





CITATION:
Lawless v. Anderson, 2011
          ONCA 102



DATE: 20110208



DOCKET: C52232



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Rouleau JJ.A.



BETWEEN



Lillian Lawless



Plaintiff (Appellant)



and



Alvin
          James Anderson
and La Fontaine-Rish Medical Group
          Ltd.




Defendants (Respondent)



Paul J. Pape and Shantona Chaudhury, for the appellant



T.N.T. Sutton and S.R. Shody, for the respondent, Alvin James
          Anderson



Heard: December 7, 2011



On appeal from the order of Justice D.M. Brown of the Superior
          Court of Justice dated May 13, 2010, with reasons reported at 2010 ONSC 2723.



Rouleau J.A.:



INTRODUCTION

[1]

The appellant appeals the summary judgment granted by
    the motion judge dismissing her claim in negligence against the
    respondent.  The motion judge held that the
    claim was statute-barred, as the applicable limitation period had expired.

[2]

The issue on the motion and on appeal is
    discoverability under s. 5 of the
Limitations
    Act, 2002
, S.O., c. 24, Sched. B.  This
    court must determine what information the appellant needed to have in order to discover
    that she had a cause of action in negligence against the respondent arising out
    of the surgery that he performed on her.

FACTS

[3]

In
    June 2003, the appellant responded to an advertisement by the La Fontaine-Rish
    Medical Group Ltd., offering breast augmentation services.  She eventually met with the respondent, Dr.
    Anderson.  Having decided to proceed with
    the surgery, the appellant signed a consent form to undergo the procedure as
    well as a document entitled Procedure: Augmentation Mammaplasty.  This document warned of various risks,
    including hardness, persistent swelling, lack of symmetry, the potential
    need for further surgery and the possibility of permanent deformity, painful
    and unsightly scarring, and prolonged illness.

[4]

The
    respondent performed the surgery on the appellant on July 3, 2003.  He subsequently saw her on July 10, 17 and
    30.  His notes indicated some bruising
    and the need for an uplift mastoplexy at a later point in time.  On one of the follow-up visits, the appellant
    expressed concern regarding the appearance of her breasts and, in
response,
she was informed by clinic staff that she would
    need a second surgery to correct the first one.  According to the appellant, it was at this point that the
 red
flags went up and she sought a second opinion.

[5]

The appellant met with Dr. Michael Weinberg on November
    20, 2003.  Dr. Weinberg is a plastic
    surgeon who regularly acts as a medico-legal expert.  At that meeting, Dr. Weinberg informed her
    that she had been disfigured and that her breasts were deformed.  Dr. Weinberg went on to identify specific problems
    with how the respondent performed the surgery.  Specifically, he indicated that the respondent:

1)
should
not have used saline
    implants;

2)
should
have placed the implants in front
    rather than behind the muscle; and

3)
ought
to have done a
    mastoplexy at the same time as the breast augmentation procedure rather than
    have the two done separately.

[6]

Doctor Weinberg further advised the appellant that she
    would need corrective surgery.  He also told
    her that she should contact a lawyer and complain to the College of Physicians
    and Surgeons of Ontario about the treatment she received from the respondent.

[7]

Following the meeting, the appellant followed Dr. Weinbergs
    advice.  She filed a complaint with the
    College of Physicians and Surgeons of Ontario within a week and she arranged a
    meeting with a solicitor, Mr. Alan Rachlin.

[8]

The appellant met with Mr. Rachlin on December 4,
    2003.  In a letter to the appellant dated
    December 19, 2003, Mr. Rachlin summarized their initial meeting and confirmed
    the appellants understanding of the errors made by the respondent as related
    to her by Dr. Weinberg.  Mr Rachlin went
    on to explain, however, that the Canadian Medical Protective Association
    fights all malpractice cases extremely hard.  That means that, except in the clearest cases, medical malpractice
    litigation is protracted and expensive.  For this reason, Mr. Rachlin did not recommend initiating a lawsuit
    without obtaining additional information.  In order to decide whether a lawsuit was warranted, he advised that the
    appellant should obtain a complete copy of her medical charts as well as an
    expert opinion from a qualified plastic surgeon as to whether the respondent
    had breached the standard of care.

[9]

On December 19, 2003, Mr. Rachlin also wrote a letter
    to the respondent requesting a copy of the appellants chart.  On or around that date, he spoke with Dr.
    Weinberg by telephone.  In his affidavit
    filed on the motion for summary judgment, Mr. Rachlin states that, during the
    course of this conversation, Dr. Weinberg informed him that he could not give
    an opinion or a preliminary view as to whether Dr. Anderson met the standard of
    care without reviewing Ms. Lawless chart.  This information was later confirmed in a May 10, 2004 letter from Dr.
    Weinberg to Mr. Rachlin, in which he stated that he was unable to provide an
    opinion as to the medical standards of care at this time due to the fact that I
    have not been able to review the patients medical file.

[10]

Mr. Rachlin experienced significant difficulty in
    obtaining the appellants charts from the clinic.  This culminated in a court order dated May 5,
    2004, requiring the clinic to produce the charts.  Upon receiving these, Mr. Rachlin sent them
    to Dr. Weinberg under cover of a letter dated June 24, 2004, headed extremely
    urgent, in which he requested a preliminary opinion as soon as possible. Dr.
    Weinberg responded by email on July 22, 2004, stating I have reviewed the
    chart of L. Lawless.  I dont believe
    that the consent was informed and the result was below acceptable medical
    standards.  My full report is to follow.

[11]

Upon receipt of the e-mail, Mr. Rachlin did not issue
    the claim.  In cross-examination on his
    affidavit, Mr. Rachlin explained that he did not consider this e-mail to be
    sufficient to found litigation because it was not a written report.  The conclusion he had reached was that it
    was not in the clients interest or reasonable for me to commence litigation
    until I had, or recommend to the client that she instruct me to commence
    litigation, until I had the opinion from a suitably qualified expert in a form
    that would be admissible under the
Evidence
    Act
and the
Rules of Civil Procedure
that said that the doctor had done something wrong because of the subjective
    nature of cosmetic surgical procedures.

[12]

Dr. Weinberg ultimately declined to provide an expert report
    and suggested that someone with greater experience with the type of procedure
    performed on the appellant be retained.  Mr. Rachlin retained Dr. Frank Lista who, on June 6, 2005, provided a report
    stating that the respondent had fallen below the standard of care in performing
    the surgery.  The appellant issued her
    statement of claim on June 24, 2005.  The
    LaFontaine-Rish Medical Group Ltd. was noted in default.

[13]

The respondent then brought a motion for summary
    judgment on the basis that the appellant had discovered her claim prior to
    January 1, 2004, and as a result, the one year limitation period established in
    s. 89(1) of the
Health Professions
    Procedural Code
, S.O. 1991,
c
. 18, Sched.
2,
had expired.  The
    parties agree that, if the claim was discovered prior January 1, 2004, the
    limitation in the
Health Professions
    Procedural Code
applies and the claim issued June 24, 2005 is
    statute-barred.  If the claim was
    discovered after December 31, 2003, the two year limitation period set out in
    the
Limitations Act, 2002
applies and
    the claim was issued in time.

[14]

At the motion, the appellant took the position that the
    claim was not discovered until she received the written opinion from Dr. Lista
    on June 6, 2005, and therefore the claim was issued well within the statutory time
    period.

[15]

The motion judge concluded that the appellant had
    knowledge of all of the material facts necessary to discover her claim prior to
    January 1, 2004.  Because the claim was
    issued over a year later, he allowed the respondents motion and dismissed the
    claim.

Position of the appellant on appeal

[16]

On appeal, the appellant argues that the motion judge
    erred in concluding that the appellant knew all of the material facts necessary
    to make her claim prior to January 1, 2004.  It is apparent from the reasons that this conclusion is based on his
    having found that, in her meeting with Dr. Weinberg, the appellant was provided
    with all the information needed in order to discover her claim.  In the appellants view, however, this finding
    ignored or misunderstood the evidence in Mr. Rachlins affidavit that Dr.
    Weinberg advised him that he could not give an opinion or a preliminary view
    without reviewing the charts.

[17]

In support of her allegation, the appellant notes that
    in his reasons, the motion judge indicates that Dr. Weinberg said he could not
    provide a formal opinion until he had reviewed the charts.  The appellant argues that this is inaccurate,
    as it makes no reference to Dr. Weinberg not being prepared to give even a
    preliminary view on the standard of care.  In the appellants submission, this error goes to the core of the
    discoverability issue.  In order to know
    that she had a claim, the appellant needed to know that there was an arguable
    case that the respondent had breached the standard of care.

[18]

On appeal, the appellant no longer argues that the
    limitation period did not begin to run until the written opinion of Dr. Lista was
    obtained.  However, she maintains that
    the limitation period only began to run when she received the email from Dr.
    Weinberg on July 22, 2004, in which he gave the preliminary opinion sought by
    Mr. Rachlin.

[19]

In oral argument, counsel essentially summarized the
    appellants position as follows:

1)

in his conversation with Mr. Rachlin, Dr. Weinberg
    qualified any opinion or advice that he had given to the appellant orally at
    their November 20 meeting; and

2)

the
appellant needed to get
    access to her  medical records in order
    to obtain the medical opinion, which was necessary to discover her claim.

[20]

For the reasons that follow, I would dismiss the
    appeal.

ANALYSIS

The case law dealing with discoverability

[21]

The
    appellants position can best be summarized by the statement in her factum that,
    The missing link for discoverability was a medical opinion based on the
    patient charts.  In my view, this
    misinterprets the case law.  On the facts
    of this case, the appellant had knowledge of the material facts on which the
    claim was based following her meeting with Dr. Weinberg.  The case law does not provide that obtaining the
    patient charts and a medical opinion are necessary to discover a claim where
    the charts and medical opinion add nothing of significance to the plaintiffs knowledge.

[22]

The
    principle of discoverability provides that a cause of action arises for the
    purposes of a limitation period when the material facts on which it is based
    have been discovered, or ought to have been discovered, by the plaintiff by the
    exercise of reasonable diligence.  This
    principle conforms with the generally accepted definition of the term cause of
    action  the fact or facts which give a person a right to judicial redress or
    relief against another:
Aguonie v.
    Galion Solid Waste Material Inc
. (1998), 38 O.R. (3d) 161 (C.A.), at p.
    170.

[23]

Determining
    whether a person has discovered a claim is a fact-based analysis.  The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant.  If the plaintiff does,
    then the claim has been discovered, and the limitation begins to run: see
Soper v. Southcott
(1998), 39 O.R. (3d)
    737 (C.A.) and
McSween v. Louis
(2000),
    132 O.A.C. 304 (C.A.).

[24]

In
    some medical malpractice cases, however, it has been recognized that in order
    to discover that they have a claim, plaintiffs may require advice from a person
    who is medically trained.  Similarly, in
    some cases, plaintiffs will require access to their medical records and charts in
    order to become apprised of the facts necessary to discover their claim.

[25]

When
    dealing with cosmetic surgery, as in the present case, the outcome of the
    surgery will often be subjective.  For
    any number of reasons, the patient may be unhappy with the result, but will not
    know whether the unsatisfactory outcome may be the result of negligence rather
    than an unfortunate, but non-negligent outcome.  This is well illustrated by the case of
Patterson v. Anderson
(2004), 72 O.R. (3d) 330 (S.C.).  In that case, a 71 year-old had liposuction
    surgery in order to improve the appearance of her knees and thighs.  After the operation, she suffered pain and
    was dissatisfied with the appearance of her legs.  She consulted various doctors and complained
    to the College of Physicians and Surgeons of Ontario.  However, it was only when she received the
    decision of the College resulting from her complaint that the plaintiff
    discovered the facts needed to issue a claim in negligence.  As Speyer J. explained at para. 25:

[I]t
    is not until the plaintiff receives the CPSO report that she realizes two
    things.  First, she may not have been an
    appropriate candidate for the procedure.  Second, an inappropriate instrument may have been used during the course
    of the surgery.  Both these matters are
    directly related to Dr. Anderson.  It is
    now the basis of the allegations of negligence contained in para.
11 of the Statement of Claim.

[26]

In
Patterson
, the plaintiff needed the
    medical information contained in the CPSO discipline decision to discover that
    she may have been an inappropriate candidate and that an unsuitable instrument
     an inappropriately sized canula  may have been used.  These two facts were not known to the
    plaintiff until revealed to her in the report from the college, and they would not
    have been obvious to a lay person.  These
    two facts do not appear to have been communicated to Ms. Patterson by any of
    the doctors who she had previously consulted as a result of the pain in her legs.  As noted by the trial judge, the specific factual
    allegations disclosed in the report were simply unknown to the plaintiff prior
    to the receipt of the report.  As these factual
    allegations formed the core of her claim of substandard medical treatment, the
    limitation period did not begin to run until their discovery.

[27]

The
    need to obtain medical records in order to discover the facts necessary to make
    a claim is well illustrated in
Urquhart et
    al. v. Jacklin et al.
(1999), 124 O.A.C. 11 (C.A.).  In that case, the plaintiff had been
    diagnosed with breast cancer and the issue was whether the defendant physician
    had failed to interpret a mammogram conducted a year prior correctly.  Absent access to her chart, including a copy
    of the mammogram, and the advice of a radiologist as to whether the mammogram disclosed
    the presence of the cancer, the plaintiff could not know whether she could
    allege that the doctor was negligent in failing to detect the presence of the
    cancer.

[28]

While
    courts speak of the need to obtain a medical opinion or the need to have access
    to the medical records, these are not required in all cases: see
McSween v. Louis
.  Moreover, a formal written medical opinion is
    not required  what a prospective plaintiff must know are the
material facts
necessary to make a claim,
    whatever form they come in.  This point was
    well expressed in
Gaudet et al v. Levy et
    al
. (1984), 47 O.R. (2d) 577 (H.C.J.), at p. 582:

It
    is a question of fact as to when the information developed by his solicitor or
    by himself has reached the stage that a reasonably prudent person,
with

appropriate
    access to medical knowledge
(appropriate in the sense of that which could
    be discovered by a reasonably prudent solicitor, or plaintiff following a
    reasonably diligent investigation) would have determined that he
had prima facie grounds for inferring that
    his doctor had been negligent
or had engaged in malpractice upon him.
    [Emphasis added]

The appellants knowledge of the material
    facts

[29]

In
    the present case, the appellant had access to Dr. Weinberg, a medical expert.  By the end of her meeting with him, the
    appellant knew all of the material facts required to discover her claim.

(a)
She
    knew that she had suffered injury.  As a
    result of the operation, she had excess skin that dangled under her breast, the
    implants touched in the middle of her chest, and one of her nipples was
    incorrectly placed on the implant.  Dr.
    Weinberg commented that she was deformed and disfigured as a result of the
    operation.

(b)
She knew the errors made by the
    respondent.  He had placed the implants
    under the chest muscle, rather than over it, he had used the wrong kind of
    implant and he ought to have carried out a mastoplexy at the same time as the
    breast augmentation procedure.

(c)
She
    knew that she would need corrective surgery or face permanent disfigurement.

(d)
She knew that she should report the
    respondent to the College of Physicians and Surgeons of Ontario because of the
    treatment she received and that she should consult a lawyer.

[30]

It
    was clear to the appellant at this point that she had suffered more than an
    unfortunate and unsatisfactory outcome.  She was aware of what was wrong, why it was wrong, what would have to be
    done to correct it and who was responsible.  In other words, the appellant had all of the material facts necessary to
    determine that she had
prima facie
grounds for inferring that the respondent had been negligent.

[31]

The
    delay by the respondent and the clinic in providing the appellant with her
    clinical records cannot be condoned.  However, these medical records, the preliminary opinion provided by Dr.
    Weinberg in his email dated July 22, 2004 and the formal written opinion
    provided by Dr. Lista contained no new material facts.  In fact, they only served to confirm the essential
    information the appellant received in November 2003, when she met with Dr.
    Weinberg.  In her cross-examination, the
    appellant confirmed that Dr. Lista provided virtually the same information that
    she had received from Dr. Weinberg.  Dr. Lista
    added only that a new type of implant could also have been used, which merely
    supported Dr. Weinbergs previous advice that the improper type of implant had
    been used by the respondent.

[32]

A
    review of the statement of claim leads to the same conclusion.  All of the essential facts pleaded in the
    statement of claim were known to the appellant as a result of her meeting with
    Dr. Weinberg.

Dr. Weinbergs statement that he would not
    provide an opinion

[33]

The
    appellant made much of the fact that Dr. Weinberg told Mr. Rachlin that he
    would not provide him with his medical opinion, even a preliminary one, as to
    the respondents failure to meet the standard of care, without first reviewing
    the appellants medical records.  However,
    Mr. Rachlin did not indicate why Dr. Weinberg wanted to review these records
    prior to providing his opinion.  Dr.
    Weinberg did not file an affidavit and was not cross-examined.

[34]

Given
    the information that Dr. Weinberg had already conveyed to the appellant, his
    reluctance to provide the appellants solicitor with an opinion, even a
    preliminary opinion, regarding the negligence of a fellow doctor does not, in
    my view, delay the start of the limitation period.

[35]

The
    appellant characterizes Dr. Weinbergs refusal to provide Mr. Rachlin with an
    opinion, even a preliminary one, as a qualification of his opinion.  I disagree with this characterization.  As the appellant testified in her
    cross-examination on discovery, her meeting with Dr. Weinberg was etched in my
    brain.  Nothing in the record, including
    Mr. Rachlins affidavit, suggests that Dr. Weinberg corrected, qualified or
    withdrew any statements he made to the appellant, nor is it suggested that he
    had changed his view that a complaint to the College of Physicians and Surgeons
    of Ontario against the respondent was warranted and that the appellant ought to
    consult a lawyer.  Further, Mr. Rachlins
    letter to the appellant dated December 19, 2003 confirms, without
    qualification, much of what Dr. Weinberg told the appellant.

[36]

What
    the record does reveal is that Mr. Rachlin was seeking a written medical
    opinion in a form that could be filed in court.  In his view, an opinion was necessary before proceeding with a claim, in
    order to rebut any future motion brought by the respondent to dismiss the
    claim.  As Mr. Rachlin explained to the
    appellant, he expected the Canadian Medical Protective Association to
    vigorously defend the claim and to bring a motion to dismiss the claim if the
    appellant did not have a medical opinion.  This, however, confuses the issue of when a claim is discovered with the
    process of assembling the necessary evidentiary support to make the claim winnable.  To discover a claim, the plaintiff need only
    have in her possession sufficient facts upon which she could allege
    negligence.  Additional information will
    support the claim and help to assess the risk of proceeding, but is not needed
    to discover the claim.  As this court stated
    in
McSween
, at para. 19:

To
    say that a plaintiff must know the precise cause of her injury before the
    limitation period starts to run, in my view places the bar too high.
Both the
one year
    limitation period itself, as well as the production and discovery process and
    obtaining expert reports after acquiring knowledge through that process, are
    litigation procedures commonly used by a plaintiff to learn the details of how
    the injury was caused, or even about the existence of other possible causes and
    other potential defendants.  In order to
    come within s. 17 of the [
Health Disciplines
    Act
], it is sufficient if the plaintiff knows enough facts to base her
allegation
of negligence against the
    defendant. [Emphasis added]

[37]

Finally,
    I would not give effect to the appellants submission that the motion judges
    reference to Dr. Weinberg having advised that he could not provide a formal
    opinion shows that the motion judge misapprehended the evidence and led him to
    the wrong result.  It is apparent from a
    reading of the reasons as a whole that this error played no role in the motion
    judges conclusion.  He found that a
    medical opinion simply would serve as evidence in support of her claim, not as
    the disclosure of necessary facts to ascertain whether she had a claim against
    Dr. Anderson.  In other words, the
    motion judge properly concluded that, on this record, the medical opinion being
    sought by Mr. Rachlin, formal or preliminary, was not required given the
    appellants knowledge of the material facts.

CONCLUSION


[38]


As
    a result, I see no basis to interfere with the motion judges finding that the
    appellant knew the material facts upon which negligence is alleged against the
    respondent no later than December 19, 2003.  The claim is therefore statute-barred and I would dismiss the appeal.

[39]

I would award the respondent $5,100 in costs, inclusive
    of disbursements and applicable taxes.

Paul Rouleau J.A.

I agree K. Weiler
    J.A.

I agree R.A. Blair
    J.A.

RELEASED:  February 8,
    2011


