Discoverability and Medical Negligence Claims

The information below is for general information purposes only and should not be relied upon as legal advice. Limitation Periods vary by each specific case and province. If you or a family member has a concern about a potential limitation period, please speak with us.

Patients who have been injured due to medical error must be aware of timelines (i.e. limitation periods) that may affect their medical malpractice claims.   A person who has been injured (or their family) has a limited time in which to bring a lawsuit to obtain financial compensation for losses or damages suffered as a result of that injury. Claims filed outside of that time limit may not be permitted. However, even if you think that too much time has passed since the incident, it is never too late to speak with a lawyer to find out more information about your case.

In Ontario, the time limit for filing a personal injury claim is generally two years from the date the claim was discovered or was reasonably discoverable (i.e.- two years from the time in which the incident or event leading to the injury occurred). Medical malpractice claims, however, are specialized personal injury claims to which different timelines may apply.

Medical malpractice claims are not always discoverable when the injury occurs. Patients or families may not be immediately aware that the injury and related consequences or symptoms were caused by negligent acts of a health care provider. The law has recognized the discoverability challenges that families affected by medical malpractice may face and permits the extension of the limitation periods for filing a claim. In particular, the law permits the limitation period to be triggered only where the patient, or their lawyer, discovers the facts underlying a cause of action, or the patient ought to have been able to discover those facts through “reasonable diligence”. This is known as the discoverability principle.

The Discoverability Principle

The so-called “discoverability principle” consists of two critical elements:

• The patient’s knowledge that someone made an error, resulting in an injury; and
• Whether the patient acted diligently to discover the material facts leading to that error.

Whether a patient knows enough facts to lead to an allegation of negligence, such that an action is “discoverable”, is a fact-based question. It will depend on whether the patient, or their lawyer, knew enough facts on which to be able to base a negligence allegation. It is intended to be a rule of fairness, permitting injured patients to be able to gather sufficient information to be able to file a claim.

In some cases, courts have stated that a medical opinion that a doctor’s care was substandard will be necessary in order to discover whether the injury suffered was due to medical error by a doctor or other healthcare provided and to, therefore, know whether a claim can be filed. Patients may require access to their medical records, in order to gather sufficient facts and information. In other cases, it may be possible to know the underlying facts without obtaining a medical opinion.

Patients are required to act proactively in order to acquire sufficient facts and information on which to file a medical malpractice claim.

Limitation Periods and Minors/Disabled Individuals

A notable exception to standard limitation periods are situations involving minors or individuals with disabilities. For injured minors under the age of 18, the presumptive rule is that the limitation period (ie: the two-year clock) does not begin to run until that minor turns 18. However, if the child has a cognitive impairment, the limitation period may be extended even longer. Any minor, or person under disability, in Ontario must be represented by a litigation guardian. A litigation guardian is any person above the age of majority (18) who can represent the minor in litigation and ensure their interests are protected. The litigation guardian is often the parent or loved one of an injured child or person under disability.

If you or your child have been seriously injured due to negligence or a medical error, contact Sommers Roth & Elmaleh. We are highly respected in both the medical and legal fields and offer compassionate and knowledgeable guidance on every aspect of a medical malpractice claim, and have helped clients from all across Canada, including Ontario, Alberta, British Columbia, Saskatchewan, Quebec and Newfoundland. Call us at 1-844-777-7372 or contact us online for a free consultation.