Limitations (Dental Malpractice)

Novello v Glick, 2016 ONSC 975 (CanLII)

[25] Dr. Glick states that the Deputy Judge erred in law in his interpretation and application of ss. 4 and 5 of the Limitations Act, 2002. I agree.

[26] First, the Deputy Judge’s decision that the limitation period runs from the date the relationship was terminated is contrary to law and an error.

[27] Second, the Deputy Judge did not consider the presumption in s. 5(2). Since Mr. and Mrs. Novello did not file any evidence to show when they discovered the claim, the presumption of discovery is triggered. The failure to consider the application of s. 5(2) is an error in law. The presumption in s. 5(2) applies unless the plaintiff proves “the contrary”. Mr. and Mrs. Novello did not prove the contrary.

[28] Mr. and Mrs. Novello did not file an affidavit in response to Dr. Glick’s motion. Dr. Glick’s counsel filed an affidavit that attached Dr. Glick’s clinical notes and records and a reporting letter dated July 12, 2012 from Dr. Reinish to Dr. Bernstein (who appears to be Mr. Novello’s family doctor). A copy of this letter was sent to Dr. Glick. This letter and the clinical notes provide the factual sequence of events that are outlined above. There was no additional evidence before the Deputy Judge.

[29] There is no legal principal that fixes the commencement of a limitation period on the date the doctor patient relationship terminates. As explained in Brown v. Baum, 2015 ONSC 849 at para. 52, it depends on the facts of the case:

52 Each case will, of course, turn on its particular facts. It will not be every case in which the fact that a physician-patient relationship is ongoing that it would be appropriate to toll the running of the limitation period until that relationship has terminated. Nor in every case where there is a series of surgical procedures undertaken will time not run until the last of those procedures has been undertaken. It will depend on the facts and circumstances.

[30] In medical malpractice claims, the case law reveals two situations where the tolling of a limitation period is suspended until the doctor patient relationship is over. Neither situation is triggered on the facts of these Claims.

[31] In Tremain v. Muir (Litigation guardian of) 2014 ONSC 185, the court acknowledged that a doctor’s ongoing medical interventions may prevent the plaintiff or his representative from proceeding with an action or retaining counsel. In Tremain v. Muir, the plaintiffs filed extensive evidence, but were unable to prove that medical interventions prevented them from proceeding with an action. As a result, the action was statute barred. Dr. Glick did not provide ongoing medical interventions. He turned the care of Mr. Novello over to Dr. Reinish.

[32] In Brown v. Baum, the defendant doctor continued for over a year after the initial surgery to achieve a better outcome for the plaintiff. The court stated (at para. 53), “[t]here was no doubt about what he was doing or why he was doing it. There is no indication in the evidence that the defendant was motivated by a concern to minimize his potential liability to the plaintiff.” The court found it “would be unreasonable and inappropriate in such circumstances to start the two year limitation clock running against [the plaintiff] while the defendant's good faith efforts to achieve a medical remedy continued.” Dr. Glick did not attempt to achieve a better outcome for Mr. Novello through continued treatment. Instead, he turned the care of Mr. Novello over to Dr. Reinish.

[33] The Deputy Judge did not consider whether the facts before him fell within the circumstances considered in Tremain v. Muir or Brown v. Baum. He simply stated his view that the limitation period runs from the date the relationship ended. This is an error in law because there is no blanket rule that in all medical malpractice cases, the limitation period runs from the date the relationship ends.

[34] Further, if the Deputy Judge had considered whether the facts before him engaged the examples in Tremain v. Muir or Brown v. Baum, the result would have been obvious. There are no facts in this case that would support a finding that the limitation period should not start to run until the doctor patient relationship terminated.

[35] Pursuant to s. 5(2), the plaintiffs are presumed to know all “of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place” [emphasis added].

[36] The alleged act or omission occurred on March 14, 2012, when Dr. Glick inserted the dental implants. The evidence does not support any other act or omission. Shortly after this procedure, Mr. Novello developed an infection and was hospitalized. There is no factual basis for finding that the act or omission happened when Dr. Glick last saw Mr. Novello on May 16, 2012. This was merely a follow up appointment. By this time, the problems that allegedly arose from the insertion of the dental implants on March 14, 2012, had been treated by Dr. Reinish and Mr. Novello was “healing well”.