McSween v. Louis et al., (2000) 132 O.A.C. 304 (CA)

• Judge: Carthy, Goudge and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 05, 2000
• Jurisdiction: Ontario
• Citations: (2000), 132 O.A.C. 304 (CA);2000 CanLII 5744 (ON CA);2000 CanLII 5744 (NS CA);132 OR (3d) 304;187 DLR (4th) 446;[2000] CarswellOnt 1934;[2000] OJ No 2076 (QL);132 OAC 304;97 ACWS (3d) 327

McSween v. Louis (2000), 132 O.A.C. 304 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JN.014

Anne Marie McSween (plaintiff/respondent) v. Keith Louis (defendant/appellant) and Peel Memorial Hospital (defendant)

(C28285)

Indexed As: McSween v. Louis et al.

Ontario Court of Appeal

Carthy, Goudge and Feldman, JJ.A.

June 5, 2000.

Summary:

On February 26, 1991, the 27 year old plaintiff sustained a second degree burn to her buttock while undergoing electrocautery surgery. She sued the doctor and the hospital (the defendants). The defendants relied on the one year limitation period in s. 17 of the Health Disciplines Act (the claim was not issued until November 1992).

The Ontario Court (General Division), in a decision reported 39 O.T.C. 282, held that the action was not barred by the limitation period. The court held that the doctor was negligent. The court dismissed the action against the hospital. The court assessed damages. The defendant doctor appealed.

The Ontario Court of Appeal, Goudge, J.A., dissenting, allowed the appeal and dismissed the action.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - On February 26, 1991, the plaintiff sustained a second degree burn to her buttock while undergoing electrocau­tery surgery - On November 26, 1992, the plaintiff sued the doctor and the hospital - The doctor relied on the one year limita­tion period (Health Disciplines Act, s. 17) -The trial judge held that the action was not time barred because the plaintiff did not have the necessary facts to commence her action until she received an expert's letter (October 1992) - The Ontario Court of Appeal allowed the doctor's appeal - The expert's letter was not necessary for the plaintiff to know the material facts to allege negligence on the doctor's part - Soon after the surgery she had enough facts to know that something went wrong for which the doctor, the hospital or both were responsible - It was not necessary that she knew the injury's precise cause before the limitation period started to run -See paragraphs 1 to 20, 24 to 25.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limi­tation of Actions - Topic 15 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff underwent electrocautery surgery to remove some small skin tags or anal warts - In the course of the surgery she sustained a sec­ond degree burn to her left buttock, which became infected and caused her significant and long-term discomfort - The trial judge concluded that the burn was caused when a spark from a probe attached to the elec­trocautery machine ignited excess prepping solution that had pooled on the operating table - The solution was 70% alcohol and highly flammable - The doctor was un­aware of the ignition - The trial judge held that the doctor breached the standard of care by the careless use of the probe - The Ontario Court of Appeal affirmed the findings as to causation and the standard of care - See paragraphs 1, 29 to 35.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions -Limitation periods - [See Limitation of Actions - Topic 15 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Soper v. Southcott (1998), 111 O.A.C. 339; 39 O.R.(3d) 737 (C.A.), refd to. [para. 2].

Findlay v. Holmes (1998), 111 O.A.C. 319 (C.A.), refd to. [para. 2].

Urquhart et al. v. Jacklin et al. (1999), 124 O.A.C. 11 (C.A.), refd to. [para. 17].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 4 C.C.L.T.(2d) 229, refd to. [para. 33].

Statutes Noticed:

Health Discipline Act, R.S.O. 1990, c. H-4, sect. 17 [paras. 2, 36, footnote 1].

Regulated Health Professions Act, S.O. 1991, c. 18, sect. 89 [para. 2, footnote 1].

Counsel:

Jonathan C. Lisus, for the appellant, Louis;

Thomas C. Hendy, Q.C., for the respon­dent, McSween;

Barry Glaspell, for Peel Memorial Hos­pital.

This appeal was heard on October 12, 1999, by Carthy, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was filed on June 5, 2000, and the following opinions were filed:

Feldman, J.A. - see paragraphs 1 to 23;

Carthy, J.A. - see paragraphs 24 to 25;

Goudge, J.A., dissenting - see paragraphs 26 to 57.