Claimant never asked for medical records or proved she was incapable of suing earlier
The Ontario Court of Appeal has dismissed a patient’s claim for damages arising from a surgery because the action is barred by the 15-year limitation period.
In Taylor v. David, 2022 ONCA 200, Andrea Theresa Taylor underwent jaw surgery in 2004. The operation was performed by the respondents, Dr. Lesley David and Dr. Larry Raley at the Trillium Health Centre. Taylor alleged that the surgery was performed negligently and without her informed consent.
Taylor sought the payment of damages from the respondents, but the statement of claim was issued more than 15 years after the surgery. The motion judge dismissed Taylor’s action on the ground that it was statute-barred, pursuant to the Ontario Limitations Act 2002, which establishes a 15-year limitation period.
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However, s. 15(4) of the Act sets out certain exceptions that effectively prevent the limitation period from running, some of which Taylor invoked as defenses.
Taylor asserted that the respondents concealed information by failing to disclose her medical records. The court rejected this contention because there was no evidence that Taylor ever asked for her medical records or took any other steps to obtain them. The court also said that even if the respondents failed to provide the reports, it would not affect Taylor’s knowledge that she was suffering from an injury or damage from the surgery.
The court also rejected Taylor’s defense that she was incapable of commencing a proceeding because of her physical, mental, or psychological condition. The court found that she failed to provide sufficient evidence to support her claim.
Furthermore, Taylor’s son was a minor at the time of her surgery. Section 61(1) of the Family Law Act states that if a person is injured or killed by the fault or neglect of another, then dependents are entitled to recover their pecuniary loss resulting from the injury or death. Taylor asserted that such claims are not independent claims but are tied to the principal claim. The court disagreed, ruling that the derivative nature of such claims is established by the clear language of the law.
The court concluded that Taylor failed to prove that any of the exceptions to the 15-year limitation period applied to her, so her claim was properly dismissed by the motion judge for being statute-barred.