Time Limits in Medical Malpractice Claim: When Does Discoverability Rule Apply?

by John McKiggan

“How Long Do I Have to File a Medical Malpractice Claim?”

As a medical malpractice lawyer in Nova Scotia, I get asked that question a lot. But the answer is rarely simple or straightforward.

Every province in Canada has a Statute of Limitations, a law that places a time-limit on how long a plaintiff can wait before filing a lawsuit in court. For example, in Nova Scotia, the time-limit for filing a medical malpractice claim is 2 years from the date of the alleged negligence or injury.

But when the time actually starts to run on a claim depends on the facts in each particualr case.

Most provinces in Canada have incorporated a “discoverability rule” into their statute of limitations. In other words, the time does not start to run until the plaintiff “discovers” facts that would lead them to believe that there may have been negligence involved in their care.

Delayed Diagnosis = Delay in Filing Claim

I read an interesting case out of Ontario recently where the defendant had pleaded that the plaintiff was out of time. In Thompson v. Sehgal et al. the plaintiff, Shawna Thompson, filed a claim against three doctors alleging they were negligent in failing to diagnose a malignant cancer in her right breast. She was diagnosed in 2007, but her breast cancer went into remission for two years. The cancer returned in 2009 and now her cancer is untreatable and her condition is terminal. She filed a medical malpractice claim in 2010.

Defendants Try to Strike Out Claim

The defendants made a motion for summary judgment. In other words, they asked the court for a preliminary ruling striking out the claim against them on the basis that the 2 year time-limit for filing a medical malpractice lawsuit had run-out.

The Ontario Rules of Court (which are the same as Nova Scotia’s Rules of Court) allow the Court to enter summary judgment where there is no “genuine issue that requires a trial”. In other words, where the law is clear and there is no issue in dispute.

The defendants argued that the fact that it had been more than two years since Ms. Thompson’s diagnosis of cancer in 2007 and therefore she statute barred from filing a medical malpractice claim.


The Court considered Ontario’s discoverability rule which says a claim is discoverable when the plaintiff first knew:

1. That the injury, loss or damage had occurred,
2. That the injury, loss or damage was caused or contributed to by an act of omission,
3. That the act of omission was the cause of person or persons against whom the claim is made,
4. That in regards to the nature of the injury, loss or damage, a proceeding would be an appropriate means to remedy it.

In the Thompson case the defendants argued that Ms. Thompson’s diagnosis of malignant breast cancer was made in March of 2007. At that point the defendants argued that the two year time-limit for filing the claim began to run.

No Cause of Action = No Delay

Justice Quiqley stated, paragraph 37:

“There was a much more important and simple reason why Ms. Thompson did not commence her claim until December of 2009. That reason was because after her cancer went into complete remission of October of 2007, Ms. Thompson had no damage, and thus had no cause of action that she could bring against the defendant physicians. She had no cause of action until the cancer returned in October of 2009.”

The Court pointed out that in order for the time-limit to start running the plaintiff must have adequate facts regarding all of the elements of a negligent claim.

Justice Quigley stated:

“The material facts of which the plaintiff must be aware before the limitation period can commence to run are those which would constitute negligence. Negligence itself is composed not only of the breach of an applicable standard of care, but also the causation to give rise to a cause of action.”

“In the present case, causation is key to the determination of material facts, because section 5 of the Limitations Act, 2002 makes clear that causation is a critical and necessary element to the existence of a claim, and thus, to the discoverability of that claim.”

Justice Quigley concluded his decision by stating:

“In a case such as this, where the focus is on delay of diagnosis, I find that the extent of the damage attributable to the delay can only be quantified once the damage or injury is known. I find that those elements could only be known in October of 2009 or after, once Ms. Thompson’s malignant breast cancer returned and the period of remission came to an end. Only then could there be a realistic assessment of material facts informing the extent to which the investigation and treatment delays that may have been caused by these defendant physicians shortened Ms. Thompson’s reasonable life expectation. The motion is dismissed.”[Emphasis added]

Tragic Result May Help Other Malpractice Victims

Ms. Thompson’s case, like most malpractice cases, is a tragic one. As a result of the defendants’ alleged negligent delay in diagnosing her breast cancer she is now going to die. She is not likely to ever see any benefit or compensation from the lawsuit that she has filed against the defendant physicians.

However, she has done a service for other victims of medical malpractice in helping to make it clearer when victims of delayed diagnosis are to pursue claims against their negligent physicians.

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