This is the eighth article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.
The purpose of limitation statutes is to ensure that lawsuits are brought within a reasonable time. These laws are based on an understanding that an individual should not be subject to the threat of being sued over a particular matter indefinitely, and recognize that evidentiary problems in the form of lost documents or forgetful witnesses are more likely to arise as time goes by.¹
Most provinces and territories (including British Columbia) have two-year limitation periods for claims against doctors and hospitals. However, determining when the two-year period begins to run is an important feature of medical negligence claims, as it is now well established that a limitation period does not begin to run until a plaintiff discovers, or ought to have discovered, the facts underlying the cause of action.² This is to prevent situations where a plaintiff’s claim is barred before they became aware of it, which may occur, for instance, if there was a delay between the negligent treatment and its consequences.³
This article focuses on discoverability in medical negligence cases and what factors the courts have found to postpone the running of the limitation period.
Nature and Extent of Plaintiff’s Injuries
Discovery is typically triggered once a plaintiff has discovered that they have suffered some injury, regardless of the extent. However, the nature or type of injury may impact discoverability. Specifically, the courts have found that a plaintiff will not have discovered a claim if they have reason to believe the injuries were the result of an agreed-upon treatment plan.
In Borek v. Dr. Derek Stirling Hopkins, 2020 BCSC 304, the defendant dentist applied to have the plaintiff’s claim dismissed by way of summary trial on the basis that the action was statute barred by the Limitation Act, SBC 2012 c 13 [the “Limitation Act”].
The plaintiff filed a claim for negligence, breach of contract, and breach of fiduciary duty on May 25, 2016. The defendant alleged that the claim, as pled, was known to the plaintiff by February 2014, and therefore was not brought within the two-year limitation period. The primary question before the court was when Ms. Borek had, or ought to have had, the requisite state of knowledge such that her claim was “discovered” pursuant to ss. 6 and 8 of the Limitation Act.