Loy-English v. The Ottawa Hospital et al.

[Indexed as: Loy-English v. Ottawa Hospital]

Ontario Reports

Ontario Superior Court of Justice

MacLeod J.

October 21, 2019

149 O.R. (3d) 129 | 2019 ONSC 6075

Case Summary

Civil procedure — Parties — Adding or substituting parties — Plaintiff suffering perforated duodenum during endoscopic procedure — Statement of claim naming one doctor as a defendant and also naming "Dr. Doe" for unidentified defendants — Plaintiff moving to substitute names of six doctors for "Dr. Doe" — Motion allowed in respect of five of the six doctors as specific allegations in the statement of claim sufficiently pointed the litigation finger at those five.

Civil procedure — Pleadings — Amendment — Misnomer — Plaintiff suffering perforated duodenum during endoscopic procedure — Statement of claim naming one doctor as a defendant and also naming "Dr. Doe" for unidentified defendants — Plaintiff moving to substitute names of six doctors for "Dr. Doe" — Motion allowed in respect of five of the six doctors as specific allegations in the statement of claim sufficiently pointed the litigation finger at those five.

Limitations — Medical malpractice — Practice — Pleadings — Plaintiff suffering perforated duodenum during endoscopic procedure — Statement of claim naming one doctor as a defendant and also naming "Dr. Doe" for unidentified defendants — Plaintiff moving to substitute names of six doctors for "Dr. Doe" — Motion allowed in respect of five of the six doctors as specific allegations in the statement of claim sufficiently pointed the litigation finger at those five.

The plaintiff was a physician who suffered a perforated duodenum after undergoing an endoscopic retrograde cholangio-pancreatography ("ERCP") procedure. She was discharged without the perforation having been diagnosed or detected. Subsequently, when the plaintiff was admitted to emergency, she suffered severe life-threatening infection and an adverse reaction to medication. She entered a coma followed by a lengthy period of hospitalization. She was left with a permanent ostomy and other disabilities. She issued a statement of claim identifying Dr. Dhaliwal as the physician who performed the ERCP procedure. "Dr. Doe" was given as a pseudonym for another physician who treated the plaintiff in the course of her stay at the hospital. It was discovered that although Dr. Dhaliwal was the supervising physician, the procedure was carried out by Dr. Fournier. The plaintiff was discharged by Dr. Kelly. Others subsequently identified as being involved with the plaintiff's care were Dr. Yelle, a general surgeon, Dr. Gauthier, a surgical fellow, Dr. Morellato, a resident in the surgical department, and Dr. Hebert, the chief physician in the emergency department. She commenced separate actions naming those and other doctors as defendants, then issued a claim against her original [page130] lawyer because the defendants had taken the position that the actions were statute-barred. The plaintiff amended the statement of claim in the original action to make specific allegations against certain of the named physicians. She then brought a motion to substitute the names of those physicians for the name of "Dr. Doe".

Held, the motion should be allowed in part.

Leave was granted to add Drs. Fournier, Kelly, Yelle, Gauthier and Morellato as defendants, while leave to add Dr. Hebert was denied. The statement of claim left no doubt that the plaintiff was asserting negligence on the part of the physician who performed the ERCP and perforated her duodenum, on the part of the physician who failed to diagnose the perforated bowel and on the part of the physician who discharged her despite her complaints of pain. Those acts or omissions were clearly associated to Dr. Fournier and Dr. Kelly such that it was fair and reasonable to amend the claim to name them as parties under the doctrine of misnomer. Specific allegations of negligence concerning medication errors, failure to intubate, failure to take aggressive measures when the plaintiff was slipping into a coma, failure to exercise reasonable care in the management of the infection and failure to take measures to stop the spread of infection, were sufficient to point the litigation finger at Drs. Yelle, Gauthier and Morellato. With respect to Dr. Hebert, there was nothing in the pleading directly pointing the litigation finger at the emergency room physician.

Abarca v. Vargas (2015), 123 O.R. (3d) 561, [2015] O.J. No. 37, 2015 ONCA 4, 380 D.L.R. (4th) 120, 72 M.V.R. (6th) 181, 329 O.A.C. 163, 248 A.C.W.S. (3d) 677; Bearss v. Scobie, [2013] O.J. No. 4308, 2013 ONSC 5910, 234 A.C.W.S. (3d) 600, 19 B.L.R. (5th) 133 (Master); Bertolli v. Toronto (City), [2018] O.J. No. 3456, 2018 ONCA 601, affg [2017] O.J. No. 6822, 2017 ONSC 7534 (S.C.J.); Davies v. Elsby Bros Ltd., [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.); Essar Algoma Steel Inc. v. Liebherr (Canada) Co., [2011] O.J. No. 1311, 2011 ONSC 1688, 18 C.P.C. (7th) 117, 280 O.A.C. 243, 199 A.C.W.S. (3d) 1098 (Div. Ct.); First Gulf Bank v. Collavino Inc., [2013] O.J. No. 3278, 2013 ONSC 4630 (S.C.J.); Hassan v. Dunraj, [2014] O.J. No. 6119, 2014 ONSC 7374 (S.C.J.); Loblaw Properties Ltd. v. Turner Fleischer Architects Inc., [2018] O.J. No. 1059, 2018 ONSC 1376, 291 A.C.W.S. (3d) 276, 83 C.L.R. (4th) 71 (S.C.J.); Loy-English v. Fournier (2018), 143 O.R. (3d) 501, [2018] O.J. No. 5606, 2018 ONSC 6212 (S.C.J.); Martin v. John Doe, [2017] O.J. No. 6012, 2017 ONSC 6955 (Master); Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492, 152 O.A.C. 201, 15 C.P.C. (5th) 235, 109 A.C.W.S. (3d) 880 (C.A.); McDonald v. Hoopp Realty Inc. (2014), 123 O.R. (3d) 49, [2014] O.J. No. 4876, 2014 ONSC 6089 (S.C.J.); McNeil v. Van Gulik, [2019] O.J. No. 5137, 2019 ONSC 5816 (S.C.J.); Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital (2009), 97 O.R. (3d) 321, [2009] O.J. No. 4071, 2009 ONCA 697, 255 O.A.C. 174, 76 C.P.C. (6th) 238, 181 A.C.W.S. (3d) 221; O'Sullivan v. Hamilton Health Sciences Corp., [2011] O.J. No. 3161, 2011 ONCA 507; Ratnakumar v. Dickie's No Frills, [2015] O.J. No. 1548, 2015 ONSC 1866 (Div. Ct.); Simmonds v. G&G Pool Services and Renovation Ltd. (2018), 143 O.R. (3d) 239, [2018] O.J. No. 5098, 2018 ONCA 772; Skribans v. Nowek, [2012] O.J. No. 339, 2012 ONSC 532, 24 C.P.C. (7th) 410, 211 A.C.W.S. (3d) 45 (Master); Spirito Estate v. Trillium Health Centre, [2008] O.J. No. 4524, 2008 ONCA 762, 69 C.P.C. (6th) 36, 246 O.A.C. 150, 302 D.L.R. (4th) 654, 171 A.C.W.S. (3d) 189; Stechyshyn v. Domljanovic (2015), 129 O.R. (3d) 236, [2015] O.J. No. 6633, 2015 ONCA 889; Stekel v. Toyota Canada Inc. (2011), 107 O.R. (3d) 431, [2011] O.J. No. 4885, 2011 ONSC 6507 (S.C.J.); Suarez v. Minto Developments Inc., 2009 CarswellOnt 8146 (Master); Urie v. Peterborough Regional Health Centre, [2010] O.J. No. 3962, 2010 ONSC 4226, 193 A.C.W.S. (3d) 22 (S.C.J.) [page131]

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.], 6, 7 [as am.], 21, (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 3.02, 5.04, (2), 14.08

MOTION to substitute names of defendants in a statement of claim.

Brian A. Pickard, for plaintiff, moving party.

Stephen W. Ronan, for all physicians except Dr. Dhaliwal.

[1] MACLEOD J.: — The plaintiff brings a motion to substitute the names of several physicians for the name "Dr. Doe" in the title of the proceedings. This is the "misnomer" motion referred to in a previous decision.[^1] It is also a motion that has been anticipated for a considerable period of time and has been the subject of discussion at a number of case conferences.

[2] The device of naming defendants by a pseudonym or a placeholder is an accepted practice when a plaintiff does not know the identity of all of the defendants and wishes to protect against the expiry of a limitation period.[^2] This motion will determine whether or not the device has been employed effectively. Simply put, the court must answer two questions. First, does the pleading adequately point the "litigation finger" at all of the physicians the plaintiff now wishes to substitute as parties? Second, are there circumstances which would make such a substitution order unjust?[^3]

[3] For the reasons that follow, I have concluded that the motion should be granted in respect of most, but not all, of the proposed defendants.

Background

[4] The facts are set out in greater detail in my earlier decision referred to in the introduction. In brief, the plaintiff is a physician who had a significant history of intestinal pain. She underwent [page132] an ERCP procedure during which she suffered a perforated duodenum. The plaintiff was discharged from the clinic without the perforation having been diagnosed or detected. Subsequently, when the plaintiff was admitted to emergency, she suffered severe life-threatening infection and an adverse reaction to medication. The plaintiff entered a coma followed by a lengthy period of hospitalization. She was left with a permanent ostomy and other disabilities. She alleges these events were the result of medical negligence and that as a consequence she is disabled and unable to pursue her career.

[5] In the original statement of claim Dr. Dhaliwal is identified as the physician who performed the ERCP procedure and "negligently perforated her duodenum". Dr. Doe is identified as another physician who "treated Ingelise in the course of her stay at the hospital".

[6] Besides alleged negligence in perforating the duodenum, the statement of claim contains a series of allegations which include the following:

(a) Despite the fact that she continued to present with an acute abdomen post-operation, the plaintiff was discharged from the hospital and informed that she could go home. (para. 10)

(b) When she went to the emergency department, she was not seen by a physician for several hours. (para. 11)

(c) While in the emergency department and on the surgical floor the plaintiff received repeat doses of Dilaudid to which she was intolerant. She became increasingly delirious and later unresponsive. (para. 12)

(d) Despite continuing to deteriorate and becoming increasingly unresponsive following her admission to the surgical floor and exhibiting symptoms of declining respiratory function, there was a delay in the intervention of the emergency response team and a delay in diagnosing her decreased level of consciousness and coma. Her airway was not protected, and she suffered cerebral hypoxia. (para. 13)

(e) She developed a widespread life-threatening infection from the initial contamination of her abdomen. (para. 14)

(f) Notwithstanding her increasingly critical condition and the failure of remedial measures, doctors continued with conservative treatment and management of the infection. (para. 15) [page133]

[7] Specific acts of negligence against physicians are described in paras. 24 and 27. Paragraph 24 contains allegations against Dr. Dhaliwal including negligent performance of the ERCP, failure to check on the patient's post-operative condition and failure to further investigate when advised the patient was in pain. Paragraph 27 contains allegations against "other doctors who treated her during her course in the hospital". There then follow 16 subparas. with specific allegations. Included in those are the following:

(a) Failure to communicate and consult with Dr. Dhaliwal.

(b) Failure to investigate the cause of post-operative pain.

(c) Failure to read the imaging correctly.

(d) Failure to consider other diagnostic imaging.

(e) Discharging the patient when the cause of the pain had not been identified.

(f) Failure to transfer the clinical record to the emergency department.

(g) Ordering contra-indicated medication.

(h) Failure to investigate the cause of delirium and unresponsiveness and to recognize the adverse reaction to medication.

(i) Failure to involve the emergency response team when the plaintiff began slipping into a coma.

(j) Failure to properly manage the abdominal infection and to take measures to prevent it spreading.

(k) Failure to exercise reasonable care and skill in the treatment and management of the perforated bowel.

[8] The action was defended by Dr. Dhaliwal and by the hospital. At some point it became apparent that Dr. Dhaliwal did not perform the ERCP procedure himself although he was the supervising physician. The procedure was apparently carried out by Dr. Fournier who was a gastroenterology fellow at the time. The discharge from the clinic was apparently signed by Dr. Kelly who was a gastroenterology specialist.

[9] The names of other doctors who were involved with the care of the plaintiff have also been determined. Included in these are Dr. Yelle, who was the general surgeon responsible for the surgical department during the time the plaintiff was initially admitted, Dr. Gauthier who was completing a fellowship in surgery and Dr. Morellato who was a resident. Dr. Hebert was an emergency [page134] physician responsible for the care of the plaintiff in the emergency department until he requested involvement by the department of general surgery.

[10] Dr. Sullivan and Dr. Mann (now Alisic) are no longer targets of this motion as the plaintiff has indicated she will not be pursuing a claim against those doctors.

[11] Certain additional facts may be relevant to my analysis. As described in the summary judgment motion, the plaintiff changed counsel. On May 24, 2016 she issued a separate statement of claim against Drs. Fournier, Kelly, Morellato, Yelle, Sullivan, Mann (Alisic) and Gauthier. On December 13, 2016, after receiving an expert report, she issued a claim against Dr. Hebert and another Dr. Doe. On February 14, 2017, she issued a claim against her original lawyer because by that time the named defendants had taken the position all of these actions were statute-barred. Finally, on May 11, 2017, the plaintiff amended the statement of claim in the original action to make specific allegations against certain of the named physicians although she did not at that time bring this misnomer motion or seek leave to amend the title of the proceedings.

[12] It is relevant that all of the named physicians were involved with the care of the plaintiff at the Ottawa Hospital, all are covered by the CMPA (a mutual defence association which acts like an insurer) and all but Dr. Dhaliwal are represented by the same legal counsel.[^4] All of these actions have been case managed as a group first by Justice Hackland and then by me. There has never been any secret that a misnomer motion would be brought. In fact, the failure to bring this motion sooner has been the subject of some complaint by the defendants.

[13] As reviewed at the time of the summary judgment motion, the defendants believe it is unfair that the plaintiff has launched multiple lawsuits relying on discoverability while at the same time keeping alive the prospect of the misnomer motion. They regard the plaintiff's efforts (supported by LawPro repair counsel) to avoid the limitation defence as illegitimate.

[14] I have already ruled that issuing additional claims in case the misnomer motion was unsuccessful was not an abuse of process.[^5] I will comment further on the delay in bringing the misnomer motion momentarily. At this point I will simply observe that any unfairness arising from the multiple lawsuits may be dealt [page135] with by consolidation, trial together, costs or other remedies. Even if the manner in which this litigation has been pursued is characterized as abusive, the response should be proportionate and it does not follow that loss of the right to litigate is a proportionate remedy.[^6] As for the limitation issue, if the use of a John Doe pseudonym was done properly then this action was brought within the limitation period. If it was not, then the plaintiff may or may not be able to rely upon discoverability to save the subsequent litigation.[^7]

The Law

[15] Although a passage from the English decision of Davies v. Elsby Brothers Ltd.[^8] is frequently cited in misnomer cases, the law of Ontario has evolved since that case was decided.[^9] In Davies, the test was described in objective terms as whether a reasonable person looking at the statement of claim would realize that the allegation was directed at him or her but the Davies test also stated that the target of the allegation must be evident without the need to make further inquiries. The law in Ontario is broader than this.

[16] A distinction should probably be drawn between true cases of misnomer in which the name of a party is misspelled or the wrong name is used inadvertently and a case such as this in which a pseudonym is purposefully used. Here I am concerned with the latter. The power to correct either type of misnomer is governed by rule 5.04(2) of the Rules of Civil Procedure[^10] which provides "[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment". Like all of our rules, rule 5.04 is subject to the general interpretive mandate in rule 1.04. That rule provides for liberal construction of the rules to secure the "just, most expeditious and least expensive determination of every civil proceeding on its merits" and also incorporates the principle of proportionality. [page136]

[17] It is useful to remember the statutory context. In Ontario the law of limitations was reformed in 2002. The legislation now provides for a standardized and relatively short period of time to commence a civil action. In simplest terms, subject to certain exceptions, it is two years from the date on which the event occurred unless the plaintiff can demonstrate that the claim was not "discovered" until a later date.[^11] The Act also abolished the power to add a party after the expiry of the limitation period even in special circumstances but specifically preserved the right to correct a misnomer.[^12]

[18] Plaintiffs are often faced with a situation in which they cannot ascertain the precise identity of each of the defendants who may have been negligent. This problem is particularly acute in medical malpractice cases because there may be a myriad of doctors, nurses and other medical staff involved in the treatment in question and because the plaintiff may not have access to the information necessary to identify those individuals at the point when the limitation period will presumptively expire. Even where, as here, the plaintiff has obtained a copy of the medical records, there may be errors or omissions in the records. Add to this the complexity of medical staffing which involve combinations of employees, independent physicians, residents, students and different types of supervision and responsibility and the dilemma is apparent. While vicarious liability exists for hospitals and hospital employees, the situation is much more difficult in relation to independent physicians. This is the reason that pseudonyms are frequently employed. When properly utilized a pseudonym may be corrected under s. 21(2) of the Act.[^13]

[19] It is also useful to recall that the limitations statute only regulates the date on which the action is commenced and not when the defendant is served. A statement of claim must ordinarily be served within six months but that time can be extended.[^14] Where there is a delay in locating or identifying a defendant, it is possible for a statement of claim to be served some time after the limitation period has expired. Providing the statement of claim asserts a cause of action against a defendant within the limitation period the claim is valid. It is in this context that the use of pseudonyms must be understood. [page137]

[20] While the use of a pseudonym is an accepted practice, this does not mean that simply naming Dr. Doe and making vague allegations will be sufficient to involve the entire medical staff of the hospital. The pseudonym must be used appropriately. That is to say it cannot simply be a placeholder in case a cause of action is subsequently discovered against somebody else. The intention to sue the unidentified physician and the basis of the claim against that physician must be apparent from the pleading. Even if that is the case, the rule provides that the relief should not be granted if it will result in significant prejudice. Furthermore, the court has a residual discretion not to grant the relief if it would be unjust to do so.[^15]

[21] As with most discretionary remedies, results are fact driven and case specific. Despite, this, a number of principles may be derived from the jurisprudence. It is useful to summarize these as follows:

(a) When a plaintiff does not know precisely who to name as defendants it is permissible to name unidentified defendants by way of a pseudonym. It would be better to bring transparency to this practice by naming them as "certain unidentified physicians collectively referred to as Dr. Doe" but the use of "Dr. Doe" or "Dr. X" is a practice that the courts have accepted as appropriate shorthand.[^16]

(b) It is not necessary to name multiple Dr. Doe's and to precisely guess how many defendants to implicate. Providing the claim is drafted in a manner to identify what allegations are made against individuals filling specific roles, the "litigation finger is divisible" and may point at more than one unknown defendant.[^17]

(c) Unlike a claim relying on discoverability to postpone the running of the limitation period, use of a pseudonym and subsequent correction of a misnomer is not subject to a due [page138] diligence requirement and will not be defeated by mere delay.[^18]

(d) Use of a pseudonym does not give carte blanche to get around the limitation period. Although the Act does not narrow the common law understanding of misnomer and preserves the power of the court to correct it, it does prohibit addition of parties if the limitation period has expired. The distinction is critical. It is the difference between correcting the claim to properly name a party already included in the action and adding a new party.[^19]

(e) To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation.[^20] The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.[^21]

(f) Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period.[^22] The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.[^23] [page139]

(g) Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer.[^24] Delay is also relevant to the issue of prejudice and to the exercise of discretion.[^25]

(h) Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions.[^26] In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.

(i) It is not useful for misnomer motions to be decided based on technicalities or vagaries of pleading. The object of pleading analysis should not be one of looking for traps, tricks or loopholes. We should not be engaged in the legal equivalent of "whack a mole" or "gotcha". Rather, the question in every case should be whether it is reasonable and just to allow the pleading amendment and whether it is permitted by the governing legislation.

Analysis

[22] Reading the statement of claim, there can be no doubt that the plaintiff was asserting negligence on the part of the physician who performed the ERCP and perforated her duodenum, on the part of the physician who failed to diagnose the perforated bowel and on behalf of the physician who discharged her despite her complaints of pain. It now appears that each of these acts or omissions were the acts of three separate doctors, Dr. Dhaliwal, Dr. Fournier and Dr. Kelly. In my view, it would be abundantly clear to a properly informed defendant that he or she was the person responsible for those three steps. It would take a considerable amount of wilful blindness not to recognize that the claim is [page140] targeted against the individuals responsible for these steps whoever they may be.

[23] Each of the proposed defendants swore affidavits stating that they did not know they were the intended defendants and citing paragraphs of the claim which they say could not refer to them. Little weight can be attached to these affidavits because besides being bald and self-serving, they omit to mention paragraphs in the claim that clearly relate to the responsibilities undertaken by those doctors and only those doctors.

[24] In addition, there are admissions made during cross-examination which contradict the blanket assertions in the affidavits. Dr. Fournier admits that it was he who performed the ERCP procedure, ordered and reviewed an abdominal x-ray and prescribed Dilaudid. At Q. 58 of the transcript he acknowledges that by reading the statement of claim he can identify that he was one of the doctors referred to in the document. Dr. Kelly admits that she was on call the evening in question and it was she who signed the discharge from the clinic. Although it appears she had not actually seen the original statement of claim until the cross-examination, under cross-examination Dr. Kelly admitted that she could read that claims were made against physicians other than Dr. Dhaliwal and she would have known she was involved in discharging the plaintiff. Of course, by the time of the cross-examination, Dr. Fournier and Dr. Kelly were also aware that they were mentioned by name in the amended claim.

[25] The defendants argue that the original claim should be ignored and only the amended claim should be before the court. They argue that since the plaintiff chose to amend the claim to name Dr. Fournier and Dr. Kelly in certain paragraphs but did so without bringing this motion and adding their names to the title of the proceedings, it would be unreasonable to assume that they remained in the category of unidentified physicians known as "Dr. Doe". I do not accept this argument.

[26] There is no evidence that anyone was misled by the pleading amendments. By the time the amendments were made there had already been separate claims launched against these and other physicians, counsel had requested joint case management and the misnomer motion was firmly on the radar. In fact, there was a case conference held at the time the amendments were made setting out a timetable for the misnomer motion. I am not privy to why the misnomer motion did not proceed as scheduled but I am aware that the intervention motion and summary judgment motions were argued instead. The point is that the defendants have been well aware of the plaintiff's intention to add them as parties to this action or to proceed with the parallel actions in [page141] which the plaintiffs rely upon discoverability. The amendment of the pleading should not have lulled anyone into a false sense of security.

[27] I conclude that with respect to Drs. Fournier and Kelly the intention to sue the physicians who performed the roles that each of them performed was evident in the original claim and was in no way obliterated by the amended claim. There is no prejudice to them in amending the original action to substitute their names for "Dr. Doe" in the title of the proceedings. Nor is there a good reason to refuse to exercise discretion.

[28] As discussed earlier in these reasons, I have previously held that taking various parallel prophylactic steps to avoid the application of the Limitations Act was not an abuse of process or in any event it was not worthy of an extreme sanction such as a stay of proceedings. This is not to say that the way in which the plaintiff has proceeded should be encouraged, condoned or promoted. In my view, a better approach would have been to bring a combined motion to add the additional parties based on misnomer or discoverability or both.[^27]

[29] In this case of course, the actions are case managed and the separation of the motions was to some degree condoned by the court but in any event the failure to proceed in the optimum way does not create prejudice that would justify denying relief. There is no evidence that anyone who is now a proposed defendant (and who are all defendants in the parallel actions) is prejudiced by being added to this action. The only prejudice is the possible loss of a limitation defence and that in itself is not a consideration on a misnomer motion. It is the objective of such a motion.

[30] In summary, I am of the view that Drs. Fournier and Kelly were sufficiently identified in the original statement of claim that it is fair and reasonable to amend the claim to name them as parties under the doctrine of misnomer.

[31] I turn now to consider the positions of Dr. Yelle, Dr. Gauthier, Dr. Morellato and Dr. Hebert. As mentioned earlier, Dr. Yelle was a general surgeon, Dr. Gauthier was a surgical fellow and Dr. Morellato was a resident in the surgical department. Dr. Hebert was the chief physician in the emergency department. [page142]

[32] I have summarized the allegations in the claim earlier in these reasons. The pleading must be read as a whole and as generously as possible. The normal rules of pleading provide that a pleading is not invalid simply because it lacks particularity and some allowance must be made for the limited amount of information available at the time a claim is drafted. When it comes to misnomer, however, it is not sufficient to make vague general allegations. As discussed above, it must be clear from the document what acts or omissions are alleged. Someone reading the document and knowing that he or she was the person responsible for that procedure should be able to identify himself or herself as the person who is alleged to be at fault.

[33] The plaintiff alleges that she was given repeat doses of Dilaudid despite it being contraindicated. She alleges that the medical team failed to recognize the seriousness of her condition as she slid into a coma and failed to involve the emergency response team. She alleges failure to investigate the cause of delirium and unresponsiveness and to recognize the adverse reaction to medication. She alleges delay in treatment and inappropriate continuation of conservative measures as her condition deteriorated. She alleges failure to properly manage the abdominal infection and to take measures to prevent it spreading.

[34] The question is whether these allegations are sufficiently specific to any of the doctors in the surgical department or are, as suggested in the responding affidavits, "too generic" for the defendant to recognize that it was referring to him.

[35] On his cross-examination, Dr. Yelle denied prescribing Dilaudid but he acknowledged that the plaintiff received Dilaudid while under his care. He acknowledged that he ordered antibiotics and he acknowledged a discussion with Dr. Dhaliwal. He was the physician with responsibility for the department at the time in question.

[36] Dr. Gauthier acknowledged that he was the surgeon on call, having reviewed the plaintiff's chart, that he was aware of the plaintiff's delirium and decreased consciousness, that he directed there be a CT scan. He also acknowledged that the allegation "they failed to properly investigate the cause of the patient's delirium and unresponsiveness" or to consider an adverse response to medication could refer to him. While he asserted that the allegation of failing to take measures to prevent the spread of infection could not refer to him because he "did not fail to take any measures that would be reasonable", the question is not whether the allegation is true but to whom it is directed. Dr. Gauthier's response indicates that this allegation would capture one of the roles he played. [page143]

[37] Dr. Morellato acknowledged that he was the junior resident involved with the care of the plaintiff leading up to her second surgery and that he was involved in monitoring the patient on a daily basis. He indicated that he had primary responsibility for writing all notes and following up on all tests. He indicated that all treatment and diagnostic decisions would have been made by the attending surgeon, Dr. Yelle but he reviewed the test results, noted her symptomology and was aware of her atypical symptomology.

[38] I am sure it is understood but this motion is not concerned with whether or not the plaintiff can prove negligence or medical malpractice. Sometimes unanticipated complications occur despite the best of care and in other cases known risks of surgical procedures materialize. The only issue for me to decide is whether the plaintiff has adequately drafted the statement of claim so as to capture the involvement of these physicians.

[39] I am satisfied that the description of Dr. Doe in para. 5 of the claim as a doctor who treated the plaintiff in the course of her stay at the hospital, combined with the allegations in para. 27 that "other doctors who treated her during her course in the hospital were negligent", was sufficient to put all members of the medical team who handled her care on notice of a possible claim. The specific allegations of negligence concerning medication errors, failure to intubate, failure to take aggressive measures when the plaintiff was slipping into a coma, failure to exercise reasonable care in the management of the infection and failure to take measures to stop the spread of infection, are sufficient to point the litigation finger at these three members of the surgical team.

[40] Dr. Hebert is in a different situation. In the first place there is no specific allegation in the original statement of claim against the emergency room physician. The only specific allegations about care in the emergency department are directed at the nursing staff and are focused on delay in assessment and treatment. In the second place in the separate action against Dr. Hebert, the allegation is for delay in administration of antibiotics and the plaintiff has deposed that this only became apparent when she obtained expert opinions in late 2016.

[41] While it is not necessarily contradictory to rely on both misnomer and discoverability and it is possible to discover additional acts of negligence against a defendant already named in a pleading, there is nothing in this pleading that would directly point the litigation finger at the emergency room physician. [page144]

Conclusion

[42] In conclusion, leave will be granted to add Drs. Fournier, Kelly, Yelle, Gauthier and Morellato as defendants in place of "Dr. Doe". Leave to add Dr. Hebert is denied.

[43] The parties will have to consider whether the later action should be stayed or consolidated with this action. I have not reviewed the later pleading to determine whether or not all of the allegations in that pleading are captured by the causes of action contained in this action or whether there are new causes of action which will still depend on discoverability and this point was not argued.

[44] The actions will continue to be case managed with a view to trial together in any event.

Costs

[45] There are various considerations that should go into the question of costs. As always, I invite counsel to reach agreement on a costs disposition, but in the event they cannot do so, a date should be arranged to hear submissions.

[46] A case conference will be required in any event. That may proceed by telephone unless counsel wish to appear in person.

Motion allowed in part.

Notes

[^1]: (2018), 143 O.R. (3d) 501, [2018] O.J. No. 5606, 2018 ONSC 6212 (S.C.J.). That was a summary judgment motion brought in related actions.

[^2]: Spirito Estate v. Trillium Health Centre, [2008] O.J. No. 4524, 2008 ONCA 762, 302 D.L.R. (4th) 654, at paras. 10 and 15.

[^3]: Correction of a misnomer is a discretionary remedy which must be in the interests of justice. See Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital (2009), 97 O.R. (3d) 321, [2009] O.J. No. 4071, 2009 ONCA 697.

[^4]: See Bertolli v. Toronto (City), [2017] O.J. No. 6822, 2017 ONSC 7534 (S.C.J.), affd [2018] O.J. No. 3456, 2018 ONCA 601.

[^5]: See summary judgment motion, supra, at note 1, para. 30.

[^6]: See Abarca v. Vargas (2015), 123 O.R. (3d) 561, [2015] O.J. No. 37, 2015 ONCA 4, at para. 29.

[^7]: Summary judgment motion at paras. 66-68.

[^8]: [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.), p. 676 All E.R.

[^9]: See Ormerod, note 3, supra.

[^10]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[^11]: Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4-7 discussed in the summary judgment motion, note 1, paras. 17-20.

[^12]: Section 21 of the Act.

[^13]: See Spirito Estate v. Trillium Health Centre, supra.

[^14]: Rules of Civil Procedure, as amended, rules 14.08 and 3.02.

[^15]: See Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.). It should be noted that this decision predates the statutory amendments so insofar as there is a reference to "special circumstances" it must be read with caution. The point to be made, however, is the residual discretion to refuse an amendment under rule 5.04(2) is not limited to cases of prejudice. See para. 30.

[^16]: Spirito, supra; Ormerod, supra.

[^17]: See Suarez v. Minto Developments Inc., 2009 CarswellOnt 8146 (Master), Stekel v. Toyota Canada Inc. (2011), 107 O.R. (3d) 431, [2011] O.J. No. 4885, 2011 ONSC 6507 (S.C.J.), at para. 35.

[^18]: See Stechyshyn v. Domljanovic (2015), 129 O.R. (3d) 236, [2015] O.J. No. 6633, 2015 ONCA 889, paras. 1 and 19 effectively overruling Urie v. Peterborough Regional Health Centre, [2010] O.J. No. 3962, 2010 ONSC 4226 (S.C.J.), cited by the defendants. See also Loblaw Properties Ltd. v. Turner Fleischer Architects Inc., [2018] O.J. No. 1059, 2018 ONSC 1376 (S.C.J.), at paras. 32-34; and McDonald v. Hoopp Realty Inc. (2014), 123 O.R. (3d) 49, [2014] O.J. No. 4876, 2014 ONSC 6089 (S.C.J.), at para. 19.

[^19]: Spirito, supra, in particular paras. 11, 12, 16 and 17.

[^20]: See Hassan v. Dunraj, [2014] O.J. No. 6119, 2014 ONSC 7374 (S.C.J.).

[^21]: Bertolli, supra, at note 4.

[^22]: Chiarelli v. Wiens, and see Bearss v. Scobie, [2013] O.J. No. 4308, 2013 ONSC 5910 (Master), at paras. 44 and 45.

[^23]: Essar Algoma Steel Inc. v. Liebherr (Canada) Co., [2011] O.J. No. 1311, 2011 ONSC 1688 (Div. Ct.), at para. 25.

[^24]: See Simmonds v. G&G Pool Services and Renovation Ltd. (2018), 143 O.R. (3d) 239, [2018] O.J. No. 5098, 2018 ONCA 772.

[^25]: See O'Sullivan v. Hamilton Health Sciences Corp., [2011] O.J. No. 3161, 2011 ONCA 507.

[^26]: Ormerod, supra, at para. 14; and see Ratnakumar v. Dickie's No Frills, [2015] O.J. No. 1548, 2015 ONSC 1866 (Div. Ct.).

[^27]: See, for example, Skribans v. Nowek, [2012] O.J. No. 339, 2012 ONSC 532 (Master); First Gulf Bank v. Collavino Inc., [2013] O.J. No. 3278, 2013 ONSC 4630 (S.C.J.); and Martin v. John Doe, [2017] O.J. No. 6012, 2017 ONSC 6955 (Master). See, also, McNeil v. Van Gulik, [2019] O.J. No. 5137, 2019 ONSC 5816 (S.C.J.) in which there was a combined motion for misnomer (in one action) and summary judgment (in another).

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