{"id":889,"date":"2019-04-12T17:48:16","date_gmt":"2019-04-12T21:48:16","guid":{"rendered":"http:\/\/limitations.ca\/?p=889"},"modified":"2019-04-12T17:48:16","modified_gmt":"2019-04-12T21:48:16","slug":"ontario-a-good-abilities-and-circumstances-s-51b-analysis","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=889","title":{"rendered":"Ontario: a good “abilities and circumstances” s. 5(1)(b) analysis"},"content":{"rendered":"

Lewis v. Plaskos<\/a> is noteworthy for its findings regarding the plaintiff’s abilities and circumstances for the purposes of a discovery analysis.\u00a0 The court doesn’t often make these findings explicitly (though it should).<\/p>\n

The court found that plaintiff had the abilities of her experienced medical malpractice lawyer, and a reasonable experienced medical malpractice would be alert to the possibility that physician’s notes are incomplete.\u00a0 It was accordingly unreasonable for the plaintiff, through her lawyer, not to consider the possibility and make the accordant inquiries:<\/p>\n

\n

[<\/a>49]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The focus of the dispute is on sub-section 5(1)<\/a>(b),\u00a0Limitations Act, 2002<\/a><\/i>.\u00a0 In particular, the issue is whether the analysis of hospital records by Ms. McCartney has met the test of being objectively reasonable.<\/p>\n

[<\/a>50]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0After the firm was retained by the plaintiffs, Ms. McCartney was assigned the task of reviewing the hospital records.\u00a0 In that process, she was looking to see what was or was not done and why.\u00a0 Ms. Cartney was considering who was responsible.\u00a0 She knew this was a case of potential delayed diagnosis.\u00a0 Those responsible were to be named as defendants in the statement of claim.<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There are three preliminary matters that are of concern, namely delay, the state of the hospital records and the lack of notes by Ms. McCartney.<\/p>\n

[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The hospital records were received by Ms. McCartney on or about October 14, 2011.\u00a0 Thirteen months later, in November 2012, the review of those records commenced.\u00a0 While Ms. McCartney was on a working maternity leave during part of that period of time, presumably meaning part-time attendance at the office and with responsibility for other files as well, the review process should have commenced much earlier.\u00a0 Mr. Michael also had carriage of the file.\u00a0 Other junior lawyers in the firm could have been asked to assist.<\/p>\n

[<\/a>53]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There is always a danger in waiting until the presumptive limitation period is about to expire.\u00a0 The process can become rushed. \u00a0Due diligence was not met.<\/p>\n

[<\/a>54]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It is now known that Dr. Cameron failed to fully record her involvement with Ms. Lewis, particularly her consultation with Dr. Plaskos.<\/p>\n

[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Litigation lawyers, particularly those involved in personal injury and medical malpractice cases, routinely review physician\u2019s notes and hospital records.\u00a0 These lawyers are aware of the dangers in conducting such review regarding illegible handwriting, abbreviated terms and incomplete recording.\u00a0 The failure of physicians to fully record matters pertaining to a patient is often a topic in the litigation process, including at trial.\u00a0 In the absence of records, physicians often have difficulty recalling specific events and discussions.<\/p>\n

[<\/a>56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view, Ms. McCartney and Mr. Michael, both experienced medical malpractice lawyers, would have, or should have, been alert to the possibility the physician\u2019s notes were incomplete.<\/p>\n

[<\/a>57]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The only contemporaneous note made by Ms. McCartney during her review and analysis of the hospital records was the summary previously mentioned.\u00a0 The summary is incomplete, making no mention of her conclusions as now presented on this motion and lacking detail as to the analytical process undertaken.\u00a0 Hence, on cross-examination, Ms. McCartney was unable to recall her state of mind when reviewing the records and the details of her thought process.\u00a0 Like physicians, lawyers need to record all details of their involvement for future use.<\/p>\n

[<\/a>58]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The first step in the review process is to determine what was recorded.\u00a0 When part of the record contains handwritten notes, the lawyer looks to see if such are legible.\u00a0 There was a legitimate concern with Dr. Cameron\u2019s handwriting and use of abbreviated terms.\u00a0 Ms. McCartney and Mr. Michael, for example, looked at a key word and correctly concluded it to be \u201crefused\u201d.\u00a0 \u201cRadiol\u201d was considered to be radiologist or radiology department.\u00a0 When there is any concern as to what was written, it requires inquiry of the record keeper.<\/p>\n

[<\/a>59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There are two conclusions Ms. McCartney made that are of critical importance.\u00a0 First, she considered the phrase \u201cwill discuss with radiologist or radiology department re:\u00a0 imaging\u201d as connected to the preceding note \u201cwill check post void residual\u201d.\u00a0 Second, Ms. McCartney determined \u201cMRI refused as normal rectal tone and no bilateral leg weakness\u201d as Dr. Cameron declining to order an MRI.\u00a0 Such are possible interpretations or conclusions but there are others that, in my view, are far more reasonable.<\/p>\n

[<\/a>60]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Just as physicians arrive at a \u201cdifferential diagnosis\u201d following examination of a patient, so too must a lawyer consider all reasonable options in their analysis of a case.<\/p>\n

[<\/a>61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Connecting \u201cwill discuss with radiologist or radiology department re:\u00a0 imaging\u201d to \u201cpost void residual\u201d is too restrictive.\u00a0 The more reasonable interpretation is that Dr. Cameron was going to seek assistance in determining what further imaging tests were required.\u00a0 At this point, Dr. Cameron was aware the lumbar x-ray, as interpreted by Dr. Plaskos, was inconclusive having regard to the nature of Ms. Lewis\u2019 complaints.<\/p>\n

[<\/a>62]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Dr. Cameron\u2019s note is all recorded under the time of 18:00 hours.\u00a0 Ms. McCartney incorrectly assumed this represented one event.\u00a0 But there are gaps in the recording and, having regards to the words used, it is more likely the record should have been seen as several separate recordings.<\/p>\n

[<\/a>63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In this regard, the words \u201cMRI refused\u201d invites the question \u201cby whom\u201d.\u00a0 Ms. McCartney\u2019s conclusion that Dr. Cameron refused her own request is not reasonable.\u00a0 It is contrary to normal use of English language and, as it follows the note \u201cwill discuss with radiologist \u2026\u201d with a gap in between, leads to the inference someone else is involved.\u00a0 At a minimum, there are a number of possible interpretations and each must be pursued.\u00a0 Indeed, Ms. McCartney acknowledged in cross-examination that one possible interpretation was that the MRI had been refused by someone else, but such a possibility did not occur to her at the time of her review.\u00a0 It should have.<\/p>\n

[<\/a>64]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The failure to order an MRI in a timely fashion is central to the plaintiffs\u2019 case.\u00a0 Ms. McCartney knew that Dr. Plaskos was involved in interpreting an x-ray of Ms. Lewis on January 2, 2011, as had been requested by Dr. Reesor.\u00a0 Ms. McCartney also knew that emergency department physicians will sometimes consult a radiologist as to what imaging to order or for an urgent MRI.\u00a0 These factors, and others previously addressed, meant Ms. McCartney had to consider all reasonable scenarios.\u00a0 Instead, she arrived at a conclusion without examining reasonable alternatives.\u00a0 Her analysis, in result, was incomplete.<\/p>\n

[<\/a>65]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I conclude the analysis of hospital records by Ms. McCartney was not objectively reasonable, particularly having regard to her abilities and experience as a medical malpractice lawyer.<\/p>\n

[<\/a>66]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The cause of action occurred on January 2, 2011.\u00a0 The limitation issue is with discoverability and so the presumptive limitation date of January 2, 2013 does not apply.<\/p>\n

[<\/a>67]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The statement of claim was issued on October 7, 2014.\u00a0 Was it discoverable prior to October 7, 2012?\u00a0 I conclude it was.\u00a0 The medical records were received in October 2011.\u00a0 A diligent review would have led to further inquiry.\u00a0 The potential claim against Dr. Plaskos, in my view, was discoverable by December 31, 2011 and certainly long before October 7, 2012.<\/p>\n

[<\/a>68]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In result, I conclude the limitation period had expired prior to the statement of claim being issued.\u00a0 The claim against Dr. Plaskos is statute-barred by operation of\u00a0Section 5<\/a>,\u00a0Limitations Act, 2002<\/a><\/i>.\u00a0 The claim against him must be dismissed.\u00a0 I so order.<\/p>\n<\/blockquote>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Lewis v. Plaskos is noteworthy for its findings regarding the plaintiff’s abilities and circumstances for the purposes of a discovery analysis.\u00a0 The court doesn’t often make these findings explicitly (though it should). The court found that plaintiff had the abilities of her experienced medical malpractice lawyer, and a reasonable experienced medical malpractice would be alert … Continue reading Ontario: a good “abilities and circumstances” s. 5(1)(b) analysis<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[527,144,9,70,23,222],"class_list":["post-889","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-abilities-and-circumstances","tag-discoverability-principles","tag-discovery","tag-medical-malpractice","tag-ontario-act-s-5","tag-ontario-act-s-51b"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/889","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=889"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/889\/revisions"}],"predecessor-version":[{"id":891,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/889\/revisions\/891"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=889"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=889"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=889"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}