Court File and Parties

COURT FILE NO.: C-369/17 DATE: 2018-10-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MARY CATHARINE LEWIS, JAMES CRAWFORD LEWIS AND PETER ANTHONY LEWIS Plaintiffs – and – DR. NICHOLAS PETER PLASKOS and DR. PROBUDDHA JOY BANERJEE Defendants

Counsel: Jillian Evans, counsel for Siskinds LLP, Lawyers for the Plaintiffs / Responding Parties Matthew P. Sammon / Ian MacLeod, Counsel for the Defendants / Moving Parties

HEARD: September 18, 2018

The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] In this medical malpractice action, the defendant, Nicholas Peter Plaskos, moves for summary judgment, dismissing the action as against him. At issue is whether the claim is statute-barred under the Limitations Act, 2002.

Factual Background

[2] Mary Catherine Lewis arrived at the Guelph General Hospital, by ambulance on January 2, 2011. She reported having collapsed when her right leg buckled under her as she tried to get out of bed earlier that morning. Ms. Lewis was in considerable pain.

[3] Ms. Lewis ultimately came under the case of an emergency department physician, Dr. Cameron. As hereafter discussed, Dr. Cameron conducted a physical examination, arrived at a differential diagnosis and ordered a variety of tests. An MRI was not requisitioned at that time.

[4] Over the following 48 hours, Ms. Lewis reported an escalation of her symptoms, including nausea, leg numbness, low extremity weakness and shortness of breath. On January 4, 2011, MRI imaging revealed a mass on her spinal cord. Ms. Lewis was transferred to London Health Sciences Centre on January 6, 2011. A neurosurgeon advised that removing the lesion compressing her spinal cord at that point in time offered an extremely low likelihood of any neurological improvement as the paraplegia was then present more than 48 hours.

[5] Ms. Lewis remains a paraplegic.

Litigation History

[6] The plaintiffs, Ms. Lewis and her sons, James Crawford Lewis and Peter Anthony Lewis, retained Siskinds LLP on July 21, 2011 to investigate a medical malpractice claim. Jill McCartney, then a senior associate in the firm’s Medical Malpractice Group, and André Michael, Group Head, had carriage of the file.

[7] On September 30, 2011, Ms. McCartney delivered correspondence to Guelph General Hospital requesting copies of their records pertaining to Ms. Lewis. The records were received on October 14, 2011.

[8] A Notice of Action was issued in the first proceeding on December 24, 2012 at London (Court File #8938/12). A number of doctors, including Dr. Cameron, Guelph General Hospital and Hamilton Health Sciences were named as defendants. The subsequent statement of claim, dated January 23, 2013, alleged, at para. 37(i), that the physicians “… failed to order an MRI of the spine of the Plaintiff, Ms. Lewis, on an urgent or emergent basis, or to request that an MRI be performed sooner”. This statement of claim was served on all defendants in June 2013.

[9] Lerners LLP were retained by the physician defendants, save for Dr. Setiadi. Stephen Schenke had carriage of the file. He delivered a statement of defence and crossclaim, dated November 26, 2013. In this pleading, at para. 21, Dr. Cameron alleged that on January 2, 2011 she had “… requested an urgent MRI with the radiologist who refused to conduct this test …”.

[10] On August 6, 2014, Mr. Michael wrote Mr. Schenke asking that he advise as to the identity of this radiologist. On September 10, 2014, a Demand for Particulars in this regard was also served on behalf of the plaintiffs. Later that month, Mr. Schenke advised Mr. Michael that the radiologist referred to in the statement of defence was Dr. Nicholas Plaskos.

[11] The second proceeding was commenced by statement of claim issued on October 7, 2014, at London (Court File #4220/14). The sole defendant named was Dr. Plaskos.

[12] Dr. Plaskos retained Lenczner Slaght Royce Smith Giffen LLP. Messrs. Sammon and MacLeod had carriage of the file. They delivered a statement of defence on March 30, 2015.

[13] A consent order was granted by Mitchell J. on April 29, 2015 directing both actions be heard one after the other or at the same time as directed by the trial judge.

[14] Examinations for discovery were held in October 2015 and June 2016.

[15] The statement of claim in the within action was amended on January 25, 2016 to add Dr. Probuddha Joy Banerjee as a defendant, pursuant to the order of Morissette J. granted January 12, 2016. The amended statement of defence on behalf of both defendants followed on May 12, 2016.

[16] Consent orders were granted by Arrell RSJ on March 24, 2017 and March 30, 2017 transferring both actions to Kitchener.

[17] A further consent order was granted by Broad J. on July 24, 2017 scheduling the trial for the sittings commencing November 13, 2018 and directing that leave was not required for the defendants’ summary judgment motion, provided such motion was brought by January 1, 2018.

[18] This motion, dated September 22, 2017, was first returnable on October 5, 2017. It was adjourned to be heard as a long motion. Ms. McCartney was cross-examined on her affidavit, sworn January 3, 2018, on February 5, 2018. The summary judgment motion eventually came on for a hearing before me on September 18, 2018.

Issues

[19] The primary issues on this motion are: (a) Is there a genuine issue for trial? (b) Is the claim statute-barred?

[20] The focus is on the discoverability principles pertaining to the Limitations Act, 2002, specifically the actions of plaintiffs’ counsel in reviewing hospital records. The ultimate question raised is whether the plaintiffs could have, through reasonable due diligence, discovered their claim against Dr. Plaskos more than two years before October 7, 2014.

Law

(i) Summary Judgment

[21] The relevant provisions regarding summary judgment, as provided in Rule 20.04, Rules of Civil Procedure, are as follows:

(2) The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

(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:

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

[22] No genuine issue for trial necessitates the judge being able to reach a “fair and just determination on the merits on a summary judgment motion”. The judge must have confidence in finding the necessary facts and applying the relevant legal principles so as to resolve the dispute. See: Hryniak v. Mauldin, 2014 SCC 7, at paras. 49-50.

(ii) Limitation Period

[23] Sections 4 and 5, Limitations Act, 2002, address the limitation period as follows:

Basic limitation period 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery 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).

Presumption (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.

[24] The purpose of a limitation period is said to be: (i) certainty – a potential defendant should be secure in his reasonable expectations that he will not be held to account for ancient obligations; (ii) evidentiary – a potential defendant should no longer be concerned about the preservation of evidence relevant to the claim; and (iii) diligence – plaintiffs are expected to act diligently and not “sleep on their rights”, limitation statutes are an incentive for plaintiffs to bring suit in a timely fashion. See: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, at para. 18, citing M.(K.) v. M. (H.), [1992] 3 S.C.R. 6, (S.C.C.), at paras. 21-24.

(iii) Discoverability

[25] Section 5 above sets out a subjective and an objective test. There is no dispute the plaintiffs and their counsel were unaware of Dr. Plasko’s involvement in the failure to order an MRI of Ms. Lewis until being notified of same in October 2014. The parties disagree on the application of the objective component set out in subsection 5 (1) (b). In this regard, it is the actions of counsel for the plaintiffs that are put to the test.

[26] When a limitation defence is advanced, the onus is on the plaintiffs to show the claim is not statute-barred. See: Soper v. Southcott, [1998] O.J. No. 2799, 39 O.R. (3d) 737 (Ont. C.A.), at para. 14, citing Clemens v. Brown (1958), 13 D.L.R. (2d) 488 (Ont. C.A.), at p. 491.

[27] The limitation period of two years begins to run when the plaintiffs discover the “material facts” for a cause of action or when the plaintiffs ought to have discovered those facts by the exercise of reasonable diligence. Determining whether a person has discovered a claim is a fact-based analysis. The question posed is whether the prospective plaintiffs know enough facts on which to base allegations of negligence against the defendant. If the plaintiffs do, then the claim has been “discovered” and the limitation period begins. See: Lawless v. Anderson, 2011 ONCA 102, at para. 23.

[28] Certainty of a potential defendant’s responsibility for an act or omission that caused or contributed to the plaintiffs’ loss is not required. It is enough to have “prima facie” grounds to infer that the acts or omissions were caused by the identified parties. See: Kowal v. Shyiak, 2012 ONCA 512, at para. 18; and Longo v. MacLaren Arts Centre Inc., 2014 ONCA 526, at para. 44.

[29] Plaintiffs are deemed to have all of the “material facts” when they are aware of: (a) what was wrong, (b) why it was wrong, (c) what would have to be done to correct it; and (d) who was responsible. See: Lawless, supra, at para. 30.

[30] Plaintiffs are 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. See: Soper, supra, at paras. 20-21.

[31] In deciding when a person in the plaintiffs’ circumstances and with his or her abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. See: Fennell v. Deol, 2016 ONCA 249, at para. 24.

Discussion

(i) Medical Records

[32] The limitations issue in this case initially arises as a result of the incomplete notes recorded by Dr. Cameron as hereafter discussed.

[33] Physicians and other health care providers are trained to accurately record all matters pertaining to a patient, including examination, diagnosis and treatment.

[34] Such professionals, particularly in a hospital setting, see hundreds of patients each year. Their notes and records can be of critical importance in the litigation process, as often they will have little to no recollection of the patient or their involvement when the trial occurs. Memories fade. In this regard, it is of some interest that Dr. Cameron and Dr. Plaskos have a different recollection of their discussion regarding an MRI for Ms. Lewis, there being no record made by either.

[35] Of greater importance is that the notes and records remind the individual of prior involvement with the patient, and inform other physicians and healthcare providers who are subsequently tasked with the patient’s care, as to what has occurred and why, for example, certain tests are conducted or not.

[36] Ms. Lewis arrived at the Guelph General Hospital, by ambulance, on January 2, 2011, at approximately 8:30 a.m. She initially met with the triage nurse. Following an examination by Dr. Ressor, certain tests were conducted, including x-rays. One imaging report was completed by Dr. Plaskos, a radiologist.

[37] At 18:00 hrs., Dr. Cameron attended with Ms. Lewis. In her notes, Dr. Cameron records a brief history of the patient’s complaints, her physical examination, differential diagnosis and other relevant matters all following the above-noted recorded time. Of importance here are the following notes as recorded by Dr. Cameron:

• will check post void residual
• will D/W radiol re: imaging
• MRI refused as N rectal tone & 0 bilat leg weakness
• will do CT abdo pelvis.

The physician’s short form notations are said to mean the following:

• will discuss with radiologist / radiology re imaging
• MRI refused as normal rectal tone and no bilateral leg weakness.

[38] Dr. Cameron neglected to record that she spoke to Dr. Plaskos about an MRI and the details of that interaction. Dr. Plaskos did not record the conversation either, at least not on the hospital chart.

[39] At 18:14 hrs., Dr. Cameron records arranging for further investigations and medications, including a post void bladder scan, a chest x-ray, morphine and electrocardiogram.

(ii) Plaintiffs’ Solicitors

[40] As previously mentioned, Ms. McCartney and Mr. Michael had carriage of the plaintiffs’ file. At the relevant time period, Ms. McCartney was a senior associate at the firm. Her practice was almost exclusively plaintiff side medical malpractice. Mr. Martin was Group Head of the Medical Malpractice Group.

[41] Siskinds LLP was initially retained to investigate a potential medical malpractice claim. Ms. McCartney requisitioned a copy of the hospital records pertaining to MS. Lewis on September 30, 2011. The records were received on or about October 14, 2011.

[42] Ms. McCartney’s role was to review the hospital records and, thereafter, draft a statement of claim. The review process did not commence until November 2012, a few months prior to the presumptive limitation period. In 2012, Ms. McCartney was on a “working” maternity leave for six months. It appears no other lawyer was involved with the file.

[43] Ms. McCartney commenced the review of the hospital records on November 13, 2012. At the time, she understood the potential claim was based on delayed diagnosis. She had previously been involved in a similar case. Over the next six weeks, Ms. McCartney spent considerable time in reviewing and analyzing the hospital records. She was looking to see what was done or not done and who was involved in the care of Ms. Lewis, particularly regarding the decision not to order an MRI. The analysis would determine who would be named as defendants.

[44] During the review process, Ms. McCartney dictated a summary in the form of draft correspondence for a potential expert consult request. Relevant to the issues on this motion is the following extract from that summary:

Mrs. Lewis presented to Guelph General Hospital on January 2, 2011. She was triaged at approximately 08:19. She had complaints, including nausea and back pain radiating from her shoulders to her right leg. She was noted to have lower leg swelling. Her medical history was noted to be significant for myocardial infarction, congestive heart failure, type II diabetes, and peripheral vascular disease. Her medications were listed as Diamicron, Micardis, Advair, Apro-K, Amlodipin, Simvastatin, and Lasix. She was triaged at CTAS level 3.

Mrs. Lewis was seen in the emergency room at approximately 09:25 by Dr. Reesor. She was noted to be “sweaty” with a slight shortness of breath. Leg sensation was noted to be present. Dr. Reesor’s orders included an x-ray of the lumbar spine. The x-rays of the lumbar spine were reported as “unremarkable”.

Later the same day (January 2, 2011), at approximately 18:00, Mrs. Lewis was seen by Dr. Cameron (who appears to have taken over care of Mrs. Lewis in the emergency room). On examination, Dr. Cameron noted that Mrs. Lewis was unable to move her right leg against gravity. Mrs. Lewis complained that her right leg was numb. Mrs. Lewis was noted to have decreased sensation from the L1 level down her right leg. Mrs. Lewis had normal rectal tone and normal proximal sensation. Dr. Cameron queried CVA, dissection, and cauda equina. Dr. Cameron also noted that an MRI was “refused” (?) as Mrs. Lewis had normal rectal tone and no bilateral leg weakness. Dr. Cameron planned for an abdominal and pelvic CT and considered whether or not to reverse the INR or not.

Ms. Lewis underwent a CT scan of her abdomen and pelvis, which was reported as showing a 1.2 obstructing urolithiasis within the distal right ureter, which was causing mild proximal hydroureteronephrosis.

[45] In her affidavit, sworn January 3, 2018, Ms. McCartney addressed the notes of Dr. Cameron, at paras. 42-59, saying:

42. It was apparent to me from my review of the Cameron 18:00 Entry (with many of the words being indecipherable) that the note had been written during an 18:00 pm re-assessment attendance at Mrs. Lewis’ bedside.
43. I also understand that the Cameron 18:00 Entry recorded Dr. Cameron’s observations and assessments of Mrs. Lewis, together with her planned course of care for the patient.
44. From reviewing the Cameron 18:00 Entry, and based on my experience with medical documentation, it appeared to me prior to commencing the Initial Action on the Plaintiffs’ behalf that the entire note reflected a single, continuous interaction: only one time is documented, and only one concluding signature is on the page.
45. I interpreted Dr. Cameron’s note to appear to chronicle the patient’s history, the results of her physical examination, the list of her ‘differential diagnoses’ and her intended plan of care.
46. In the portion of her note entitled “DDx” (which I know to be an abbreviation for differential diagnoses) I interpreted Dr. Cameron’s note to be considering various possible causes for Mrs. Lewis’s symptoms and detailing what she “will do” to explore these possibilities.
47. Among the things that Dr. Cameron indicates in the entry that she “will do” are: (a) “will check post-void residual” (b) “will d/w (discuss with) radiol.” (c) “will do CT abdo pelvis”
48. Given my knowledge that checking a patient’s post-void residual necessitates the performance of ultrasound imaging, it was apparent to me that the notation immediately following “will check post-void residual” of “will d/w radiol.” was in reference to Dr. Cameron’s plan to make arrangements for that imaging study with a radiologist.
49. It was further apparent to me that the next several lines of the entry, separated as they were by a blank line from the previous entries about post-void imaging, represented another, discreet element of Dr. Cameron’s treatment plan: specifically, her plan that she “would” make arrangements to obtain the radiological imaging that she felt was indicated.
50. The word immediately following “MRI” was difficult to decipher and unclear to me.
51. Among possible interpretations I felt were likely was “refused”.
52. Prior to commencing the initial Action, I did not interpret either that word, or the Cameron 18:00 Entry in its entirety, to disclose that any such ‘refusal’ (if indeed that was the word) had been the act of any decision-maker other than Dr. Cameron.
53. I understood from the Entry that Dr. Cameron had herself failed or declined to arrange for an MRI based on her clinical observations and differential diagnoses.
54. My understanding in this regard was further informed by the timing and contents of the Cameron 18:14 entry. I inferred that after completing her 18:00 assessment and documenting what she “would” do, she proceeded minutes later to make orders and arrangements as she had indicated she “would do” in her 18:00 Entry.
55. Prior to commencing the initial Action, I did not know – nor in any way suspect – from the Cameron 18:00 Entry that a conversation had occurred with a radiologist, or any other physician, prior to the note being completed.
56. I did not know – nor in any way suspect – from either the Cameron 18:00 Entry nor the rest of the GGH record that Dr. Cameron had sought an imaging study from a radiologist, had been denied that request by that radiologist, and had then continued with her note, assessment, plan and orders.
57. I noted in my review that there was no order or requisition for an MRI completed by her, or by any physician, on January 2, 2011.
58. I further noted that there was no documentation in the record of Dr. Cameron having requested an MRI on January 2, 2011.
59. Furthermore, nowhere in any of the four (4) radiology studies reported on January 2, 2011 that I reviewed prior to commencing the Initial Action does any radiologist reference having had any discussion with Dr. Cameron about any treatment plan, having been asked by Dr. Cameron to arrange for an MRI or having refused or denied Dr. Cameron’s request for any imaging study.

[46] The cross-examination of Ms. McCartney on this affidavit took place on February 5, 2018. The only contemporaneous note made by Ms. McCartney during her review and analysis of the hospital records was the summary previously mentioned. In result, Ms. McCartney’s evidence on the cross-examination relied, in large measure, on her recollection of what she had done.

[47] Regarding Dr. Cameron’s notes, cross-examination of Ms. McCartney revealed the following: (i) she understood Dr. Cameron’s note was an important record for the purposes of the plaintiff’s case (Q. 257) and that it was important to review the note carefully to assess what the doctor did and why she did it (Q. 262); (ii) she knew Dr. Plaskos was the only radiologist involved in interpreting imaging studies of Ms. Lewis on January 2, 2011 (Q. 242-244), that Dr. Banerjee was similarly involved on January 3, 2011 (Q. 245); (iii) she understood from prior cases that emergency room physicians may speak to radiologists to discuss imaging, or for the purposes of obtaining urgent imaging (Q. 302-303), adding she would be looking for some indication in the chart, such as an order or requisition with that denoted (Q. 316); (iv) she reviewed the note with Mr. Michael regarding interpretation of Dr. Cameron’s handwriting, both being of the view the particular word was “refused”, putting (?) in her summary to show this was their best interpretation (Q. 281-294); (v) reference to “will D/W radiol re: imaging” was interpreted as discuss with a radiologist or radiology department (Q. 297-301); (vi) she acknowledged such reference could denote an intent to speak to a radiologist for advice about what to do in terms of imaging, or it could denote an attempt to order a test but she read this as a “to do” note to discuss with a radiologist or the radiology department (Q. 304-310); (vii) this reference gave her a clue that she needed to look in the records to see if and when that was done (Q. 312), but the note did not tell her that Dr. Cameron had spoken to a radiologist or the radiology department (Q. 319-323); (viii) associated note as a plan to speak to a radiologist to check post void residual (Q. 234-238, 324), not being unfair to look at the note to discuss with radiologist as relating to a CT scan or MRI, but did not attribute it to that because of the way the notes were grouped (Q. 335); (ix) she has seen other hospital records indicating nurses conduct ultrasound tests for post void residual but she did not have the knowledge as to whether such tests are always done by nurses (Q. 343); (x) she would expect to see an order or a requisition in the records for a diagnostic test (Q. 356); (xi) she understood the note at 18:00 hours represented one interaction with the patient, that all was done on one occasion (Q. 331), examining the note carefully to see if there was different handwriting, or different pen, a different signature or that there was another time and nothing gave her any indication that the note was from more than one time (Q. 361-366) (xii) as to the note “MRI refused”, she acknowledged “refusal” generally denotes a declaration of unwillingness to do something that’s requested (Q. 372), but she did not interpret Dr. Cameron’s note as her request being refused by someone else; rather that Dr. Cameron was refusing to do an MRI because of normal rectal tone and no bilateral leg weakness (Q. 374) (xiii) she acknowledged one possibility is that there has been a request and it has been refused by somebody else (Q. 377), but that was not the possibility that occurred to her (Q. 378); (xiv) if a test had been requested and refused, she would look for some indication in the records or notes to tell her someone else has refused it but there was nothing in this record that told her that (Q. 382); (xv) it did not occur to her that another health care practitioner was involved, reading the note as saying Dr. Cameron decided not to do an MRI, that she is going to do a CT scan of the abdomen (Q. 391-392); (xvi) the reference to “will discuss with radiologist or radiology” did not tell her there had been a discussion or that there had been a refusal (Q. 393 and 401), that she would expect to see a note telling her explicitly there had been a discussion and a refusal (Q. 394); (xvii) if seeking an urgent MRI, would expect to see that in the chart or on an order or requisition, would expect to see it charted a test had been rejected or refused by a radiologist (Q. 397-399); (xviii) she read the note in its totality, looked at the way lines were grouped, saw the “to do” discussion with radiology was with respect to post void residual and that it was all under one time, nothing in the note telling her someone else other than Dr. Cameron had made a refusal for an MRI (Q. 431) (xix) had she understood at the time of reviewing the note that Dr. Cameron had made a request for an MRI and that the request was refused by someone else, she would have inquired as to who that person was and would have named that person in the lawsuit (Q. 433-435, 470); (xx) it did not occur to her that another person refused the MRI, the note did not tell her of another person, no orders or requisitions, nothing in the note told her there had been a discussion with a radiologist (Q. 438-446) (xxi) she did not question why Dr. Cameron would chart that she was refusing an MRI (Q. 452); and (xxii) her summary did not say that she concluded Dr. Cameron decided to refuse an MRI, only recording that an MRI was refused (Q. 453-468).

Analysis

[48] The initial question on the motion is whether this is an appropriate case for summary judgment. I conclude a fair and just adjudication can be made, as all of the evidence pertaining to this dispute has been presented. The onus is on the plaintiffs to establish that the claim against Dr. Plaskos is not statute-barred. Ms. McCartney provided affidavit evidence and she was cross-examined. Opinion evidence is not required. The evidentiary record is complete, allowing the court to resolve the dispute.

[49] The focus of the dispute is on sub-section 5(1)(b), Limitations Act, 2002. In particular, the issue is whether the analysis of hospital records by Ms. McCartney has met the test of being objectively reasonable.

[50] After the firm was retained by the plaintiffs, Ms. McCartney was assigned the task of reviewing the hospital records. In that process, she was looking to see what was or was not done and why. Ms. Cartney was considering who was responsible. She knew this was a case of potential delayed diagnosis. Those responsible were to be named as defendants in the statement of claim.

[51] There are three preliminary matters that are of concern, namely delay, the state of the hospital records and the lack of notes by Ms. McCartney.

[52] The hospital records were received by Ms. McCartney on or about October 14, 2011. Thirteen months later, in November 2012, the review of those records commenced. While Ms. McCartney was on a working maternity leave during part of that period of time, presumably meaning part-time attendance at the office and with responsibility for other files as well, the review process should have commenced much earlier. Mr. Michael also had carriage of the file. Other junior lawyers in the firm could have been asked to assist.

[53] There is always a danger in waiting until the presumptive limitation period is about to expire. The process can become rushed. Due diligence was not met.

[54] It is now known that Dr. Cameron failed to fully record her involvement with Ms. Lewis, particularly her consultation with Dr. Plaskos.

[55] Litigation lawyers, particularly those involved in personal injury and medical malpractice cases, routinely review physician’s notes and hospital records. These lawyers are aware of the dangers in conducting such review regarding illegible handwriting, abbreviated terms and incomplete recording. The failure of physicians to fully record matters pertaining to a patient is often a topic in the litigation process, including at trial. In the absence of records, physicians often have difficulty recalling specific events and discussions.

[56] In my view, Ms. McCartney and Mr. Michael, both experienced medical malpractice lawyers, would have, or should have, been alert to the possibility the physician’s notes were incomplete.

[57] The only contemporaneous note made by Ms. McCartney during her review and analysis of the hospital records was the summary previously mentioned. The summary is incomplete, making no mention of her conclusions as now presented on this motion and lacking detail as to the analytical process undertaken. Hence, on cross-examination, Ms. McCartney was unable to recall her state of mind when reviewing the records and the details of her thought process. Like physicians, lawyers need to record all details of their involvement for future use.

[58] The first step in the review process is to determine what was recorded. When part of the record contains handwritten notes, the lawyer looks to see if such are legible. There was a legitimate concern with Dr. Cameron’s handwriting and use of abbreviated terms. Ms. McCartney and Mr. Michael, for example, looked at a key word and correctly concluded it to be “refused”. “Radiol” was considered to be radiologist or radiology department. When there is any concern as to what was written, it requires inquiry of the record keeper.

[59] There are two conclusions Ms. McCartney made that are of critical importance. First, she considered the phrase “will discuss with radiologist or radiology department re: imaging” as connected to the preceding note “will check post void residual”. Second, Ms. McCartney determined “MRI refused as normal rectal tone and no bilateral leg weakness” as Dr. Cameron declining to order an MRI. Such are possible interpretations or conclusions but there are others that, in my view, are far more reasonable.

[60] Just as physicians arrive at a “differential diagnosis” following examination of a patient, so too must a lawyer consider all reasonable options in their analysis of a case.

[61] Connecting “will discuss with radiologist or radiology department re: imaging” to “post void residual” is too restrictive. The more reasonable interpretation is that Dr. Cameron was going to seek assistance in determining what further imaging tests were required. At this point, Dr. Cameron was aware the lumbar x-ray, as interpreted by Dr. Plaskos, was inconclusive having regard to the nature of Ms. Lewis’ complaints.

[62] Dr. Cameron’s note is all recorded under the time of 18:00 hours. Ms. McCartney incorrectly assumed this represented one event. But there are gaps in the recording and, having regards to the words used, it is more likely the record should have been seen as several separate recordings.

[63] In this regard, the words “MRI refused” invites the question “by whom”. Ms. McCartney’s conclusion that Dr. Cameron refused her own request is not reasonable. It is contrary to normal use of English language and, as it follows the note “will discuss with radiologist …” with a gap in between, leads to the inference someone else is involved. At a minimum, there are a number of possible interpretations and each must be pursued. Indeed, Ms. McCartney acknowledged in cross-examination that one possible interpretation was that the MRI had been refused by someone else, but such a possibility did not occur to her at the time of her review. It should have.

[64] The failure to order an MRI in a timely fashion is central to the plaintiffs’ case. Ms. McCartney knew that Dr. Plaskos was involved in interpreting an x-ray of Ms. Lewis on January 2, 2011, as had been requested by Dr. Reesor. Ms. McCartney also knew that emergency department physicians will sometimes consult a radiologist as to what imaging to order or for an urgent MRI. These factors, and others previously addressed, meant Ms. McCartney had to consider all reasonable scenarios. Instead, she arrived at a conclusion without examining reasonable alternatives. Her analysis, in result, was incomplete.

[65] I conclude the analysis of hospital records by Ms. McCartney was not objectively reasonable, particularly having regard to her abilities and experience as a medical malpractice lawyer.

[66] The cause of action occurred on January 2, 2011. The limitation issue is with discoverability and so the presumptive limitation date of January 2, 2013 does not apply.

[67] The statement of claim was issued on October 7, 2014. Was it discoverable prior to October 7, 2012? I conclude it was. The medical records were received in October 2011. A diligent review would have led to further inquiry. The potential claim against Dr. Plaskos, in my view, was discoverable by December 31, 2011 and certainly long before October 7, 2012.

[68] In result, I conclude the limitation period had expired prior to the statement of claim being issued. The claim against Dr. Plaskos is statute-barred by operation of Section 5, Limitations Act, 2002. The claim against him must be dismissed. I so order.

[69] At the conclusion of the hearing, counsel reported they had resolved the issue of costs.

D.J. Gordon J. Released: October 16, 2018

COURT FILE NO.: C-369/17 DATE: 2018-10-16 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARY CATHARINE LEWIS, JAMES CRAWFORD LEWIS AND PETER ANTHONY LEWIS Plaintiffs – and – DR. NICHOLAS PETER PLASKOS and DR. PROBUDDHA JOY BANERJEE Defendants REASONS FOR JUDGMENT D.J. Gordon J. Released: October 16, 2018