May 20, 2016

ONTARIO COURT OF APPEAL SUMMARIES (MAY 9-13, 2016)

Liu v. Wong, 2016 ONCA 366 (CanLII)

[Blair, MacFarland and Lauwers JJ.A.]

Counsel:
Songyan Liu, in person
Cynthia Kuehl and Stephen Ronan, counsel to the respondents

Keywords: Torts, Negligence, Medical Malpractice, Summary Judgment, Limitation Periods,Limitations Act, 2002, Expert Evidence, Larman v Mount Sinai Hospital

Facts:
The plaintiff/appellant alleged that the defendant negligently removed surgical staples from his right knee in September, 2011 approximately two weeks after the plaintiff received knee surgery to repair his knee following a motor vehicle accident. He alleged the defendant broke one of the staples in the process of removing them which caused him to suffer pain and bleeding, and resulted in his knee becoming permanently injured.

In October, 2012, the plaintiff was assessed by a different doctor under advisement by his lawyer bringing his tort claim arising out of the accident. The doctor concluded that the plaintiff’s knee was permanently injured and could not return to normal, but did not provide any opinion with respect to an injury that may have arisen as a result of the staple removal. The plaintiff commenced a medical malpractice proceeding against the defendant by way of statement of claim which was issued in October, 2014.

On a motion for summary judgment brought by the defendants/respondents, the motion judge dismissed the plaintiff’s action as statute barred pursuant to the 2-year limitation period in the Limitations Act, 2002, as well as for his failure to adduce and file an expert medical opinion as required in cases that involve the application of clinical skills outside the ordinary knowledge and experience of a trier of fact.

Issues:
Did the motion judge err in holding that:

(1) the plaintiff’s action was statute barred by the 2-year limitation period provided for in the Limitations Act, 2002? and

(2) this was not one of “the clearest of cases” in which no expert’s report is required to support the plaintiff’s malpractice allegations?

Holding: Appeal dismissed.

Reasoning:
(1) No. The court found the motion judge was correct in dismissing the claim on the basis that it was statute barred. It was clear that the plaintiff was fully aware that he had problems with his knee immediately following – if not during – the removal of the staples by the defendant in September, 2012.

(2) No. Despite finding it unnecessary to deal with this issue, in light of the expired limitation period, the court also agreed with the motion judge’s disposition with regard to the lack of an expert opinion. The court stated that medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, the court cited its decision in Larman v Mount Sinai Hospital, 2014, ONCA 923, for the principle that aside from “the clearest of cases” the absence of expert evidence in support of the plaintiff’s medical malpractice claim is fatal.

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.