In recent memory, few cases have influenced the daily practice of medical litigation as have Findlay v. Holmes,  O.J. No. 2796, 111 O.A.C. 319, and in Soper v. Southcott (1998), 39 O.R. (3d) 737. Since they were decided, at least two suits fell to summary judgment because these Ontario Court of Appeal decisions broadened the scope of actions which must be started within a year of suspecting malpractice. On the other hand, they also appear to have dramatically opened up the field to new claims.
Under s. 89 of the Health Procedural Code, Regulated Health Professions Act, 1991(formerly s.17 of the Health Disciplines Act), physicians have been insulated from any tort action "unless such action is commenced one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which the person alleges negligence or malpractice." Until Findlay and Soper, plaintiffs relied on Gaudet v. Levy (1984), 47 O.R. (2d) 577. It stated laymen should not be expected to know whether a physician was negligent. The limitation period did not run until the plaintiff had access to a medical opinion on standard of care. This question, because it entails imputed knowledge and credibility, could not be decided on summary judgment.
The Court of Appeal in Findlay accepted part of the reasoning in Gaudet, the need for plaintiffs to investigate with diligence, and rejected the remainder:
"While in many cases, as suggested [in Gaudet], the facts will only become known upon receipt of a medical opinion with respect to the applicable standard of care, there will also be cases where the plaintiff will have actual or deemed knowledge of the material facts: immediately after the surgery or treatment, some time later if the results are unexpected but the plaintiff is advised to wait until the problem resolves, or upon receipt of the clinical history."
In Soper, the Court tipped the balance even further:
"In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period."
The change from "many" to "some," implies that Soper was a further retreat from Gaudet.
The Court of Appeal upset the harmony under Gaudet between the statute and substantive law. Limitations statutes fit the elements of the action. Thus, the statute ought to be construed that medical opinions on both standard of care and causation are required before the plaintiff could be possessed of all the requisite facts. The ensuing disconnect can be seen in Findlay itself:
"The evidence as a whole, therefore, leads to the inevitable conclusion that the appellant must have known of the relationship between his osteoporosis, vertebral fractures and the prednisone treatment."
Although causation is material to s. 89 (s. 17), the real issue is not causation but standard of care. A fork early in the road separates the evidentiary burdens between these issues. The House of Lords stated in Bolitho v. City and Hackney Health Authority,  H.L.J. No. 47: "The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence." The protection to doctors, that liability is imposed for breach of medical standards, not misadventure, means knowledge of causation also falls short of knowledge of malpractice. This principle of law has been called the "Bolam test," after a seminal English decision, Bolam v. Friern Hospital Mgt. Ctee,  2 All E.R. 118
Soper illustrates the problems plaintiffs face after some period of self-help investigation. The motions judge found the plaintiff had sufficient facts to sue when the lawyer obtained the hospital charts. In finding the limitation defence fatal to the suit, McDermid J. relied on the institution of proceedings before the opinion was obtained. The statement of claim may crystallize the plaintiff’s knowledge as of the last receipt of outside information. Where over a year has passed since the injury, Gaudet might have led a solicitor to refrain from commencing an action. To commence an action under these circumstances could be considered negligence. (The solicitor retained within one year of the damage might, however, want to issue a claim prior to the expiry of that year.) Under Gaudet, the solicitor could decide to defer proceedings until an expert opinion was in hand. In Soper, the plaintiff started proceedings prior to the receipt of the expert opinion. One might argue this action could not have been saved from dismissal at trial, even under Gaudet.
But the appellate court in Soper shifted the goalposts. The experiences of plaintiffs in two cases following Soper and Findlay show how actions commenced under the Gaudet principles are now prone to attack on summary judgment motions.
Urquhart v. Allen Estate,  O.J. No. 663, unreported, Court File No. 14880/93, was less paradigmatic. Proceedings were started prior to receipt of the expert report on liability. Relying on Soper, the motions judge held that the limitation had passed before the action was commenced, and dismissed the action. The court attached some weight to the fact that the plaintiffs’ solicitor had started the action against another doctor and the hospital "without any expert advice or report." It was unsuccessfully argued on behalf of the plaintiff that she could not have known or ought to have known the facts upon which negligence or malpractice was alleged until she (or, more precisely, her lawyer) received the expert’s opinion that the defendant doctor had breached the standard of care. This would lead one to suspect that the lawyer had in fact relied on the test in Gaudet at the outset.
The decision in Urquhart was partly overturned in the Court of Appeal,  O.J. No. 2985, 124 O.A.C. 11, Court File No. C31787. The court distinguished this case from Soper by stating that it fell into the category where a medical opinion was necessary to know whether or not to institute an action. Although the plaintiff’s limitation problem was repaired on this issue, the issue of due diligence was deferred to the trial judge for further argument. Without sounding a retreat from Soper, the appellate court’s decision in Urquhart illustrates the difficulty in determining, according to the new case law, which cases must be started even in the absence of an expert’s report, and which ought to be deferred until such a report is in hand.
In Lalani v. Woolford,  O.J. No. 4509, unreported, Court File No. 95-CU-93149; reversed in part,  O.J. No. 3440, 126 O.A.C. 122, Court File No. 723/98, the motions judge granted only partial judgment dismissing the claim with regard to specific allegations of negligence expressed in a complaint to the College of Physicians and Surgeons more than a year prior to the commencement of the action. This consisted of a lay opinion that "something must have gone wrong," and a statement that one of nine other doctors she consulted told her "there was nothing wrong with me that time would not heal." The motions judge declined to grant judgment on facts ascertained in medical opinions received within the one-year period. On appeal by the defendant, the Divisional Court dismissed the entire action, on the basis that the opinions filed in response to the motion did not disclose evidence that the defendant’s conduct fell below the standard of care. The ostensible discontinuity in logic in the appeal decision is in fact entirely consistent with Soper and Findlay. It amounts to a holding that the opinions were not relevant to or dispositive of the state of the pursuer’s knowledge. The Divisional Court distinguished the appellate decision in Urquhart on the grounds that, there, the plaintiff had ultimately obtained an opinion on negligence. Lalani appears to be a more obvious example of a plaintiff’s action simply caught stranded by the Court of Appeal’s new test.
Unless the limitation issue can be obviously addressed, a solicitor who, without expert help, tries to determine whether a medical opinion is required to assess liability, ventures into a minefield. If a year has already passed since the injury, the solicitor should ask an expert this very question. This may seem a radical practice innovation. However, failure to solicit evidence to meet the limitation defence could expose the lawyer to a negligence claim. In repair cases, such evidence should be considered for inclusion in the plaintiff’s evidence in response to this defence.
The Soper and Findlay decisions have also been applied in two subsequent judgments arising from medical malpractice trials. In Pearce v. Edwards,  O.J. No. 2592 (S.C.J.), the plaintiff was found to be limited intelligence and therefore incapable of possessing knowledge of malpractice until her counsel obtained an expert report disclosing negligence. In McSween v. Louis (2000), 187 D.L.R. (4th) 446 (C.A.), the Court of Appeal reaffirmed the existence of a "second category where a medical opinion was not necessary in order for the plaintiff to know the material facts upon which to base a negligence claim against Dr. Louis." Is it then possible that plaintiffs can now succeed against physicians in proving a case in negligence entirely without expert evidence? Previously, such cases were rare and restricted to non-medical aspects of medical practice, such as defective or faulty use of equipment. Even in consent to treatment cases, medical evidence was considered necessary, although not determinative. The courts, having created a "second category" of medical negligence in the limitations context, may have inadvertently opened a Pandora’s Box in the substantive law. Quietly, it seems, Soper and Southcott amount to a Canadian rejection of Bolam, and thus an own goal scored by the medical defence bar.
Previously published in The Lawyers’ Weekly and a longer version in The Advocates’ Quarterly
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