Findlay v. Holmes, (1998) 111 O.A.C. 319 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Citation: (1998), 111 O.A.C. 319 (CA)
• Date: 25 February 1998

Findlay v. Holmes (1998), 111 O.A.C. 319 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.025

Russell Findlay, Maurice Findlay and Eva Findlay (plaintiffs/appellants) v. Dr. Frank R. Holmes (defendant/respondent)

(C21681)

Indexed As: Findlay v. Holmes

Ontario Court of Appeal

McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc)

July 3, 1998.

Summary:

Findlay suffered from chronic progressive multiple sclerosis and was treated off and on from 1978 to 1986 with prednisone. In 1989, Findlay sued his family doctor for medical malprac­tice, alleging that he suffered from steroid-induced osteoporosis.

The Ontario Court (General Division) dismissed the action, holding that it was statute-barred by s. 17 of the Health Disci­plines Act. Findlay appealed.

The Ontario Court of Appeal dismissed the appeal.

Damage Awards - Topic 360

Injury and death - Disease or illness - Caused by drug reaction - Findlay suf­fered from chronic progressive multiple sclerosis (MS) and was treated off and on from 1978 to 1986 with prednisone - Findlay sued his family doctor for medical mal­practice, alleging that he suffered from steroid-induced osteoporosis - The trial judge dismissed the action but provisionally assessed general damages of $100,000 - The Ontario Court of Appeal affirmed the decision - See paragraphs 21 to 24.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 360 ].

Medicine - Topic 3052

Relation with patient - Consent to treat­ment - Standard of disclosure by doctor - Findlay suffered from chronic progressive multiple sclerosis (MS) and was treated off and on from 1978 to 1986 with prednisone - Findlay sued his family doctor for medi­cal malpractice, alleging that he suffered from steroid-induced osteoporosis - The Ontario Court of Appeal affirmed that the doctor did not fail in his duty to disclose the risks associated with prednisone, and in any event, a reasonable patient in the plaintiff's circumstances would have taken the prednisone after a full warning of the possible side effects - See paragraphs 18 to 20.

Medicine - Topic 4242

Liability of practitioners - Negligence - Standard of care - Findlay suffered from chronic progressive multiple sclerosis (MS) and was treated off and on from 1978 to 1986 with prednisone - Findlay sued his family doctor for medical malpractice, alleging that he suffered from steroid-induced osteoporosis - The Ontario Court of Appeal affirmed that the doctor met an acceptable standard of care in the circum­stances - The court noted that prednisone was the most commonly used medication for treatment of MS at the time - The doctor's use of referrals which were fol­lowed by telephone calls and letters to consultants at the MS Clinic went beyond the standard one would have expected of a general practitioner at the time - See para­graphs 16, 17.

Medicine - Topic 4244.2

Liability of practitioners - Negligence - Treatment with or withdrawal from drugs with side effects (incl. steroids) - [See Medicine - Topic 4242 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - Findlay suffered from chronic progressive multiple sclerosis and was treated off and on from 1978 to 1986 with prednisone - Findlay sued his family doctor for medical malpractice, alleging that he suffered from steroid-induced osteoporosis - The action was commenced on February 22, 1989 - The trial judge dismissed the action, because the action was statute-barred by the one year limita­tion period in s. 17 of the Health Disci­plines Act - The trial judge held that the plaintiff had actual or deemed knowledge of the steroid induced osteoporosis by March 1987 - The Ontario Court of Appeal affirmed the decision - See paragraphs 25 to 36.

Cases Noticed:

Crits v. Sylvester (1956), 1 D.L.R.(2d) 502 (Ont. C.A.), refd to. [para. 17].

Clemens v. Brown (1958), 13 D.L.R.(2d) 488 (Ont. C.A.), refd to. [para. 25].

Peixeiro v. Haberman (1997), 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429 (S.C.C.), refd to. [para. 28].

Gaudet et al. v. Levy et al. (1984), 47 O.R.(2d) 577 (H.C.), refd to. [para. 29].

Law v. Kingston General Hospital et al. (1983), 42 O.R.(2d) 476 (H.C.), refd to. [para. 29].

Statutes Noticed:

Health Disciplines Act, R.S.O. 1990, c. H-4, sect. 17 [para. 26].

Counsel:

Kirk F. Stevens and Mary L. Macaulay, for the appellants;

Elizabeth M. Stewart, for the respondent.

This appeal was heard on February 25, 1998, before McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc), of the Ontario Court of Appeal. The following decision of the court was released by Dunnet, J.(ad hoc), on July 3, 1998.