Court File and Parties

COURT FILE NO.: CV-19-00000369-0000 DATE: March 21, 2022 SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA SPRY Plaintiff – and – SOUTHLAKE REGIONAL HEALTH CENTRE, PETER KO AND DR. IAN MAK Defendants

Counsel: J. Evans, for the Plaintiff S. Bittman, for the proposed Defendant Dr. James Shin J. Mank, for the Defendant Dr. Ian Mak No one appearing for the Defendants Southlake Regional Health Centre and Peter Ko

HEARD: January 18, 2022

Reasons for Decision

[1] This is a medical malpractice claim arising out of the plaintiff’s treatment at Southlake Regional Health Centre (“Southlake”) on February 16, 2018. She started a lawsuit against Southlake, Peter Ko and Dr. Ian Mak on October 10, 2019.

[2] This motion is to add Dr. James Shin as a defendant. The plaintiff relies primarily on the doctrine of misnomer. Alternatively, she submits that Dr. Shin can be added because this motion was brought before the expiry of the limitation period.

[3] Dr. Shin opposes the motion. He contends that this is not a case of misnomer and, even it was, I should exercise my discretion and dismiss the motion. Further, any claim against Dr. Shin is statute-barred.

[4] The present defendants take no position on the motion.

The evidence on the motion

[5] The facts are relatively uncomplicated. The following summary is drawn from the affidavits of the plaintiff and her lawyer Jan Marin; their cross examinations; the examinations for discovery of the plaintiff and Dr. Mak; and medical records. Dr. Shin did not deliver a responding affidavit.

[6] The plaintiff, Lisa Spry, is 42 years old. She attended Southlake the evening of February 16, 2018, complaining of pain in her right arm.

[7] Dr. Mak is identified as the attending physician in the Emergency Record. According to this document, Ms. Spry arrived at 6:37 p.m.

[8] In the statement of claim, Ms. Spry alleges that Dr. Mak was the emergency physician responsible for her care when she was at Southlake along with Mr. Ko, a physician assistant.

[9] The statement of claim includes a detailed chronology of Ms. Spry’s treatment in the emergency department which I reproduce verbatim here:

1. Lisa presented at Southlake on February 16, 2018 with the complaint sudden onset right arm pain.
2. She was triaged at 18:29 hours by an ER nurse.
3. Lisa complained that her right hand was cold and numb.
4. The triage nurse inaccurately noted that Lisa “c/o both hand cold and numb”.
5. Lisa had taken Percocet and Naproxen one hour prior to coming to the ER.
6. Lisa’s vital signs at triage were: (a) temperature 35.7°C (b) pulse 99 bpm (c) respiratory rate 18 breaths per minute (d) blood pressure 131/78 (e) oxygen saturation 97% on room air.
7. Lisa was seen by the Physician Assistant, Ko, at 19:00 hours.
8. Dr. Mak was the ER physician on duty at the time.
9. Dr. Mak was present at 19:05 hours.
10. Ko's ER chart note entry states that Lisa complained of atraumatic right upper extremity pain for two hours, and numbness radiating into the hand. He also noted that Lisa had taken a Percocet and Robaxacet.
11. There was no history of chest pain or shortness of breath.
12. On examination of the right upper extremity there was no swelling or redness.
13. Lisa had difficulty with dorsiflexion and abduction.
14. X-rays of the C-spine were ordered as well as an ultrasound of the right arm.
15. At 20:14 hours, a venous Doppler ultrasound right arm was performed. The radiologist reported that examination of the deep vein system in the right upper arm from the antecubital fossa to the subclavian vein at the clavicle demonstrated no evidence of deep vein thrombosis.
16. Dr. Mak ordered that Lisa receive Toradol 10 mg intramuscularly and Dilaudid 2 mg orally.
17. Dr. Mak made a chart entry at 22:04 hours. The note indicated: (a) Lisa’s right arm pain started 24 hours prior. (b) There was no history of trauma or fever. (c) There was a normal range of motion (d) Normal pulses and normal cap refill. (e) There was also evidence of normal strength in the arm
18. It was noted at 21:28 that Lisa’s pain was worse.
19. Dr. Mak noted that the neck x-rays were normal and ultrasound of the right arm was normal.
20. Dr. Mak's assessment was possible neuropathic pain.
21. At discharge from the ER at 22:15 hours, Lisa was given a prescription for Dilaudid 1 mg x10 tablets and a thumb spica splint for the right hand. The provisional diagnosis was "thumb pain NYD".
22. Dr. Mak completed a request/referral for a neurology consultation with respect to right hand/arm pain Neuropathy.
23. The ER chart was signed by Dr. Mak and by Ko, the physician assistant.

[10] Ms. Spry continued to experience pain in her arm after leaving Southlake. She went to the emergency department at the Markham Stouffville Hospital at around 1:45 a.m. There, she was diagnosed with acute limb ischemia and transferred to Saint Michael's Hospital where she underwent surgery that morning. She has been left with a permanent, serious injury to her right hand and arm.

[11] Ms. Spry contacted a law firm, Diamond and Diamond, on August 14, 2018. Following a telephone interview, they referred her to another firm, Gluckstein Personal Injury Lawyers (“Gluckstein”), the same day.

[12] She met with a senior law clerk at that firm, Roger Shoreman, two days later. Over the next five months, Gluckstein obtained all the hospital records and received an initial verbal opinion from an expert, Dr. Ted Brankston. The lawyer with carriage of the file was Jordan Assaraf.

[13] In February 2019, Mr. Shoreman, Mr. Assaraf and trial counsel retained by Gluckstein, Ryan Breedon, discussed the case with Dr. Brankston. The next month he delivered a written opinion called a “preliminary commentary report”.

[14] In August 2019, Mr. Assaraf transferred carriage of the file to his colleague Ms. Marin. She got up to speed on it and prepared a statement of claim which was reviewed by Mr. Breedon and Ms. Spry before it was issued on October 10, 2019. It was served on Dr. Mak and Southlake later that month and on Mr. Ko in November.

[15] The statement of claim contains multifarious allegations of negligence. As against the healthcare professionals, they boil down to a negligent failure to properly assess and treat Ms. Spry at Southlake.

[16] Southlake and Mr. Ko delivered a statement of defence and crossclaim in early February, 2020. This pleading also contains a chronology of Ms. Spry’s treatment at the hospital. It identifies Dr. Mak as the physician responsible for her care while she was there. Paragraph 11 states:

At approximately 22:04, Ms. Spry was reassessed by Dr. Mak, who provided a prescription for pain medication, a splint, a referral for a neurology consultation. Ms. Spry was discharged pursuant to the orders of Dr. Mak with instructions to return to the emergency department if she experienced increased pain.

[17] Dr. Mak delivered his statement of defence and crossclaim in late February, after the second anniversary of the date of Ms. Spry’s attendance at Southlake. Paragraph 8 of this pleading avers: “At around 21:30, Dr. Mak’s shift ended and Ms. Spry’s care was assumed by another emergency physician.”

[18] The statement of defence does not identify who the other physician was. Dr. Mak did not issue a third party claim against this doctor.

[19] Ms. Spry and Mr. Ko were examined for discovery on, respectively, September 29 and 30, 2020. Dr. Mak was examined December 9, 2020.

[20] Mr. Breedon questioned Dr. Mak. Based on the transcript, it appears Mr. Breedon, prodded by Dr. Mak, experienced a eureka moment during his review of the emergency department records with the doctor. There is this exchange:

Q. Just so the record is clear, we’re looking at a document that’s titled “Physician Progress and Order Record,” it’s Page 11 of the PDF of the hospital’s productions. So there is a note ---

MR. KALOGIROS: Before you ask your question, do you mind if I just for the record, posterity’s sake, I think we all know what we’re looking at, but I wouldn’t mind putting our Bates numbers on the record.

MR. BREEDON: Yes, yes, sure.

MR. KALOGIROS: The first record we were looking at, which is the ER, the emergency record face sheet, is PLSPR-000001 in our Bates numbering. And the record we’re looking at right now, which is the continuation record, as it’s been described, is PLSPR-000004. Thanks, Ryan.

BY MR. BREEDON:

Q. Yes, no problem. Doctor, in more complicated cases we get our act together and have a production set so we don’t have to do this, but I guess we thought there’s only ten pages of records so it wasn’t necessary here, and that turns to be mistaken. Looking at the Progress and Order Record, the handwritten note on this page, are they from you?

A. No

Q. These are not your notes?

A. These are not my notes.

Q. Do you know whose notes there are?

A. I believe they are a colleague of mine.

Q. Actually, if we scroll down to the bottom of this page, they’re signed, it looks like they may be signed “Shin,” do you see that?

A. Yes.

Q. Who is Mr. or Dr. Shin?

A. Dr. Shin is a colleague of mine.

Q. Another emergency room physician?

A. Yes, he’s an emergency room physician at Southlake.

Q. Can you help me with how it is that Dr. Shin seems to have become involved in this patient’s care?

A. So, I don’t recall in this particular case, but often there are multiple physicians involved in a patient’s care. If, for instance, one physician were to be at the end of their shift, they would transfer care to another colleague that is recently arrived, and that colleague would then look in on the patient and do the final assessment and discharge.

Q. All right. When did your shift end?

A. I have no recollection of this case.

[21] Mr. Breedon and Ms. Marin are experienced medical negligence lawyers. Dr. Brankston is a long time general practitioner who has given expert opinion in many cases. [1] All three believed, at least up to the examination for discovery of Dr. Mak, that he and Mr. Ko were responsible for Ms. Spry’s care throughout the time she was at Southlake.

Analysis

[22] Rule 26.01 provides that a court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Rule 5.04(2) states a court may add, delete or substitute a party on the same basis. Under the latter rule, the title of a proceeding is corrected; no changes to the pleading have to be made.

Is this a case of misnomer?

[23] In St. Loy-English v. The Ottawa Hospital et al., 2019 ONSC 6075, MacLeod, R.S.J. outlined the applicable legal principles at para. 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.

(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.

(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 diligence requirement and will not be defeated by mere delay.

(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.

(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. 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.

(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. 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.

(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. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

(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. 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.

[24] Doctor Shin submits that this is not a case of misnomer but a transparent attempt to add another party after the expiry of the limitation period. He emphasizes that I should interpret the doctrine in a manner consistent with the policy behind limitation periods which is to bring finality and protection to litigants. The “litigating finger” test requires that the proposed defendant know from the pleaded allegations, not the material facts, that the accusatory digit is directed at them. A reasonable person would, from reading the statement of claim, conclude that Ms. Spry intended to sue only Dr. Mak and, to permit the addition of another defendant at this stage based on the same allegations would, according to Dr. Shin, “extinguish the discoverability doctrine.”

[25] The facts of this case are somewhat unusual. Two lawyers and a doctor with acknowledged expertise in the law of medical negligence concluded, after their review of the hospital records, that Dr. Mak was the sole physician responsible for the treatment of Ms. Spry at Southlake. Based on their statement of defence and crossclaim, so too did Mr. Ko and the hospital. Yet, if Dr. Mak’s evidence on his examination for discovery is true, they were wrong. [2] I find that, if it was an error, Dr. Shin would not suffer any non-compensable prejudice if he is added as a defendant at this stage of the action.

[26] Dr. Shin suggests that because Ms. Spry gave inconsistent information about the number of physicians who treated her and the slim documentary record (12 pages), a deliberate decision must have been made to sue only Dr. Mak. Alternatively, the failure to recognize that Dr. Shin was one of the attending physicians manifests “a profound lack of diligence in ascertaining the identities of any defendants”. I disagree. Ms. Spry and her lawyers, I find, intended to commence a lawsuit against all the healthcare professionals who were negligent in their treatment of her. They collected the records of all the hospitals where she received medical treatment and consulted an expert to assist them in identifying whether any healthcare professionals fell below the standard of care and, if so, who did. They concluded that only one physician, Dr. Mak, treated her in the emergency department at Southlake. There was no lack of diligence; if anything, the lawyers acted expeditiously as soon as Ms. Spry contacted them to secure the necessary records, consult an expert, commence a lawsuit and conduct examinations for discovery. The emergency department records cannot be described as pellucid. Why, for example, is it only Dr. Mak who is identified as the attending physician? Why is Dr. Shin on one roster of Southlake’s emergency department physicians and not on another? If it was a mistake to not name Dr. Shin as a defendant initially, I find it was unintentional, and understandable, in the circumstances.

[27] Although Dr. Shin did not file a responding affidavit, he asserts that he could not have reasonably identified himself in the statement of claim. In short, he would not know the “litigating finger” was pointing at him. As is apparent from the examination of Dr. Mak, he knew Dr. Shin was also involved in Ms. Spry’s care and I can reasonably infer from his statement of defence and crossclaim that his lawyers did as well. I find that Dr. Shin would know, from the combination of the pleaded material facts and allegations, that the intended targets of Ms. Spry’s claim were the physicians who treated her in the emergency department that evening, one of whom was him.

[28] I have the discretion to decline the addition of a party even in the case of misnomer: Mazzuca v. Silvercreek Pharmacy Ltd., 2001 ONCA 8620. There is no evidence of any prejudice to Dr. Shin if he is added as a defendant at this time. It is not an old case. The Canadian Medical Protective Association has been involved since the statement of claim was served on Dr. Mak. Both Ms. Spry and her lawyers have acted with reasonable diligence in advancing the litigation: she consulted a lawyer within about seven months of the alleged negligence, the statement of claim was issued a little over a year later and served promptly, pleadings were closed on the threshold of a global pandemic and, impressively, the examinations for discovery took place that same year. This motion was brought in a timely manner.

[29] In the event I am wrong, I will now consider the alternative basis for permitting the amendment.

If this is not a case of misnomer, is the claim against Dr. Shin statute-barred?

[30] Dr. Shin posits that the limitation period began to run on one of three dates: February 18, 2018 (when Ms. Spry went to Southlake), August 16, 2018 (when she gave her copy of the Southlake records to Gluckstein) or September 21, 2018 (when Gluckstein received the records directly from Southlake). Ms. Spry says the triggering event was the receipt of Dr. Mak’s statement of defence which disclosed that another, unidentified physician took over Ms. Spry’s care when he left the hospital at 9:30 p.m.

[31] A claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn: Grant Thornton LLP v. New Brunswick, 2021 SCC 31 at para. 42. The degree of knowledge must be more than “mere suspicion or speculation”: Grant Thornton at para, 46.

[32] S. 21(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B precludes the addition of a party to an existing proceeding after the expiry of the limitation period. S. 4 provides that a proceeding shall not be commenced after the second anniversary of the day the claim was discovered. S. 5 sets out when a legal claim is discovered. In explaining how a motions judge should approach this issue, van Rensburg, J.A. stated in Morrison v. Barzo, 2018 ONCA 979 at paras. 30-31:

Reasonable discoverability of a claim under s.5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence.

The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2). [Citations omitted]

[33] Most often, the discoverability inquiry focusses on the plaintiff’s knowledge of the existence of a potential legal claim, not the identity of the potential tortfeasor. It is not always an easy task in a medical malpractice claim to descry the negligent actor: Loy-English at para. 18. Material facts include not only the awareness of what went wrong and why but also who was responsible: Lawless v. Anderson, 2011 ONCA 102 at para. 30.

[34] Dr. Shin is sharply critical of Ms. Spry’s lawyers for failing to recognize that he, too, was involved in their client’s care. As I have pointed out, if that was a blunder, it was one that Dr. Brankston, Mr. Ko and Southlake also made. I have already commented on the supposed clarity of the records. I do not find any carelessness or lack of diligence on the part of Ms. Spry or her lawyers. The limitation period began to run when Dr. Mak delivered his statement of defence and crossclaim in February 2020, revealing that he left the hospital at 9:30 p.m. (which was not disclosed in the records) and another physician took over Ms. Spry’s care (which could have been easily divulged in the records but was not). The plaintiff has met her burden under s. 5 and this motion was brought before the expiry of the limitation period.

Disposition

[35] For these reasons, the motion is granted and leave is granted to amend the statement of claim as set out in Schedule A to the fresh as amended notice of motion.

[36] Costs were argued at the conclusion of the motion. Ms. Spry is seeking $16,000 inclusive of HST and disbursements. This was a hard-fought motion. The record, including case law, exceeded 3,000 pages. There were no circumstances which would cause me to depart from the usual rule that the successful party is entitled to costs on a partial indemnity basis. I find that $16,000 is a fair, reasonable and proportionate sum that is within the reasonable expectation of the parties. I order that Dr. Shin pay this amount to Ms. Spry within 30 days.

Date: March 21, 2022

Hurley, J.

Footnotes

[1] This was not specifically referred to in the evidence before me but a cursory search on reveals it: see, for example, Thornhill v. Chong, 2016 ONSC 6353 at paras. 158-59.

[2] Based on the record before me, I can conclude that Dr. Mak’s evidence on this issue is probably true but the action is still at an early stage and it remains to be seen if Dr. Shin will, under oath, agree that he took over the care of Ms. Spry.