Superior Court Case Highlights Necessity of Experienced Medical Malpractice Lawyer

As we articulated in a blog post in March, medical malpractice is one of the most challenging and complex areas of personal injury law in Canada. Not only are there numerous challenges around funding, proving causation, retaining expert witnesses, and the Canadian Medical Protective Association’s (CMPA) rigorous defence practices, but the intense, sometimes chaotic nature of medical work can also create roadblocks.

A recent Ontario Superior Court of Justice case, Spry v. Southlake Health Centre et al., provided an example of what happens when a medical malpractice claim runs into busy emergency department clerical issues. The following information was reported by Canadian Lawyer magazine.

Spry v. Southlake Regional Health Centre et al.

In the 2018, the plaintiff in this case, Spry, visited the Southlake Regional Health Centre in Newmarket, Ontario, due to right arm pain. She was allegedly treated by a Dr. Mak, who was the attending physician on record. Dr. Mak diagnosed Spry with ‘possible neuropathic pain.’ She was prescribed medication and discharged the same night.

When the pain failed to subside, Spry attended the emergency room at Markham Stouffville hospital in Markham. There, she was diagnosed with acute limb ischemia. She underwent surgery to treat the condition, but was left with permanent, severe pain in her right arm and hand.

Upon realizing the extent of her injuries, Spry enlisted the help of a medical malpractice lawyer. Her legal team filed a claim against Southlake Regional Health Centre and Dr. Mak for the doctor’s ‘negligent failure to properly assess and treat’ her condition.

Initially, Dr. Mak was the sole physician named in the claim. However, during the examination for discovery, he claimed in his defence that his shift had ended during Spry’s visit and that another doctor, Dr. Shin, had assumed responsibility for the patient. In response, Spry’s legal team filed a motion to add Dr. Shin to the claim.

The second doctor’s legal team pushed back against the motion, arguing that Spry’s statement of claim ‘failed the litigating finger test’ – in other words that it failed to assign blame to Dr. Shin – or, alternatively, that the motion was ‘statute-barred’ due to the limitation period.

The Superior Court disagreed, reasoning that “the litigating finger test requires that the proposed defendant know from the pleaded allegations, not the material facts, that the accusatory digit is directed at them.”

The court further asserted that, because Dr. Mak was the only physician listed on the emergency department’s records, Spry’s medical malpractice lawyers didn’t show a “profound lack of diligence in ascertaining the identities” of the parties at-fault for their client’s injuries.

Regarding the argument that Spry’s motion should be refused due to it being statute barred, the court found that “a claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability of the defendant’s part can be drawn.”

The Court accepted Spry’s motion and Dr. Shin was added to the claim.

Contact a Medical Malpractice Lawyer at Will Davidson LLP

The type of complications emerging in Spry v. Southlake Regional Health Centre et al. are exactly why it’s important to contact an experienced medical malpractice lawyer when you’ve been injured in a medical setting. Once again: medical malpractice claims can be extremely complex, and a successful claim relies on a confluence of factors, including your lawyer’s ability to understand medical nuances, interface with experienced expert witnesses, and work on contingency.

Contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced medical malpractice lawyer. Our team will listen to your story, assess the viability of your claim, and explain the next steps in the legal process should we decide to move forward.

Image: Shutterstock

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