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19/May/2016
Discoverability in Medical Malpractice Cases

If you have been injured as a result of potential medical malpractice, you should be aware of the applicable “limitation period” that may bar your claim. Once a limitation period has expired, a plaintiff is prevented from suing, regardless of the merits of the claim.

In Ontario, the general limitation period is two years, which means that you must commence legal action within two years of the day on which your claim was discovered (s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.). This rule is easily applied in most personal injury actions. For example, if you are injured in a motor vehicle accident on January 1, 2016, then you must start the lawsuit before January 1, 2018.

The issue of when a medical malpractice claim is discovered, however, is often a critical and difficult issue. If you are injured during surgery, should you be aware of a potential lawsuit against your doctor on the day of the surgery? When you start experiencing pain? Or when a second doctor tells you that you require revision surgery?

The Ontario Court of Appeal dealt with this issue recently in Brown v. Wahl et al, 2015 ONCA 778. The plaintiff, Ms. Brown, had undergone several dental implantation surgeries performed by the defendants, Dr. Wahl and Dr. Casciato, from May 2009 to September 2010. Following these dental implants, Ms. Brown suffered from pain, broken dentures, and dental infections.

Ms. Brown saw a new dentist in December 2011, who explained the cause of her broken dentures, and informed her then that he would have conducted the implant procedure differently than Dr. Wahl and Dr. Casciato.

Ms. Brown retained counsel, who then hired an expert to review her case. The expert concluded in a report dated January 2014 that Dr. Wahl and Dr. Casciato had been negligent in their treatment of Ms. Brown. As a result of the expert report, Ms. Brown commenced two actions against Dr. Wahl and Dr. Casciato in January 2014.

The defendants brought a summary judgment motion and argued that Ms. Brown’s claim should be dismissed as the limitation period had expired. Ms. Brown responded that she was unaware of her potential lawsuit until she received the expert report in January 2014.

The motion judge held that the plaintiff ought to have known by December 2011 that her dental problems were caused by the defendants’ negligent treatment. An expert report was unnecessary in this case for the plaintiff to discover her claim. The motions judge found that Ms. Brown started her action after the limitation period expired, and was therefore barred from suing Dr. Wahl and Dr. Casciato.

On appeal, Justices Cronk, Epstein, and Huscroft upheld the motion judge’s decision to dismiss Ms. Brown’s lawsuit. The court reiterated that the test for discoverability was when a prospective plaintiff “had all of the material facts necessary to determine that she had prima facie grounds for inferring that the [defendant] had been negligent.” It was not necessary for the plaintiff to know the exact mechanism of the negligence and her injuries. The limitation period began to run when Ms. Brown was able to infer that Dr. Wahl and Dr. Casciato were negligent in their treatment.

In medical malpractice cases, therefore, a plaintiff does not need an expert opinion in order to “discover” the existence of a potential lawsuit. If you or a family member suspect that you may have received substandard medical treatment, it is important to seek legal advice immediately. A lawyer can help you determine when the limitation period expires so that you can protect your right to sue.


Bogoroch & Associates LLP has extensive experience in medical malpractice litigation. Bogoroch & Associates LLP strongly believes that victims of medical malpractice are entitled to access to justice. Please contact Richard Bogoroch (rbogoroch@bogoroch.com) or Heidi Brown (hbrown@bogoroch.com) for further information on how we can assist you or your family member.

Bogoroch & Associates LLP
150 King St W #1901
Toronto, Ontario
M5H 1J9
Phone: 416-599-1700
Website: www.bogoroch.com

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