Patients Need to Act Promptly in a Medical Mapractice Case

The recently released decision of the Ontario Court of Appeal in Liu v. Silver, 2010 ONCA 731 serves as a caution to plaintiffs that they should not delay in commencing legal action in a medical malpractice case.

There was a factual finding that before the plaintiff was discharged from the hospital on she knew that she had suffered an injury as a result of a surgical procedure performed by her surgeon to which she had not consented.  She also knew from that point that litigation was an appropriate avenue to seek redress and she immediately sought legal advice with pursuing a claim against the surgeon.

The Court of Appeal held that on these findings that it was no error in concluding that the two year limitation period began to run from the date of the plaintiff’s discharge from hospital.  As the action was not commenced by her lawyer within the two year period the action was dismissed.

Case Summary

The plaintiff went into the Scarborough Hospital for the removal of a polyp from her uterus. This was day surgery and she was expected to be able to return to work the next day. The surgeon did not find a polyp but rather a fibroid tumour in the uterine wall. The surgeon decided to remove the tumour. The uterus was perforated resulting in fluid loss. A second procedure was necessary due to abdominal bleeding. The plaintiff was in fact suffering from a number of complications and was placed in the ICU for post-operative care. She remained in hospital for a total of 18 days.

Legal Background

The initial procedure took place on August 16 2004. The plaintiff commenced her action on December 20 2006 nearly two years and four months afterwards. The surgeon brought a motion for summary judgment on the basis that the limitation period began to run on August 20 2004 and no later than September 3 2004 when the plaintiff has sufficient knowledge she had a claim. The plaintiff took that position that she did not obtain sufficient knowledge until the receipt of a medical opinion in July 2006.

The Limitation Period

The Limitations Act 2002, provides that a proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered. It sets out the rules to determine when a claim is discovered.  It provides that a claim is discovered on the earlier of the satisfaction of two separate tests.

Actual Knowledge of the Claim Starts the Time Running

The first test is a subjective test that speaks to the plaintiff’s actual knowledge of the types of facts needed to start the running of the limitation period. The second test is an objective test and deems discovery of the claim on 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 the subjective test.

A Plaintiff Must Rebut a Presumption of Actual Knowledge

The Act also creates a presumption that the plaintiff knows of the matters giving rise to the discovery of the claim on the day of the act or omission giving rise to the claim. The plaintiff has the evidentiary burden to prove that this was not so and that the claim was issued within the limitation period. Such a determination is fact driven, to be decided based on the particular circumstances of each case.

The Standard of Knowledge Required for the Subjective Test

A plaintiff need not know the precise cause of her injury before the limitation period starts to run. It is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant.

The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts. Error or ignorance of the law or legal consequences of facts does not postpone the running of the limitation period.

The Plaintiff Cannot Wait for a Medical Expert Opinion Report


The court ruled in the circumstances of this case that the medical opinion report obtained by the plaintiff added little of substance to the material facts the plaintiff was required to know in order for her to appreciate she had an action in negligence against the surgeon.

Factual Analysis


The decision in this case rested on a factual analysis of the three aspects of the knowledge required to cause the limitation period to run. These were:

1.      Knowledge that Injury, Loss or Damage had Occurred

2.      Knowledge the Injury Was Caused by an Act or Omission of the Person against Whom the Claim is Made

3.      Knowledge a Proceeding would be an Appropriate Means to Seek a Remedy

The pertinent facts were that the plaintiff was aware on the date of the initial procedure that she sustained a large bleed was fighting for her life. She received an explanation of what had happened from the surgeon in their first post-operative meeting. She also met with the hospital’s Chief of Obstetrics who went through the medical record with her and the chain of events that occurred during the procedure.  The plaintiff had actual knowledge that:

(a) the surgeon was unable to find the polyp she had consented to have removed,

(b) the surgeon instead removed a fibroid,

(c) the surgeon had not obtained the plaintiff’s consent to remove the fibroid,

(d) the removal of the fibroid resulted in damage to a blood vessel and “a large

bleed”, and

(e) this damage included a lengthy stay in the hospital including the ICU,

tremendous pain, a large scar and an inability to move.

The plaintiff knew at a minimum that her injury was caused by the act of a surgical procedure being performed for which she had not consented.

The plaintiff while still in the hospital knew the surgeon was at fault, had done some something wrong and that she ‘could go after him’ as the person who had done the surgery. It was noted in the medical chart within four days of the procedure that the plaintiff and her husband wanted to seek legal counsel. Prior to her discharge from hospital the plaintiff was planning to sue the surgeon and requested her medical records so that she could provide them to her prospective lawyer.

The court found that these facts were sufficient to cause the limitation period time to start running.

Failure to Act Promptly the Root Cause of the Dismissal

The findings of the motion judge in respect of the subjective test were sufficient to dismiss the plaintiff’s action as it was brought out of time based on her actual knowledge. Nevertheless the motions judge also analysed the plaintiff’s behaviour in the context of the objective test. The motions judge found that the plaintiff failed to display reasonable diligence in that neither she nor her counsel provided an explanation for periods of delay that occurred before she commenced her claim.

The plaintiff testified she had acquired no new facts pertaining to her claim between her injury on August 16, 2004 and when she retained counsel in June 2005. She commenced the action over a year after she retained counsel. There was also no satisfactory reason why it took nearly eight months until July 2006 to receive a medical expert report after it was requested in October 2005. When time is of the essence, it is not a sufficient explanation to say that unsuccessful requests were made for the report.


This case illustrates the importance of the need for plaintiffs to organize their facts and documents promptly, retain a lawyer without delay and commence legal action on time. Failure to do so will result in their rights being barred as happened in this case.

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