Is it appropriate to sue your Doctor while still being Treated by them?

When we visit our doctor and undergo medical treatment, it is with the expectation that we are in safe and competent hands and that everything will be okay. However, sometimes that is not the case and medical errors occur.

Medical malpractice suits arise when patients are injured or suffer a significant decline in their health due to medical error or negligence. However, is it reasonable to sue a medical professional while still being treated by them? Further, how does one determine the limitation period for making a claim when a doctor is continuing to treat a patient in an attempt to correct damage from a previous procedure?

These are the questions at the core of a legal battle between one doctor and his patient, in Brown v. Baum, 2016.

Case example

After a series of complications and surgeries to fix medical problems that occurred following her initial breast reduction surgery, the plaintiff, Ms. Brown issued a Statement of Claim to her doctor, Dr. Baum, stating her intention to sue him for negligence and lack of informed consent (although the negligence claim was dropped at the motion).

The plaintiff charged that the doctor did not inform her of the risks and possible complications of undergoing breast surgery, particularly for someone who is obese and/or a smoker. The defendant doctor responded by filing a motion for summary judgement on the basis that the plaintiff's action was statute barred per the Limitations Act, as her claim commenced more than three years since the initial surgery. However, because the plaintiff's claim was brought less than two years from the last procedure to correct her problems, the motion judge disagreed that the plaintiff's action was statute barred and therefore, he denied the defendant's motion.

The motion judge also recognized that according to case law, in order to commence an action in a medical malpractice case, a plaintiff is not required to know the exact cause of his/her injury, but need only know enough facts on which to base an allegation of negligence against a health care professional or hospital.

Dr. Baum appealed the motion judge's decision and the Court of Appeal was faced with having to decide whether or not the motion judge erred in law, in his application of s.5(1)(a)(iv), the fourth condition of discoverability of the Limitations Act, to the facts of the case. This condition states "that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek and remedy it."

The fourth condition relates to when the injured party discovers the extent of their loss or injury and recognizes that an action or claim is an appropriate means to try to remedy their loss. Under the Limitations Act, a claim must be filed within two years of when a person knew they experienced a loss caused by the defendant.

Thus, the heart of the case was deciding when the plaintiff most likely knew that filing an action against Dr. Baum was the appropriate step to take. In his appeal, Dr. Baum pointed out that, according to her own testimony, Ms. Brown admitted that she had been taking pictures of her breasts for months following the multiple surgeries, in the event that she would proceed with a lawsuit. Dr. Baum argued that it was therefore unlikely that the plaintiff was unaware of her ability or right to make a claim against him, given that she was gathering evidence to prepare for that very action. 

Dr. Baum also cited two errors that he believed the motion judge made in his analysis. The first was the judge's interpretation of s.5(1)(a)(iv) of the Limitations Act, in which he stated that the point of the subsection was to "delay the commencement of the limitation period until such time as initiating a proceeding is an appropriate remedy". Dr. Baum also argued that the motion judge erred by mixing a claim to a legal right, with commencing a legal proceeding to pursue that right.

The Court of Appeal rejected the appellant's argument and agreed with the motion judge's interpretation that the fourth condition is met at the point when the claimant not only knows the factual circumstances of the loss suffered but also knows that an action is an appropriate remedy. Only then, does the two year limitation period begin.

They also ruled that the motion judge's decision was appropriate, based on the facts of the case that were presented. Specifically, because the appellant was continuing to treat the patient in an attempt to fix the problems that arose from the initial surgery, it is unlikely that she would consider it appropriate to sue him, particularly in the event that he might be successful in repairing the damage sustained after her previous surgeries.

Another likely reason why the plaintiff did not earlier pursue a claim is that, prior to her final surgery, her doctor referred her to a specialist who informed her that Dr. Baum had been successful in fixing the damage.

The Court also rejected the appellant's second argument that the motion judge did not apply a legal meaning to the term "appropriate", with regard to part four of Section A in the discoverability condition, as per the decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada.

The Court of Appeal noted that the two cases were significantly different. The Markel case involved insurance transfer payments and considered the appropriateness of possibly delaying the commencement of a legal action in order to negotiate a settlement. This issue is significantly different from the appropriateness of a patient suing their doctor while still undergoing treatment by that doctor.

The motion judge remarked that, in practice, a doctor would not continue treating a patient and trying to correct a condition after the patient had begun suing them. The Appeals Court ultimately ruled that the plaintiff had met the test in s.5(1)(b) of the Limitations Act and that a reasonable person in her circumstances would not consider it appropriate to sue her doctor while he was in the process of attempting to correct his error. Further, if a doctor is able to remediate the damage and improve the outcome, there may be no reason to sue.

The Court of Appeal concluded that the motion judge made no error in his approach to the issue and therefore dismissed Dr. Baum's appeal.

Ms. Brown was awarded $12, 500 in costs.

At Rastin Gluckstein Lawyers, our team of personal injury lawyers has years of experience successfully representing individuals who were injured due to another person's negligence. Call or visit us today for a no-obligation consultation to discuss the specifics of your case.

Every situation is unique and our lawyers will provide frank advice on the strength of your claim and what's involved in obtaining favourable compensation for your losses. Depending on the nature and severity of your injuries, some of your losses may entail lost earnings (past and future), medical and rehabilitation expenses, housekeeping expenses, and pain and suffering.

Call Rastin Gluckstein Lawyers today to find out how we can help.