In finding that the defendant had not established that the plaintiff had the requisite knowledge to have discovered the claim more than two years before the claim was filed, the court noted the following:
I find that Ms. Borek’s evidence in discovery that she believed there had been something “wrong” about the installation of the temporary crowns that had led to her extraordinary pain does not establish, in the context of the whole of the evidence, that she knew that an error or departure from her treatment plan had occurred. That is, she was not aware that the pain she was experiencing was not pain that she had consented to as a result of Dr. Hopkins following a treatment plan she had agreed to, and she continued to believe (or at least hope) that the pain would be addressed or improved by completion of that plan, either in its current form or in a form that Dr. Hopkins would modify for her. Given Dr. Hopkins’ reassurances to her that her pain would be resolved by completion of the plan, this was not unreasonable.
I am also of the view that as long as Ms. Borek was reliant upon Dr. Hopkins for her treatment, that it would not have been appropriate or practical for her to contemplate a lawsuit against him.⁵
Ultimately, the court found that the limitation period could not start running until Ms. Borek had terminated her treatment relationship with Dr. Hopkins, and dismissed Dr. Hopkin’s application to dismiss the claim.
In Bendall v. Goulart, 2017 BCSC 599, the plaintiff brought a claim for injuries related to a radiation overdose during cancer treatment, which the defendant physicians argued was statute-barred. The defendant physicians had advised the plaintiff that they had mistakenly exposed him to an overdose of radiation, but they also advised that it was not possible to determine whether the symptoms were related to that mistake or the result of his underlying cancer and its agreed-upon treatment. The court found that the limitation period did not begin to run until the plaintiff was aware of an injury distinct from the symptoms of his underlying cancer or the effect of the appropriate radiation dose he had consented to and that he had brought his claims within time:
“The defendant physicians had advised Mr. Bendall of a range of outcomes and side effects from both his underlying disease and the proposed appropriate treatment of the disease. If his professional advisors could not differentiate between those outcomes that were within the range to be expected from either or both of the underlying disease or its planned treatment (without overdose), Mr. Bendall cannot reasonably be expected to have known differently.”⁶
It is important, however, for the plaintiff to establish that the agreed-upon treatment provides a plausible explanation for their injuries.
In Ounjian v. St. Paul’s Hospital, 2002 BCSC 104, the plaintiff underwent a myomectomy to remove a benign uterine fibroid. When she awoke from general anesthetic, she had pins and needles sensation and numbness in her right leg. She was subsequently found to have suffered damage to her peroneal nerve, leading to foot drop.
