)) Sharon Marson Plaintiff – v. –, 2017 ONSC 1828

CITATION : Marson v. Leahy, 2017 ONSC 1828 COURT FILE NO.: 15-65367 DATE: 2017/03/22 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) Sharon Marson Plaintiff – and – Dr. Carl Francis Leahy and The Ottawa Hospital (Civic Campus) Defendants )))))))))))) Bruce F. Simpson, for the Plaintiff Ms. Brooke Smith for the Defendant, Dr. Carl Francis Leahy Roberto Ghignone for The Ottawa Hospital HEARD: March 7, 2017 (Ottawa) REASONS FOR Decision C.T. Hackland J. [ 1 ] The Defendants, Dr. Leahy and the Ottawa Hospital bring this motion for

summary judgment under Rule 20.01(3) and 20.04 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. They ask that the Plaintiff’s medical negligence action be dismissed because it was commenced after the expiration of the limitation period. [ 2 ] On August 17, 2000, the Plaintiff underwent a right nephroureterectomy, which is a removal of her right kidney and ureter, based on her pre-operative diagnosis of right renal pelvic urothelial malignancy (cancer). The procedure was carried out by Dr. Leahy, a urologist, in the Defendant hospital.

On August 23, 2000, a pathologist examined the removed tissue and determined that the tissue was benign and the Plaintiff did not have cancer. Dr. Leahy revealed this information to the Plaintiff at a consultation on August 28, 2000. [ 3 ] The Plaintiff commenced this action by Statement of Claim dated August 13, 2015, nearly 15 years after the medical procedure. [ 4 ] There is a two year limitation period under s. 4 of the Limitations Act , S.O. 2002, c. 24 . This limitation period runs from the point the claim is discovered. In that regard, the Limitations Act provides: 5.

(1) A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew, (

i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by

an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (

b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24 , Sched. B, s. 5 (1).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (

a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24 , Sched. B, s. 5 (2). [ 5 ] Before reviewing the evidence as to the discoverability of this claim, I would note that the parties are content that the issue be decided under Rule 20. Affidavits were filed by the Plaintiff and by Dr. Leahy and they were cross-examined upon.

There do not appear to be any major disagreements as to the factual occurrences – the disagreement is as to what the Plaintiff “ought to have known” as well as the timing involved with that question. [ 6 ] In a candid affidavit and in her answers in cross-examination, the Plaintiff is clear that she was told by Dr. Leahy and fully appreciated that she was misdiagnosed with cancer and for that reason, the surgery resulting in the removal of her kidney was

unnecessary. She also acknowledged that she was released from the Canadian Armed Forces on February 18, 2001 and at that time wasprovided with a full set of her medical records, including those pertaining to the surgery in question and the pre-surgical and post-surgical testing. [7] At the time of her discharge from the Canadian Forces in December of 2000, the Plaintiff completed some medicaldocumentation in which she described her post-surgical meeting with Dr.

Leahy as follows: Following my Nephrectomy (in which both my kidney and ureter were removed) I was told that the pathology report, much to Dr.Leahy’s surprise, was not cancer. I had been mis-diagnosed.

I had had a kidney infection and scar tissue, for which I had had not onesymptom. [8] In paragraph 9 of the Plaintiff’s affidavit filed on this motion, she states: …When other persons suggested that I should investigate whether or not a malpractice had occurred and sue if so, I explained to themthat although I had no answers for them as I am not a medical doctor, I told them that we had discussed these issues with Dr. Leahy andthat he had explained to my husband and I, as above described. I further told them that the fact was that I trusted Dr.

Leahy and I didn’tidentify any reason why I should not trust him at his word and that he was being honest with us… [9] In cross-examination on her affidavit, (in answers to questions 75, 90 and 92) the Plaintiff admitted that in 2000, uponlearning of the misdiagnosis, she was encouraged by her family and friends to investigate the matter and to sue Dr. Leahy. Specifically,in the first week of September 2000, Ms. Marson’s parents, her sister (a nurse for over twenty years who understood “medical things”),and her sister’s partner, asked Ms. Marson why she was not suing Dr. Leahy. Also during this time period, Ms.

Marson’s friend, Bev,was “vocal and adamant” about Dr. Leahy’s alleged incompetence. She encouraged Ms. Marson to sue Dr. Leahy. [10] Moving forward 13 years, the Plaintiff completed an Application for Disability Benefits dated August 8, 2013, more than twoyears before the action was commenced. At the time she completed this Application, she once again confirmed her understanding thatshe had been misdiagnosed with cancer and that a lawsuit was an option that could be pursued.

As noted, she did not pursue this courseof action until August 13, 2015. [11] In the application materials, for a disability pension from the Canadian Forces (completed May and August 2013), thePlaintiff made the following entries: Was misdiagnosed with cancer. Had a kidney removed which caused me to elect to retire/release from CF (way too prematurely) Depression and PTSD resulting from being misdiagnosed with kidney cancer and having the kidney removed …From my perspective emotional care should have been offered yet it never was.

I had decided, much to everyone’s chagrin, that Iwould not pursue a lawsuit for malpractice. I was not an opportunist and in my heart of hearts didn’t feel that Dr. Leahy wasincompetent.

But looking back, I feel that my relationship with all my Dr’s changed in Sept 00 in that they were concerned I might takeaction. …on the 27 Jun 13 while reviewing my medical file for the first time ever, I was shocked to realize that there was an inconsistency withwhat were told and what he wrote in his report for that meeting. [12] Assessing discoverability requires a fact-based analysis to determine whether the person knows the facts necessary to make aclaim. The Ontario Court of Appeal in its 2011 decision in Lawless v.

Anderson, 2011 ONCA 102 identified the key issue was “whetherthe prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.” If the answer is yes,then the limitation period begins to run. [13] Justice Perrell in his 2013 decision Tender Choice Foods Inc. v.

Versacold Logistics Canada Inc. set out the applicable legalprinciples relating to discoverability as follows: [58] The question is whether the prospective plaintiff knows enough facts to base a cause of action against the defendant, and, if so,then the claim has been discovered and the limitation period begins to run: Lawless v. Anderson, 2011 ONCA 102 at para. 23;Soper v. Southcott supra; McSween v. Louis (2000), (ON CA), 132 O.A.C. 304 (C.A.); Gaudet v.

Levy (1984), (ON SC), 47 O.R. (2d) 577 (H.C.J.) at p. 582. [59] However, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; thelimitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim, and the laterdiscovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim: Oakville HydroElectricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), (ON SC), 71 O.R. (3d) 330 (S.C.J.) at paras.10-13; Giakoumakis v. Toronto (City), [2009] O.J.

No. 55 at para. 20 (S.C.J.). [60] Discovery does not depend upon awareness of the totality of the defendant’s wrongdoing. Section 5(1)(

a) of the Limitations Act,2002 prescribes that discovery occurs when the plaintiff knows or ought to know of an injury caused by

an act or omission of thedefendant and having regard to the nature of the injury legal proceedings would be an appropriate way to seek a remedy. For thelimitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant caused him or herharm, and certainty of a defendant's responsibility for the act or omission that caused or contributed to the loss is not a requirement:Kowal v. Shyiak, 2012 ONCA 512 at para. 18; Gaudet v.

Levy, supra. [61] The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone thecommencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say, theconstitute factual elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does notpostpone the running of the limitation period: Nicholas v. McCarthy Tétrault, (ON SC), [2008] O.J. No. 4258

(S.C.J.), aff’d [2009] O.J. No. 686 (C.A.), leave to appeal to S.C.C. ref’d [2009] S.C.C.A. 476. [14] On my view of the Plaintiffs own evidence, she was well aware from shortly after the August 2000 surgery that she had beenmisdiagnosed with cancer, that the removal of her kidney by Dr. Leahy had been unnecessary and that she could assert a claim againstthe Defendants as certain of her friends and family members were encouraging her to do. She was in possession of her complete medicalrecords from February of 2001.

If find those to be the facts and as such, I find that s. 5(1) of the Limitations Act is applicable so that hePlaintiff’s claim is deemed to be discovered by no later than the end of 2001. Further, I find that the Plaintiff has not led any evidencethat would displace the presumption in section 5(2) of the Limitations Act. [15] The Plaintiff states in her factum, “In some cases, a medical report indicating negligence may be necessary before a Plaintiffcan be said to know that she has a cause of action in negligence against a physician, see McSween v.

Louis, (ONCA).132 O.R. (3d) 304.” [16] I agree that “some cases” will require an expert’s report and those are cases in which the factual requirements of section 5(1)of the Limitations Act are not otherwise to be discovered. For the reasons summarized in paragraph 14 above, this is not such a case. [17] In this case, the Plaintiff has not filed an expert’s report under Rule 53. Instead, the Plaintiff relies on an exhibit to heraffidavit, which is a document connected with her application in 2013 for a military disability pension.

The document is entitled“Pension Medical Advisory” which contains a heading “Medical Opinion”. There appears to be a “medical adviser’s” signature and dateat the foot of the document. The identity of the person signing is not legible and indeed it may be unsigned, and the date is January 8,2014.

The opinion includes this statement: It is at least as likely as not, the client’s outcome would have been improved if a uretoscopy had been performed prior to thenephroureterectomy. … It is at least as likely as not the client’s outcome would have been improved if the standard of care of the day had been met. [18] As noted, in her disability application, exhibited to her affidavit, the Plaintiff has written “On the 27 June 2013, whilereviewing my medical file for the first time ever, I was shocked to realize that there was an inconsistency with what we were told andwhat he wrote in his report for that meeting.” The Plaintiff is referring to a cytopathology report which is said to be negative formalignancy.

I observe that 27 June 2013 is more than two years prior to the commencement of the action (which was August 13, 2015). [19] In his cross examination, Dr. Leahy described the basis for his pre-operative diagnosis and in particular explained why “cyto-negativity” does not exclude malignancy.

In any event, I find that the cytopathology results were part of the medical record provided tothe Plaintiff when she retired from the Canadian Forces in February of 2001. [20] I accept the Defendants argument that by 2001, the Plaintiff had a due diligence obligation to investigate whether she had aviable claim against the defendants, as she was urged by family and friends to do. Contrary to the position taken by the Plaintiff, thelimitation period is not tolled because the Plaintiff had not determined whether

an act or an omission on Dr. Leahy’s

part is culpable or inbreach of the standard of care. As was recently re-stated by the Court of Appeal in Dale v. Frank, 2017 ONCA 32, at para. 7 …a plaintiff need not know that a defendant's act or omission was culpable in order for the loss it causes to be discovered. To require aplaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legalconclusion as to the defendant's liability to her. This is too high a bar for a plaintiff to have to meet: see Kowal v. Shyiak, 2012 ONCA512, 296 O.A.C. 352, at para. 18.

The proper test, as applied by the motion judge, is Rouleau J.A.'s formulation in Lawless v. Anderson,2011 ONCA 102, 276 O.A.C. 75, at paras. 23 and 28: Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospectiveplaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim hasbeen "discovered", and the limitation begins to run: see Soper v. Southcott (1998), (ON CA), 39 O.R. (3d) 737 (C.A.)and McSween v.

Louis (2000), (ON CA), 132 O.A.C. 304 (C.A.). ... [W]hat a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. [Emphasis inoriginal.] [21] In

summary, I find that this action was statute barred under the Limitations Act prior to its commencement. The Defendants’motion for judgment is therefore allowed and the action is dismissed. [22] If the Defendants intend to seek costs, they are to provide a written submission to the court within 30 days of the release ofthese reasons and the Plaintiff may respond within 30 days of receiving the Defendants’ submissions. Mr. Justice Charles T. Hackland

Released: March 22, 2017 CITATION : Marson v. Leahy, 2017 ONSC 1828 COURT FILE NO.: 15-65367 DATE: 2017/03/22 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sharon Marson Plaintiff – and – Dr. Carl Francis Leahy and The Ottawa Hospital (Civic Campus) Defendants REASONS FOR Decision C.T. Hackland J. Released: March 22, 2017