants that the plaintiffs knew or ought to have known the necessary facts to issue the Statement of Claim against the defendants at the latest by May 15, 2012, and hence the action is statute barred because it was commenced more than 2 years after the negligence claimed was known of should have been known.
The Parties
7The plaintiffs other than Steven Minke assert derivative claims pursuant to the Family Law Act for expenses incurred on behalf of Steven Minke and for the loss of care guidance and companionship as a result of the amputation of Steven Minke’s lower right leg. The defendants Foot Works and Foot Works Inc. are a proprietorship and corporation owned and operated by Stephen Hartman. The defendants plead that Hartman Chiropody Professional Corporation is the successor corporation to Foot Works Inc.
8In these Reasons I will refer to the plaintiffs as “Minke” and the defendants as “Hartman”.
The Evidence on the Motion
9In 2006 Minke was diagnosed with diabetes. He retained Hartman to provide footcare because of his diabetes. Minke was treated by Hartman for diabetic foot care from March, 2006 until November 16, 2010. At that time Hartman advised Minke there was no further care he could provide and therefore discharged Minke as his patient.
10Hartman represented that he was a foot specialist for diabetic and arthritic conditions. Minke received regular footcare treatment on approximately a monthly basis. Treatment consisted of filing his nails and grinding callouses.
11On October 10, 2008, Minke fell and was injured at a Real Canadian Superstore. Minke commenced a legal action arising out of this fall. He sought damages for injuries to his lower back and left leg. As a result of the injury to his left leg, Minke began compensating by placing more weight on his right leg.
12Starting in approximately November, 2009, Minke began experiencing pain and swelling in his right foot. Minke brought his concerns about his right foot to the attention of Hartman. By March, 2010, Minke had developed a bump on the sole of his right foot which he brought to Hartman’s attention. According to Minke, Hartman advised him in June or July, 2010 that he had developed Charcot Foot. Hartman prescribed various devices to Minke including a walking cast, a heel wedge and an air cast.
13According to Hartman, Minke did not raise any concern in November, 2009, about pain and swelling in his right foot. Hartman also maintains that Minke did not complain about a bump on the bottom of his right foot in March or April, 2010. In May, 2010, Hartman observed a right dorsal foot laceration. In June, 2010, Hartman treated Minke for a moderate laceration and infection under his right great toe. Treatment for the ulcer under Minke’s great toe continued through until November, 2010. At an appointment in October, 2010, Hartman observed an additional ulcer in the medial longitudinal arch of Minke’s right foot.
14At an appointment on November 9, 2010, Hartman and his associate observed a significant deterioration in the ulcer in the longitudinal arch of Minke’s right foot. At that point he began to suspect that Minke might have developed Charcot Foot. Hartman advised Minke that he should immediately consult his family physician. Hartman also directed a letter to Minke’s family physician stating: “Recently he [Minke] began what is suspected to be active Charcot Neuroarthropathy changes and developed a plantar ulceration” and “Please assist us in managing the associated infection and obtaining imaging scans to rule out osteomyelitis and confirm active Charcot Neuroarthropathy”. Minke was Hartman’s first patient with suspected Charcot Foot.
15According to Hartman, chiropodists are trained to recognize symptoms associated with Charcot Foot but they do not diagnose the condition. When symptoms of Charcot Foot are observed Hartman’s standard practice is to refer the patient to his family physician in order to obtain x-rays or MRI scans and to obtain a proper diagnosis of Charcot Foot.
16Minke consulted and was treated by various physicians from November, 2010 to May, 2012. On May 15, 2012, Minke underwent a below the knee amputation of his right leg.
17Minke was represented by counsel in relation to his slip and fall lawsuit from at least January, 2009. In September, 2012, Hartman provided Minke’s counsel with copies of his clinical notes and records.
18In April, 2014, on a referral from his cardiologist, Minke began receiving treatment from Dr. Perry Mayer, a physician with significant experience in treating diabetic feet. He is the director of The Mayer Institute which focuses on the treatment of diabetic foot. He has treated approximately 350 patients with Charcot Foot. In an affidavit filed on the present motion Dr. Mayer stated:
At that first consultation on April 7, 2014 both Mr. Minke and I didn’t know that Mr. Minke had a cause of action against Mr. Hartman. It was not until I reviewed the clinical notes and records of Mr. Hartman that I discovered that his treatment fell below the standard of care.
19In May, 2014, Dr. Mayer received a request from Minke’s then counsel for an opinion about the causal link between Minke’s slip and fall, his Charcot Foot and his leg amputation. The letter did not request any opinion about the potential claim for negligence against Hartman. Dr. Mayer responded to this request by way of a report dated January 5, 2015. In that report he made the observations which are set out in paragraph four above and which are repeated here for ease of reference:
Had the appropriate treatment been undertaken at the initial presentation of foot deformity, Mr. Minke would not have lost his limb.
and,
The poor management of the Charcot neuroarthropathy ultimately led to the right below-the-knee amputation.
Minke received a copy of Dr. Mayer’s report sometime shortly after January 27, 2015.
20The Statement of Claim in this action was issued on July 9, 2015.
Legal Principles
21In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada directed that a new approach to summary judgment motions was required. At paragraph 49 the Court stated;
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (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.
22Section 4 of the Limitations Act, 2002 provides that the basic limitation period is two years from the date on which the cause of action was discovered.
23Section 5 of the Limitations Act is as follows:
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).
5(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.
24Hartman’s last treatment of Minke was on November 16, 2010. Therefore, it is incumbent upon Minke to prove that he was not aware of the matters referred to in section 5(2) of the Limitations Act as of November 16, 2010.
25In Soper v. Southcoat, 1998 CanLII 5359 (ON CA), [1998] O.J. No. 2799, the Ontario Court of Appeal stated at paragraph 21:
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.
26In the Gaudet v. Levy, 1984 CanLII 2047 (ON SC), [1984] O.J. No. 3312, White J. stated at paragraph 18:
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. Section 17 of the statute imports that all of the material facts were available, or ought to have been available to the plaintiff, including the meaning of the facts in terms of duty of care appropriate to the medical practitioner. Without medical advice interpreting it, the raw medical data cannot be presumed to mean anything to a layman. Now, if after a reasonably prudent person would have formed the judgment that he has been a victim of negligence or malpractice, he fails to commence his action within the appropriate statutory period, it would appear to me that his cause of action is barred. Essentially, whether or not the plaintiff knew, subjectively, or whether or not the plaintiff ought to have known or was negligent in not knowing, is a question of fact which can only, in my opinion, be determined by a tribunal of fact capable of hearing the witnesses as to the facts, assessing credibility, looking at all of the circumstances including the complete history of the matter and hearing expert opinion evidence, and ruling, as a question of fact, whether applying the subjective test, the plaintiff knew, or whether applying the objective test he ought to have known of "the fact or facts", contemplated in s. 17 of the Act.
This passage has been quoted with approval by the Court of Appeal in cases including Lawless v. Anderson, 2011 ONCA 102, Findlay v. Holmes, 1998 CanLII 5488 (ON CA), [1998] O.J. No. 2796 and Soper v. Southcoat.
27In McSween v. Lewis, 2000 CanLII 5744 (ON CA), [2000] O.J. No. 2076, in the majority judgment at paragraphs 47 and 48, the Ontario Court of Appeal stated:
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.
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.
Analysis
28The issue to be decided on this motion is whether there is a genuine issue requiring a trial with respect to the date on which Minke knew or ought to have known the facts necessary to discover that he had a claim in negligence against Hartman. Pursuant to s.5(2) of the Limitations Act, the onus is on Minke to establish that he did not discover that he had a claim against Hartman or that he did not reasonably know about such claim until after July 9, 2013. If that issue does not require a trial for determination then the action must be dismissed.
29Based on my review of the facts and the applicable law, it seems to me that the issue for determination in the present case is whether this is one of those claims which required the production of a medical legal opinion before it could be determined that there was a potential cause of action.
30Hartman submits that Minke knew at least by the date of the amputation of his right lower leg on May 15, 2012, that the cause of the amputation was his Charcot Foot. This he says fixes Minke with actual knowledge of the facts necessary to commence an action for negligence arising out of the treatment provided by him between March, 2006 and November, 2010. Further, and in the alternative, Hartman submits that, because Minke was represented by solicitors throughout the period from January 9, 2009 through until January, 2015 and thereafter, through the exercise of reasonable diligence, it ought to have been determined, that Minke had a potential claim against Hartman.
31In my view, the issue of whether Minke knew or ought to have known that he had a potential claim for negligence against Hartman is a factual issue which requires a trial for its resolution. Minke and Dr. Mayer both assert that it was not until sometime after Dr. Mayer began treating Minke and after Dr. Mayer had had an opportunity to review Hartman’s clinical notes and records that it was discovered that Hartman’s treatment of Minke fell below an acceptable standard. The evidence on the motion is that the focus, until the receipt of Dr. Mayer’s report in January, 2015, was the connection between the slip and fall injury, the Charcot Foot and the amputation. In my view, it is a triable issue as to whether Minke, through his various lawyers, ought to have discovered the negligence claim against Hartman sooner than July 9, 2013. Whether this is a case which required a medical opinion before the determination could be made about any potential claim against Hartman is also a triable issue, in my opinion.
Disposition
32I am further of the view that this would be an appropriate case for directing a discrete trial of an issue with respect to the discoverability of the cause of action. It is my understanding that examinations for discovery have been completed. I assume the parties would be prepared to present evidence on the trial of an issue in relatively short order. Because of my current schedule, I am reluctant to direct the hearing of oral evidence on the present motion as authorized by Rule 20.05 of the Rules of Civil Procedure. However, if counsel wish to speak to me about ordering the trial of an issue to proceed at the September or November, 2017 trial settings in Kitchener, they may arrange a telephone conference call through the trial coordinator.
33Otherwise, for the above reasons, the motion by Hartman to dismiss this action as being statute barred is dismissed.
34If counsel are unable to agree on the appropriate disposition as to costs they may make written submissions. The written submissions on behalf of Minke are to be delivered to my office within 14 days of the release of these Reasons, not to exceed three pages in length exclusive of a Bill of Costs and Costs Outline. Responding submissions are to be delivered to my office within 28 days of the release of this these Reasons, not to exceed three pages in length. Counsel are directed to file electronic copies of their cost submissions at Kitchener.Superior.Court@ontario.ca to my attention.
“G. E. Taylor”
G. E. Taylor, J.
Released: June 27, 2017
CITATION: Minke v. Hartman, 2017 ONSC 3922
COURT FILE NO.: C-584-15
DATE: 2017/06/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Minke, Linda Minke, Cameron Minke and Brittany Minke
– and –
Stephen Hartman, Foot Works and Foot Works Inc.
REASONS FOR JUDGMENT
G. E. Taylor, J.
Released: June 27, 2017