Negligent act by hospital before patient received care was negligence within meaning of limitation provision

Plaintiffs were four patients of defendant hospital, who received jaw surgery in mid 1980's from oral surgeons practicing at hospital, and device had to be implanted in patients' heads as part of surgery. Device was defective and broke down over time, causing injuries to plaintiffs' skulls, and patients had to reattend hospital between 1987 and 1996 to have devices removed. Actions were commenced by patients in 1996 and 1997, and defendants claimed that actions of patients were statute-barred, as they were commenced two years after last treatment. Patients brought action against hospital in negligence, with result that actions of patients E, K, and L were dismissed as statute-barred under Public Hospitals Act, and action of patient H was allowed in part. Patients appealed on basis that trial judge erred in dismissing actions as statute-barred, and hospital cross-appealed on basis that H’s action should also have been dismissed as statute-barred. Appeal allowed in part on other grounds and cross-appeal dismissed. Trial judge did not err in applying limitation period under Act or in rejecting argument of fraudulent concealment. Negligent act by hospital before patient received care or treatment, which became actionable only because it enabled treatment at hospital that caused injury, was negligence in care or treatment of patient within meaning of Act’s limitation provision. Fact that hospital contacted surgeons to ensure they knew about issue with implants and had been in touch with distributer and advised that it already had names of surgeons for further communication was not consistent with concealment in sense required by doctrine of fraudulent concealment. Hospital’s argument that tomogram procedure that H had done was not “treatment” under Act was rejected. Nothing in Act’s limitation provision supported distinction between diagnostic procedure and treatment that hospital sought to make.

Endean v. St. Joseph's General Hospital (2019), 2019 CarswellOnt 3301, 2019 ONCA 181, Paul Rouleau J.A., K. van Rensburg J.A., and B. Zarnett J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 7433, 2017 ONSC 2632, F. Bruce Fitzpatrick J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 20606, 2017 ONSC 7190, Fitzpatrick J. (Ont. S.C.J.).

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