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John McKiggan Q.C.
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When Can Pleadings Be Amended in Medical Malpractice Claims? Hunt v. Lee et al

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What is a Statute of Limitation and Why is it Important?

Court deadlines are a part of medical malpractice claims. Perhaps the most important deadline is what is known as the "statute of limitations". In Nova Scotia the legislation is called the Limitation of Actions Act. This is the first deadline that any medical malpractice victim comes up against. The Statute of Limitation creates a time limit for the malpractice victim to file their lawsuit after they have been harmed.

Claim May be Statute Barred

In other words, if you want to file a malpraqctce claim, you have a set amount of time to file the claim with the court or your right to file a lawsuit. If you don’t meet the deadline, your right to file a claim may be barred forever!

How Do You Know When the Negligence Happened?

But as anyone who has been the victim of medical malpractice knows, it isn’t always easy to pinpoint when the malpractice occurred. Sometimes treatment can go on for months before you realize there was a problem.

Other times, you might immediately know of a problem, but don’t know why or what the doctor did wrong. Or perhaps you have to talk to another expert first to learn that your doctor made a mistake.

Maybe you’ve even gone so far as to file a lawsuit and only then do you discover some other mistake your doctor made. These types of issues can come up all the time in medical malpractice litigation as illustrated by a recent decision from Manitoba, Hunt v. Lee et al.

The case in question was brought by Mrs. Hunt after her husband died, allegedly as a result of medical malpractice related to heart surgery. The main issue in the case was whether the plaintiff could amend her original complaint filed to the court after the limitations period had already run out. To understand this issue and how the court resolved it, it is helpful to know a little bit about the case:

The defendant performed heart surgery on Mr. Hunt in January of 2008, with a second, related, surgery occurring on February 2, 2008. Mr. Hunt passed away as a result of complications on April 15, 2008. All of the parties agreed that the limitations clock began ticking on the date of Mr. Hunt’s death, thus meaning that the plaintiff had until April 15, of 2010 to file a claim. The plaintiff met this deadline, filing her claim in February of 2010.

New Information Leads to New Claims

So if the plaintiff met the deadline, what exactly was the problem? Well, just as the limitations period was about to expire, an expert witness hired by the plaintiff alerted them to some additional issues with how the doctor performed the surgery and how the nurse treated Mr. Hunt afterwards.

The plaintiff wanted to add these newly-discovered issues to the claim. So the plaintiff asked the court for permission to amend their claim. And therein lies the problem: by the time the plaintiff wanted to add the new information, the statute of limitations period had expired.

Claim Filed in Time but New Allegations Out of Time

The court was faced with the question of whether allowing the plaintiff to amend her claim was permissible. Ultimately, the court ruled in favor of the plaintiff and allowed her to add the new information to her claim.

In reaching that decision, the court addressed an important issue that can easily arise in medical malpractice cases: How to deal with the fact that a plaintiff may not immediately know whether a defendant doctor or hospital acted negligently.

In other words, because medicine is so complex, a doctor’s negligent behavior may not be easily apparent to a plaintiff within the 2-year limitations period.

For example, in this case, while Mrs. Hunt knew about some of the negligent acts within months of her husband’s death, it wasn’t until an expert cardiac specialist reviewed the medical records and studied that case that other examples of negligence became evident to her.

In cases like these, the court has the discretion to allow plaintiffs a little extra time. In the Hunt case the court ruled that the information was relevant and material and allowed the plaintiff an additional 12 months from the time she discovered the information to amend her complaint.

The Manitoba court ruled that the plaintiff was entitled to the 12 month extension even if she discovered the new information before the original limitation period expired.