Plaintiff had been obliged to exercise reasonable diligence to determine doctor’s identity

In 2007, minor plaintiff attended defendant clinic for treatment of wrist injury. After reviewing x-ray, defendant doctor P diagnosed possible hairline fracture and discharged plaintiff with advice to rest, ice, compress and immobilize. Although radiology report delivered to clinic several days later diagnosed displaced fracture and recommended follow-up, plaintiff claimed neither defendant ever contacted her. When pain worsened, plaintiff attended family doctor who referred her to orthopedic surgeon who performed two surgeries. Plaintiff attained majority in June 2010 and commenced action for damages in May 2012. Defendants filed statement of defence alleging radiology report had been reviewed by doctor at clinic who had then attempted to call plaintiff’s home. At examination for discovery in August 2014, P gave undertaking to determine who had made notation indicating review. In response to undertaking in February 2016, defendants advised notation had been made by doctor K. In November 2016, defendants acknowledged there was no evidence anyone had attempted to call plaintiff’s home. Plaintiff brought motion to add K as defendant. Motions judge found it reasonable to conclude plaintiff had been unable to identify K as doctor who reviewed report within limitation period with result claim was not statute-barred. Motion was granted and defendants appealed. Appeal allowed. Record included August 2013 response in which plaintiff alleged it had been some doctor other than P who had reviewed radiology report and attempted to contact her. She had clearly been aware of second doctor’s involvement at that time. She had been obliged to exercise reasonable diligence to determine doctor’s identity. She had not been entitled to simply wait for someone else to provide identity. There was no reason to extend limitation period that began to run in August 2013 beyond August 2015. Claim against K had not been brought within two years of discovery and was statute-barred.

Rumsam v. Pakes (2019), 2019 CarswellOnt 15047, 2019 ONCA 748, Doherty J.A., A. Harvison Young J.A., and Thorburn J.A. (Ont. C.A.).

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