What is a Limitation Period and How Will it Affect my Medical Malpractice Action
Written by Jan Marin, Senior Associate & Lawyer.
When you or a loved one experiences a negative outcome following medical care, often, the last thing you are thinking about is a lawsuit. Unfortunately, the law does not allow unlimited time to decide if you want to sue. While the decision does not need to be made immediately, it is important to know about the time restrictions, which may apply. Sadly, the courts will not extend the time simply because you didn’t know the law. In this blog post, I explore how the statute of limitations interacts with medical malpractice and highlight some notable exceptions to the rules.
The basic limitation period.
In Ontario, the law is clear, you must start a lawsuit within two years of the day the claim was discovered. It is important to know that the date of discovery will be the earlier of, a) when you realize that an injury/loss has occurred, it occurred due to a specific act or admission and who caused the injury/loss, OR b) when a reasonable person ought to have known all of these things. This business of ‘ought to have known’ can be tricky!
How can a lay person possibly know following a surgery that the surgeon made a mistake, or that an obstetrician did not properly assess your unborn baby during labour or that an ER doctor should have known a stroke was occurring? In many cases, the errors made are very technical and you simply will not know right away. Sometimes patients are told that their recovery will take time, that they should be patient, and that they will be ok. These statements will typically give patients additional time to discover that there is a claim. But if you are questioning your outcome, doing research online or talking to other health professionals about your doubts a court may find that you ‘ought’ to have known an error was made. To be safe, it is always best to consult with a lawyer after a poor medical outcome. All initial consultations are free and require no long-term commitment, so it never hurts to get an additional opinion. For example, at every initial consultation, I ask many detailed questions to determine when the two-year limitation started to run. Without a doubt, it is ALWAYS best when a client comes to see me within the two years following their treatment so there is no question about a limitation period expiring.
For children who sustain injuries, the two-year basic limitation period ends two years after their 18th birthday. Typically the parents or guardians will start a suit on their child’s behalf long before their child turns 20. It is important to know that for children, the two years will start ticking if their parent or guardian signs an “Affidavit of Litigation Guardian”. A claimant must also have the capacity to be able to start the claim. If a person is not mentally, physically or psychologically capable of making legal decisions, the statutory limitation does not apply, again this applies as long as the individual does not have a litigation guardian.
Final call - the “ultimate limitation period”.
All claims (except those by minors or individuals without mental competence) are subject to an ‘Ultimate Limitation Period’ of 15 years. This means that no claim can be commenced after the 15th anniversary of the date the act or omission occurred. For example, if you have surgery and they leave a surgical instrument inside your body, which is not discovered until 16 years later, at which time you need to have surgery to remove it, I'm sorry to say that nothing can be done. No lawsuit can be brought forward.
How a lawyer can help.
As I mentioned above, it is always best to seek a legal opinion about your case as soon as you start thinking a mistake may have been made or even just because you had a very poor outcome. All limitation periods are fact-specific, and for that reason, a legal opinion is necessary to fully understand how a limitation period may be applied to your case. While it’s best to contact a medical malpractice lawyer as soon as you realize you’ve had an unexpectedly poor outcome, don’t assume you missed your chance to do something simply because the medical error or omission took place some time ago. At Gluckstein Lawyers, our commitment to full circle care always begins with a free initial consultation. If you’re in doubt about what happened, pick up the phone and give me a call. Whether you opt to file a claim or choose another way to get a sense of closure, we’re here to help you know your rights and to give you the tools you need to make an informed choice. Contact me at email@example.com for more information about whether the statute of limitations applies to your injury or a loved one’s injury.
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