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In a significant decision, the Court of Appeals held that the limitations period was tolled (or that the discoverability principal applied) where a patient suffered severe complications after surgery, but the doctor continued to treat to correct the complications.

In Brown v. Baum, 2016 ONCA 325, Diana Brown suffered complications after breast reduction surgery performed by Dr. Baum on March 25, 2009. Her wounds had opened up by the day after surgery, and Ms. Brown presented for emergency treatment numerous times over the next month. Dr. Baum ultimately performed a series of corrective surgeries, concluding on June 16, 2010.

Unhappy with the ultimate results, Ms. Brown filed suit on June 4, 2012, 38 months after the surgery in question and nearly two years after her last consultation with Dr. Baum. Dr. Baum subsequently moved for summary judgement, seeking to dismiss the action as statute barred (the limitations defence).

In the trial court, the Judge found that Ms. Brown knew she has suffered an injured by July 2009. However, the Judge found that because Dr. Baum continued to treat Ms. Brown to ameliorate her complications, “Ms. Brown did not know that a proceeding would be an appropriate means to seek to remedy to address the injury, loss or damage she had suffered.” As such, the limitations period did not commence until June 16, 2010 (the date of the last corrective surgery performed by Dr. Baum). As such, the statement of claim issued on June 4, 2012 was held to be timely.

On appeal, the Court cited a number of policy factors in support of the trial Judge’s ruling. Initially, the trial court noted that it would not have been appropriate to sue the doctor while he was trying to correct the damage, as the doctor could have been successful in correcting the complications or improving the outcome. Next, the court noted that a reasonable person in Ms. Brown’s circumstances would not consider it appropriate to sue her doctor while he was in the process of correcting his error. Had suit been brought against Dr. Baum, the court noted it was unlikely he would have continued to provide treatment.

This case serves as an important reminder that the statute of limitations is not always a clear cut issue, and that actions taken by the responsible professionals (in this case a doctor, but also likely as applicable to lawyers, engineers etc.) can serve to extent or toll the statute of limitations in professional negligence actions. While in many cases the statute of limitations is two years, you should always consult with a legal professional before accepting that your claim is barred, or that you don’t have a claim.

If you believe you have been the victim of professional negligence or legal malpractice, call 647-495-8995 to speak to our experienced malpractice lawyers today.

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