If you have been injured as the result of a medical mistake, and considering a medical malpractice lawsuit, don’t hesitate before speaking to a lawyer about your claim. This year, the Ontario Court of Appeal reminded prospective plaintiffs that waiting too long to begin a medical malpractice lawsuit can defeat your right to sue.
In an earlier post, we discussed the Ontario Limitations Act and the general two year limitation period that applies to civil claims. This two year period begins at the moment that a potential claim is discovered.
“Discoverability” and Medical Malpractice Lawsuits
Ascertaining when a claim was discovered is not always straightforward. The courts have set out the principle governing discoverability in personal injury cases. Firstly, a potential plaintiff must know that someone’s act or omission resulted in an injury. Secondly, a potential plaintiff must have acted with reasonable diligence to learn the material facts of that act or omission. The two-year period begins to run on the date the plaintiff knew, or ought to have known, that the defendant’s conduct was questionable.
In the medical context, a negative outcome is not evidence of malpractice. However, patients cannot always understand whether certain actions were negligent. In some cases, plaintiffs do not discover their claim until after they speak to a qualified medical malpractice lawyer and seek an outside medical opinion.
In every case, a plaintiff must take reasonable, active steps to discovery the information necessary to begin their claim. This includes accessing medical records and seeking an expert opinion.
Dale v. Frank
This year, the Ontario Court of Appeal confirmed that a medical malpractice claim is “discoverable” when the plaintiff ought to have known of the facts on which to base a lawsuit. A plaintiff does not need to know that the defendant’s act or omission definitely caused her injuries, and must take all reasonable steps to diligently discover the necessary facts.
In Dale v. Frank, the plaintiffs had all commenced their claims many years after the treatment in question. They had not taken sufficient steps to pursue the facts and commence litigation.
A medical opinion is not necessary to discover a malpractice claim. Such an opinion will only extend the beginning of the limitation period where it contains new information that was not otherwise accessible to the plaintiff at an earlier date, and was sought with reasonable diligence after the fact.
Trustworthy legal advice for prospective medical malpractice lawsuits
If you have suffered an injury or negative outcome after a medical treatment or procedure, you may not know how to go about looking for a potential error. A skilled personal injury lawyer can help determine whether negligence caused your injuries.
Speaking to a qualified medical malpractice lawyer is the best first step to discover whether you have a claim. At Jasmine Daya & Co., our team of lawyers have decades of cumulative experience, including extensive medical malpractice work.
We offer free consultations for all new clients. Contact us online, or call our office at 416-967-9100 to make an appointment.