03 Aug Time Limitation in Medical Malpractice Cases

A plaintiff claiming damages for personal injuries resulting from alleged negligent medical treatment must do so within two years of the treatment.  This limitation period is set out in s. 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266.

This two year limitation period can only be postponed if a plaintiff is able to demonstrate that one of these four components had not been satisfied before two years have passed:

1. The identity of the defendant was known to the plaintiff.
2. The plaintiff had certain facts within his or her means of knowledge.
3. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success. 
4. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action.

In the case of Bell v. Ries and Wigmore, 2016 BCSC 309, the Plaintiff alleged negligence against a doctor who performed a syringing which resulted in perforation of his eardrum. Within days of the procedure, the Plaintiff had to undergo an operation to treat the perforated eardrum.  The Plaintiff was advised by an otolaryngologist that the syringing should not have been done, the syringing was the cause of the perforation and additional surgery may be required as a result of the perforation.  The Plaintiff’s family doctor also advised him that the ear should not have been syringed. 

However, the Plaintiff did not commence an action against the doctor until almost six years after the injury was sustained.  He claimed that although he knew he was injured, he did not realize the extent of it until after the limitation period had passed.

The Defendant submitted that the Plaintiff’s action should be dismissed.  The Defendant argued that the Plaintiff was aware that he was injured within days of the alleged negligence. 

The Court held that the Plaintiff’s claim fell outside the limitation period and was therefore statute barred. The Court had to determine whether the Plaintiff could claim the benefit of a postponement, and decided he could not. The Plaintiff knew the identity of the Defendant at an early date and knew that he had suffered loss or damage on account of a breach of duty. The exact extent of the loss did not need to be known. His health and lifestyle were affected and he required multiple surgeries.  A reasonable person would regard these facts as showing an action against the doctor would have a reasonable prospect of success. 

Medical malpractice cases are complex and require expertise.  If you have received negligent medical treatment, contact Acheson Sweeney Foley Sahota for a free consultation.