Plaintiff waited too long to add doctors to medical malpractice suit: NB Court of Appeal

The New Brunswick Court of Appeal has dismissed a motion to add individual doctors as defendants in a medical malpractice suit because it was filed out of time.

In Larke v. Vitalité Health Network Grand Falls General Hospital, 2022 NBCA 26, Mitch Larke was taken to Vitalité Health Network Grand Falls General Hospital in Grand Falls, NB, after he fell in his home in 2016. After he was discharged from the hospital, he realized that he could not care for himself, so he was transferred to a special care home.

On April 13, 2017, Larke attended a neurology consultation with Dr. Hanni Bouma at the Doctor Everett Chalmers Hospital in Fredericton, NB. Larke discovered that he had a spinal compression that had not been diagnosed after his fall.

Larke intended to file an action against the hospital and its doctors, nurses, and other employees. He was advised by his lawyer that, generally, doctors in New Brunswick are not employees of the hospitals in which they work, and the individual doctors would have to be named as parties to the action. However, when the notice of action with the statement of claim was filed, the hospital was named as defendant but not the individual doctors.

The hospital’s solicitor provided Larke with records identifying the doctors involved in his care during his hospitalization. In its defence, the hospital denied that any doctors involved in Larke’s care were its employees.

On April 19, 2021, Larke filed a motion to have the doctors added as defendants to the action. His motion was dismissed because the action was banned by s. 5 of the Limitations of Actions Act. The judge said Larke discovered his cause of action as against the hospital and the doctors on April 13, 2017, the date of his neurology consultation.  By the time the action was filed in 2019, the two-year limitation period had already lapsed. The judge further found that Larke failed to exercise reasonable diligence in finding the material facts underlying the claim.

Court of Appeal

Larke argued that the motion judge committed an error when he decided the motion based on whether he used “reasonable diligence” in discovering the names of the doctors. This amounted to deciding a substantive issue during a procedural motion in which the sole issue for determination should only have been whether there was any prejudice to the doctors that could not have been compensated for by costs or an adjournment, Larke contended.

The court disagreed, finding that questions of reasonable diligence and discoverability were in issue once Larke received the doctors’ affidavits and briefs, and he became aware of their position. The court further found that the judge offered Larke several opportunities to adduce evidence on the issues of capacity and discoverability.

In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada set out the test respecting discoverability of a claim under s. 5 of the Act. A claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn.

In this case, the court said the limitation period began to run on April 13, 2017, when Larke was informed that he had been misdiagnosed after his fall. The court said there was no merit to Larke’s position that the limitation period only commenced when he was advised by his counsel that, in New Brunswick, doctors are not usually employees of the hospital.

The court emphasized that a limitation period is a substantive right, so the motion judge did not have the inherent power to extend it. Doing so would have denied the doctors a substantive right resulting in prejudice. Larke’s appeal was dismissed.