Brown v. Baum, 2016 ONCA 325
Released May 3, 2016 | Full Decision [CanLII]
On March 25, 2009, the plaintiff, Diana Brown, underwent breast reduction surgery, performed by the defendant Dr. Joseph Baum. On May 6, 2009, Dr. Baum performed further surgery to remove necrotic tissue. Dr. Baum performed further surgical procedures on May 26, 2009, June 2, 2009, June 24, 2009, August 12, 2009, and June 16, 2010. On June 4, 2012, Ms. Brown issued a Statement of Claim. Dr. Baum brought a motion for summary judgment on the basis that the action was statute barred.
At first instance, Justice Mew dismissed the motion. On appeal, the Court of Appeal agreed with Justice Mew’s findings. The Court found that a reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while the doctor was in the process of correcting his own error and hopefully eliminating, or at least reducing, the damage. This is because the need for an action might be done away with if the damage is minimized or eliminated altogether.