Held: (Pollak J) Appeal dismissed.
In February 2011, Mr. Musllam was diagnosed with a thoracic spinal lesion requiring surgery. In March 2011, the surgery was conducted but it was unfortunately unsuccessful and Mr. Musllam was left paralyzed. In March 2013, Mr. Musllam commenced a claim against the neurosurgeon and hospital for surgical misadventure and lack of informed consent.
While developing the case, Mr. Musllam’s counsel ordered a complete set of medical records for all of his health practitioners. Upon reviewing the records in May 2017, counsel found a potential claim against Mr. Musllam’s family doctor and chiropractor for delayed diagnosis of the spinal lesion. Counsel retained an expert in October 2017 to provide a standard of care opinion. In January 2019, Mr. Musllam moved to add his family physician and chiropractor as defendants. The motion was granted. The chiropractor appealed on the basis that the limitation period for Mr. Musllam’s claim expired in February 2017. The family doctor did not appeal.
The court found that the limitation period did not expire until May 2019. In this case, Mr. Musllam could not have discovered the claim for delayed diagnosis against the chiropractor or family doctor until counsel reviewed his family doctor’s records in May 2017 because:
- Before the records were reviewed, there was no basis for concern
that the tumour could have been diagnosed earlier; and - There was insufficient evidence to find that a reasonable person
with the abilities and circumstances of the plaintiff could have discovered the claim against the chiropractor sooner than May 2017.
The court rejected the appellants’ argument that the Motion Judge erred in
analyzing certain evidence and finding that there was no prejudice to the
chiropractor. The Motion Judge was owed deference because there was a lot
of evidence in the motion record, and it was apparent that the Motion Judge
reviewed it all.
