In the recent 2016 decision in McMillan v. Adeite and State
Farm Mutual Automobile Insurance Company, the Court had to
decide whether the plaintiff exercised reasonable diligence in
discovering the extent of her injuries and whether this
discoverability principle allowed her to extend the two year
The case is also of interest to medical practitioners and
comments on the role of patient and doctor regarding test
The Plaintiff was involved in a motor vehicle accident on April
14th, 2011. She was taken via ambulance to the hospital where no
fractures were detected and she was discharged with medication and
a referral for physiotherapy.
The Plaintiff's family doctor told her that she had soft
tissue injuries and she began to receive physiotherapy and massage
therapy. Later that summer, the Plaintiff was referred to a
physiatrist and underwent an EMG and was also seen by a
chiropractor. Almost 2 weeks later, the physiatrist ordered an MRI
of the cervical spine due to the Plaintiff's continued
complaints and severity of her symptoms. The MRI took place in
September 2011, and the Plaintiff was not advised of the test
results. During this time period, the Plaintiff's symptoms
started to improve. Although the Plaintiff continued to improve,
her injuries from the motor vehicle accident continued to bother
her. She continued to receive treatment, but the Plaintiff was
never advised the findings of her MRI, until June 2013, when she
was referred back to the physiatrist, who advised her of the
she had two herniated discs in her
she could not run anymore because it
could cause significant damage to her spine,
she was too young for surgery but
that she might consider surgery if things got worse, and
her condition was serious and that
she should see a lawyer.
The Plaintiff retained a lawyer and the Statement of Claim was
issued on September 30th, 2013. However, she had previously served
Notice letters on the Defendants on April 1st and 13th, 2013.
Was it incumbent on the Plaintiff to follow up with her
physiatrist to follow up on the MRI results? The Plaintiff argued
that in her experience, the doctors would contact her if there were
any serious findings and in 2011 following the MRI, neither her
family doctor nor her physiatrist contacted her about the MRI
J.C. Corkery J. found:
The diagnoses of injuries, the determination of how permanent
and serious the consequence of such injuries, falls within the
realm of experts. Patients and potential plaintiffs act reasonably
when they defer to such experts. With respect to health care, it is
unreasonable to hold patients to a higher standard of managing
their care than their doctors.
However, it was also stated that even if the Plaintiff had
followed up regarding the MRI results, then the Claim would have
still be brought in time given that the MRI results probably would
not have been available until after September 30th, 2011.
It was concluded:
Reasonable diligence does not require a patient to take steps to
determine the results of an MRI ordered by a specialist that the
patient has been referred to by her family doctor.
If the Plaintiff was unsuccessful in this motion, it is probable
a Claim would have been commenced against the Family Doctor and
Physiatrist for not advising her sooner of her condition.
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