Late, critical and unexplained disclosure after expiration of limitation period provided plaintiffs with revelation

Ontario civil | Civil Practice and Procedure | Parties | Adding or substituting parties

Deceased passed away after dental surgery. After surgery, deceased was discharged and waiting in lobby where he was found choking and in distress. Deceased was taken to emergency room and treated, after which he was released to nursing home. Next day, when deceased could not breathe, he was returned to health centre and treated by removing with forceps surgical sponge which was obstructing deceased’s throat. Deceased’s behaviour changed, he was unable to swallow, he could not accept feeding tube and he passed away within one year of surgery. Plaintiffs brought action for medical negligence as result from defendants’ negligent failure to remove medical sponge from deceased’s throat after dental surgery. Plaintiffs asserted that their claim was not known against radiologist until early 2015 when defendants delivered to plaintiffs various x-ray images taken and interpreted by radiologist. Plaintiffs brought motion to add radiologist to action after expiration of applicable limitation period. Motion granted. Plaintiffs rebutted presumption of prejudice as no trial date had been set, case did not have complicated factual matrix, same medical evidence was to be relied on to prove claim and x-ray imaging records remained in each of parties’ legal files, among other things. Plaintiffs established special circumstances. Late, critical and unexplained disclosure, well after expiration of limitation period provided plaintiffs with revelation of radiologist’s involvement in treatment. Plaintiffs were precluded from commencing action against radiologist, since they never knew any radiograph existed or that radiologist interpreted such radiograph.

Estate of John Edward Graham v. Southlake Regional Health Centre (2019), 2019 CarswellOnt 398, 2019 ONSC 392, G.P. DiTomaso J. (Ont. S.C.J.).

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