The decision in Tschirhart v. Grand River Hospital is a good example of a misnomer analysis in regards if a John Doe doctor . It’s worth noting that the court rejected the doctor’s argument that the Statement of Claim couldn’t satisfy the litigation finger test because it didn’t plead that the plaintiff was seen in the emergency department where the doctor worked:
[36] In my view, the reasonable person reviewing the Statement of Claim and having knowledge of the facts would know that the “litigating finger” was pointed at Dr. Benhabib. Assessing the Statement of Claim, I am satisfied that the allegations as against Dr. Benhabib are pleaded with sufficient particularity such that Dr. Benhabib’s insurer and representative, the CMPA, would have known that the litigating finger was pointed at him. Namely, the Statement of Claim sets out the Plaintiff’s name, the name of the hospital he attended (GRH), the date he attended GRH, the symptoms he presented and the fact that he underwent a triage assessment, was examined and sent home without further testing (para. 10). The Statement of Claim also sufficiently sets out the causes of action and basis for liability (paras.14-15).
[37] The CMPA, Dr. Benhabib’s insurer, a “relevant person” with access to the relevant notes and records, received the Statement of Claim when the named doctors were served and would have known by reading it that the litigating finger was pointed at the emergency room physician who saw the Plaintiff on April 30, 2015 at GRH and could have easily and quickly ascertained from the ER Records and/or further inquiries of GRH that it was Dr. Benhabib. I also conclude that had he received the Statement of Claim, Dr. Benhabib, who also had access to the relevant notes and records including the ER Records, could have easily and quickly determined that he was the intended emergency physician. As he admitted on cross-examination, although he did not initially remember the Plaintiff, he was able to consult the ER Records to determine that he had in fact seen the Plaintiff on April 30, 2015 at GRH (Cross-examination of Dr. Benhabib held June 3, 2019, Questions 30-43). This conclusion is supported by the fact that, although not a representative of Dr. Benhabib, GRH was able to identify Dr. Benhabib as the emergency room physician who saw the Plaintiff, pleaded this in its Statement of Defence, advised him accordingly and confirmed his identity on examination for discovery.[38] In my view, the facts of this case are analogous to Ormerod. In particular, Dr. Benhabib’s name was illegible in the ER Records, however, he could be identified easily and quickly by his insurer and representative, the CMPA, by reviewing the ER Records and/or making inquiries of GRH. I do not accept Dr. Benhabib’s submissions that misnomer does not apply because he and his insurer had to make additional inquiries. Consistent with Ormerod and Spirito, the fact that his insurer could have easily identified him from the ER Records or other inquiries as the physician who saw the Plaintiff as pleaded is sufficient to establish that it would have known that the litigating finger was pointed at him.[39] I also reject Dr. Benhabib’s submission that the Statement of Claim is vague and non-specific because it does not explicitly state that the Plaintiff was seen in the emergency department at GRH. The fact that the Statement of Claim states that the Plaintiff “underwent a triage assessment and examination” and “was sent home without further testing” is sufficiently specific. This finding is supported by Dr. Benhabib’s evidence on cross-examination:
It also provides a comprehensive summary of misnomer principles at paras. 15-27.
