Medical malpractice claims are among the most complex, risky and unpredictable civil claims to bring before the British Columbia court. This Court of Appeal case reveals the extent to which timing a medical negligence claim with recovery can determine the successful outcome of the case (Bell v. Wigmore, 2017 BCCA 82).
This claimant suffered tinnitus, dizziness and pain after the doctor undertook a procedure in which he syringed the claimant’s left ear while the ear was infected. Five years later the claimant required surgery for the worsening condition and filed the lawsuit 6 years after the original syringe procedure. The trial judge dismissed the case as being filed past the deadline.

The applicable limitation period in this case is two years, established by s. 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266, the statute that was in force at the time.

Sections 6(3) to 6(6) of the Limitation Act provide for the postponement of the running of the limitation period in certain circumstances which is often referred to as the “Discover-ability Rule”. The burden is on the claimant to demonstrate that the limitation period did not start to run until at least two years before the action was brought. The relevant statutory provisions are as follows:

6(3)  The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4): (a) for personal injury..(c) for professional negligence ….(4)Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action…(6)The burden of proving that the running of time has been postponed under subsections (3) and (4) is on the person claiming the benefit of the postponement.

Here is the ratio of the case,

[23]   The mere fact that injuries prove to be more severe than initially believed will not serve to postpone the running of the limitation period: Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Craig v. Insurance Corporation of British Columbia, 2005 BCCA 275. On the other hand, where it can be shown that the injuries were not, initially, sufficiently serious that a reasonable person would seek advice concerning a lawsuit, the running of the limitation period may be postponed to a time when the seriousness of the injuries became evident.

Seeking free legal advice is crucial in the weeks and months following a medical mishap. The poor outcome may not be a result of negligence but rather an error of judgment in which case a civil claim will likely fail. When and how to file the lawsuit can also be key to the successful outcome of a malpractice case.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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