COURT FILE NO.: CV-15-526236
DATE: 20190528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIN CLARKE, FAHEEM REHMAN, LYDIA CLARKE by her Litigation Guardian ERIN CLARKE, and AALIA CLARKE by her Litigation Guardian ERIN CLARKE
Plaintiffs
– and –
ROUGE VALLEY HEALTH SYSTEM, DR. JOANNE MA, DR. DAYNA MIRIAM FREEDMAN, DR. COLETTE MARIE RUTHERFORD, DOCTOR DOE 1, DOCTOR DOE 2, and DOCTOR DOE 3, PATRICIA JEAN GUZMAN, JANICE MERRIWEATHER, NURSE DOE 1, NURSE DOE 2 and NURSE DOE 3
Defendants
Erin Clarke and Faheem Rehman, Self-represented
Nada Nicola-Howorth and Stephen Ronan, for the Defendants Dr. Joanna Ma, Dr. Dayna Miriam Freedman and Dr. Colette Marie Rutherford
No one appearing for the Defendants Rouge Valley Health System, Patricia Jean Guzman and Janice Merriweather
HEARD: May 1, 2019
M. D. FAIETA j.
REASONS FOR DECISION
INTRODUCTION
[1] The Plaintiffs bring this medical malpractice action for damages arising from injuries suffered by Erin Clarke, as a result of a plastic bulb syringe being left in her vagina following a laparoscopic hysterectomy that was performed by the defendant Dr. Ma, with the assistance of the defendants Dr. Freedman and Dr. Rutherford, (collectively “the defendant doctors”) at the Rouge Valley Hospital on November 10, 2009.
[2] On November 14, 2009, Ms. Clarke attended a medical clinic with complaints of blood in her urine, increased urinary frequency and tenderness in her pubic area. She was prescribed an antibiotic and told to return if her condition worsened.
[3] On November 16, 2009, Ms. Clarke returned to the medical clinic with complaints of vaginal odour and discharge as well as discomfort while urinating. A pelvic examination by the attending physician identified green plastic material in Ms. Clarke’s vagina. The physician instructed Ms. Clarke to attend the emergency department of a hospital immediately.
[4] On November 16, 2009, Ms. Clarke attended Lakeridge Health’s Oshawa Hospital and the attending physician removed the syringe from her vaginal vault. The attending physician told Ms. Clarke that the syringe was a surgical instrument from the laparoscopic hysterectomy that had been left behind. On examination for discovery, Ms. Clarke stated that she knew that the syringe should not have been left inside her and that it had been the cause of her pain and other symptoms that she had experienced.
[5] Ms. Clarke requested and obtained a copy of her hospital chart in relation to the hysterectomy about 30-60 days later.
[6] On November 30, 2009, Ms. Clarke attended an appointment with Dr. Ma as she continued to experience pelvic discomfort and discomfort while urinating. Ms. Clarke had been told by her family doctor to see Dr. Ma because Dr. Ma had created “the problem” and wanted her to fix it. Dr. Ma referred Ms. Clarke to an urologist. Dr. Ma also apologized to Ms. Clarke. Ms. Clarke did not return to Dr. Mas as she did not trust her because of the mistake that she had made.
[7] On December 1, 2009, Ms. Clarke attended an appointment with her new family doctor, Dr. Elias. They discussed the operative report from the hysterectomy as well as the reference in that report to an attempt to retrieve a tubal ligation clip. Dr. Elias ordered an x-ray of Ms. Clarke’s abdomen. The results, being that the clips were dislodged, were discussed at an appointment on December 15, 2009. On January 7, 2010, Dr. Elias spoke to Ms. Clarke and she advised her that a surgeon, Dr. Chin, had recommended no further action regarding the “mislodged tubal ligation”. Ms. Clarke accepted this recommendation.
[8] This action was not commenced until April 16, 2015.
[9] Ms. Clarke states that she had no knowledge that the plaintiffs had a cause of action until they consulted with counsel on April 23, 2013.
[10] In response to a Demand for Particulars in respect of the allegation in the Statement of Claim that “the Plaintiffs state that they did not discover the cause of action as against the Defendants until April 23, 2013, and as such no limitation period has expired as against the Defendants”, the plaintiffs’ former counsel delivered the following Response to Demand for Particulars, dated August 28, 2015, which states:
The Plaintiffs had no knowledge that they had a cause of action against the Defendants, and in particular that the Defendants had potentially breached the standard of care, until after they consulted counsel on April 23, 2013.”
[11] At the hearing of this motion, Ms. Clarke also stated that she had not commenced this action in December, 2009 as it was not something that crossed her mind as she was focused on improving her health.
[12] The defendant doctors bring this motion for summary judgment to dismiss the action on the ground that it is statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. For the reasons given below, I have granted the motion.
ANALYSIS
Appropriateness of motion for summary judgment
[13] This motion for partial summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is no suggestion by the plaintiffs that this is an inappropriate case for summary judgment. Partial summary judgment is a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner. In determining whether it is in the interest of justice to grant a motion for partial summary judgment, the court must consider: (1) whether there is a risk of duplicative or inconsistent findings at trial, and (2) the consequences of the motion in the context of the litigation as a whole: Vandenberg v. Wilken, 2019 ONCA 262, paras. 10-11.
[14] I find that the issue of whether this medical malpractice action was commenced after the expiry of the limitation period is easily bifurcated from the other issues in this action and serves to resolve the action against the defendant doctors in an expeditious and cost-effective manner. Given the undisputed evidence related to the discovery of the claim and the circumstances surrounding the reasons for the delay in bringing this action, there is no risk of duplicative or inconsistent findings, particularly in the context of the litigation as a whole because the action remains pending against the remaining defendants.
Was this action against the defendant doctors commenced after the expiry of the limitation period?
[15] Section 4 of the Limitations Act, 2002 provides that, unless otherwise provided, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Under s. 1 of the Act, a “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.
[16] Section 5 of the Act governs when a claim is discovered.
[17] Subsection 5(1) of the Act provides a subjective test and an objective test for when a claim is discovered. It states that 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,
(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).
[18] Subsection 5(2) of the Act provides that 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.
Presumed Date of Subjective Discovery of the Claim
[19] The bulb syringe was left inside Ms. Clarke by the defendants during the laparoscopic hysterectomy that occurred on November 10, 2009. As a result, pursuant to s. 5(2) of the Act, Ms. Clarke is presumed to have known of the matters referred to in s. 5(1)(a) of the Act on November 10, 2009. The onus is on Ms. Clarke to prove that her claim was not discovered or discoverable until April 16, 2013.
Subjective Test
[20] Under s. 5(1)(a) of the Act a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an “appropriate” means to seek to remedy the claim: Velgakis v. Servinis, 2017 ONCA 541, para. 5.
[21] While Ms. Clarke states that she did not know that she had a cause of action until she met with counsel in April, 2013, it is my view she ought to have known by December 31, 2009 at the latest, given that by that time she knew that the syringe had been left inside her by the defendant doctors, that it had been a mistake to do so, that as a result she had become ill and that Dr. Ma had apologized for leaving the syringe inside her.
[22] In order to satisfy s. 5(1)(a)(ii) and (iii), a plaintiff need not have knowledge that an action or omission causing injury is wrongful or come to a legal conclusion regarding the defendants’ liability to her. The plaintiff must only have sufficient evidence on which to base an allegation of negligence: Buys (appeal by Dale) v. Frank, 2017 ONCA 32, paras. 6-7. Ms. Clarke did not need legal advice from counsel in order to be aware that she had a claim against the defendant doctors. Ms. Clarke had more than sufficient facts on which to base an allegation of negligence against the defendant doctors.
[23] The appropriateness requirement under s. 5(1)(a)(iv) of the Act serves to deter needless litigation and can have the effect “… of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant's actions.": Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, para. 17. “Appropriate” in this context means legally appropriate: Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, para. 48. A proceeding against an expert professional may be unnecessary and thus legally inappropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts. For instance, in Brown v. Baum, 2016 ONCA 325, 348 O.A.C. 251, it was not legally appropriate for the plaintiff to sue her doctor for professional negligence while the doctor was attempting to ameliorate complications resulting from a surgery he performed on the plaintiff. Further, a proceeding may be unnecessary and thus inappropriate where the plaintiff has pursued other processes that have the potential to resolve the dispute between the parties and eliminate the plaintiff's loss: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762.
[24] Ms. Clarke states her focus following the removal of syringe was on improving her health and that it did not occur to her from pursue a claim. These reasons do not engage s. 5(1)(a)(iv) of the Act.
[25] Accordingly, the date of actual knowledge of the claim against the defendant doctors was December 31, 2009 at the latest.
Modified Objective Test
[26] Under s. 5(1)(b) of the Act a claim is discovered on the “day on which a reasonable person with the abilities and circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)”.
[27] The proper approach in applying s. 5(1)(b) of the Act was explained by the Ontario Court of Appeal in Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369. At para. 32, Paciocco, J.A. stated:
… s. 5(1)(b) is about knowing what one ought to know. In context, the reasonable person component of s. 5(1)(b) serves to ensure that the plaintiff acted with reasonable levels of prudence and attention in attending to the risk of injury, loss or damage. Because the objective component of the test is modified, the degree of prudence and attention that can reasonably be expected will vary among persons with claims, according to their abilities and circumstances - things such as level of intelligence, education, experience, resources, health, power imbalances, dependence, and situational pressures or distractions that might bear on the ability to appreciate what is happening. It is imperative to remember, however, notwithstanding that the term "abilities" may be wide when viewed in isolation, s. 5(1)(b) requires that once material characteristics are attributed to the reasonable person, that hypothetical person will remain reasonable. If the hypothetical person is imbued with unreasonable imprudence or inattention the objective component of the test is defeated, and only one result can obtain.
[28] In my view, a reasonable person with Ms. Clarke’s abilities and circumstances first ought to have known of the matters referred to in s. 5(1)(a) of the Act by December 31, 2009 at the latest.
Was the Running of the Limitation Period Suspended under s. 15(4) of the Act?
[29] Ms. Clarke submitted that the limitation period should be tolled because she was incapable of commencing a proceeding in respect of the claim because of her physical, mental or psychological condition within the meaning of s. 15(4)(a)(i) of the Act and because the defendant doctors withheld vital information within the meaning of s. 15(4)(c)(i) of the Act. There is an insufficient evidentiary basis to support these assertions.
CONCLUSIONS
[30] I find that Ms. Clarke discovered her claim against the defendant doctors by December 31, 2009. The Statement of Claim was issued after the two year limitation period expired. I hereby grant the defendant doctors’ motion for summary judgment. Both Ms. Clarke’s claim and the derivative Family Law Act claims of the other plaintiffs are dismissed.
[31] The defendant doctors seek their costs of this action in the amount of $1,000.00.
[32] In the circumstances, I decline to award costs to the defendant doctors.
Mr. Justice M. D. Faieta
Released: May 28, 2019
COURT FILE NO.: CV-15-526236
DATE: 20190528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIN CLARKE, FAHEEM REHMAN, LYDIA CLARKE by her Litigation Guardian ERIN CLARKE, and AALIA CLARKE by her Litigation Guardian ERIN CLARKE
Plaintiffs
– and –
ROUGE VALLEY HEALTH SYSTEM, DR. JOANNE MA, DR. DAYNA MIRIAM FREEDMAN, DR. COLETTE MARIE RUTHERFORD, DOCTOR DOE 1, DOCTOR DOE 2, and DOCTOR DOE 3, PATRICIA JEAN GUZMAN, JANICE MERRIWEATHER, NURSE DOE 1, NURSE DOE 2 and NURSE DOE 3
Defendants
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: May 28, 2019