In Spry v. Southlake Regional Health Centre, 2022 ONSC 1783, Hurley J. reviewed and applied the legal principles underpinning misnomer in granting the plaintiff leave to amend the Statement of Claim to add a defendant to the action more than two years after the events giving rise to the claim occurred.
This medical malpractice decision arises from the plaintiff’s treatment at Southlake Regional Health Centre (“Southlake”). The plaintiff commenced a lawsuit against Southlake, Mr. K, and Dr. M in October 2019.
The plaintiff alleged that she attended Southlake in February 2018, complaining of pain in her right arm, was assessed in the emergency room, underwent imaging and received medication to treat the pain. The plaintiff alleged that Dr. M ultimately referred the plaintiff for a neurology consultation with respect to right hand/ arm pain neuropathy, and then discharged. Her pain continued and later that night, she went to the emergency department at a Markham Stouffville Hospital, where she was diagnosed with acute limb ischemia and transferred to St. Michael’s Hospital where she underwent surgery that morning. The plaintiff alleged she has been left with a permanent, serious injury to her right hand and arm.
The Court acknowledged that the plaintiff’s lawyers had extensive expertise in medical malpractice and conducted their initial investigation and received opinions from an expert prior to issuing a statement of claim. The claim, served in November 2019, identifies Dr. M as the physician responsible for the plaintiff’s care while she was at Southlake. Dr. M’s statement of defence, delivered in February 2020 after the two-year limitation period, asserts that eventually Dr. M’s shift ended, and care was assumed by another unidentified physician. However, Dr. M. did not issue a third party claim against the other physician.
At the examination for discovery of Dr. M in December 2020, it was discovered that handwritten doctor notes were notes of a colleague of Dr. M. Up until this point, the plaintiff’s lawyers believed Dr. M and Mr. K to be the individuals responsible for the plaintiff’s care throughout the entire time she was at Southlake.
As a result of the information allegedly obtained for the first time at Dr. M’s discovery, the plaintiff sought to add Dr. S as a defendant to the action by relying on the doctrine of misnomer, the principles of which were outlined by MacLeod R.S.J. in St. Loy-English v. The Ottawa Hospital et al., 2019 ONSC 6075. Dr. S opposed the motion, arguing that the plaintiff’s claim failed the “litigation finger test”, or alternatively, that the claim fell outside the two-year limitation period. Dr. S. argued that a reasonable person would, from reading the claim, conclude that the plaintiff intended to sue only Dr. M and not Dr. S and that the failure to identify Dr. S. as one of the attending physicians demonstrates “a profound lack of diligence in ascertaining the identities of any defendants.” Hurley J., however, disagreed with Dr. S:
[The plaintiff] and her lawyers, I find, intended to commence a lawsuit against all the healthcare professionals who were negligent in their treatment of her. They collected the records of all the hospitals where she received medical treatment and consulted an expert to assist them in identifying whether any healthcare professionals fell below the standard of care and, if so, who did. They concluded that only one physician, Dr. M, treated her in the emergency department at Southlake. There was no lack of diligence; if anything, the lawyers acted expeditiously as soon as [the plaintiff] contacted them to secure the necessary records, consult an expert, commence a lawsuit and conduct examinations for discovery. The emergency department records cannot be described as pellucid. Why, for example, is it only Dr. M who is identified as the attending physician? Why is Dr. S on one roster of Southlake’s emergency department physicians and not on another? If it was a mistake to not name Dr. S as a defendant initially, I find it was unintentional, and understandable, in the circumstances.
With respect to the limitation defence asserted by Dr. S, Hurley J. held that the limitation period began to run when Dr. M delivered his statement of defence and crossclaim in February 2020, revealing that he left the hospital at 9:30 p.m. and another physician took over the plaintiff’s care, neither of which were disclosed in the records that had been produced.
Ultimately, the Court allowed the plaintiff’s motion, granting her leave to amend the Statement of Claim adding Dr. S as a defendant to the action. Given the “hard-fought” nature of the motion, which included a record exceeding 3,000 pages, the Court also awarded the plaintiff her costs of the motion in the amount of $16,000, inclusive of disbursements and HST.
