Medical malpractice cases are very complex.
This series of articles by BC personal injury and BC medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Find out what is involved in these difficult cases.
#2 Time Limitations in Medical Malpractice Cases
There are time limits to begin a lawsuit in BC. The time limits are set by various statutes. The primary statute governing limitation dates in BC is the Limitation Act.
If you fail to start a lawsuit before the applicable “limitation date”, your claim will likely be void (with a few exceptions).
For a BC medical malpractice claim the general limitation date is two years from the last date of the treatment that is alleged to be negligent.
The question of “when the clock starts to tick”, however, can be quite complicated.
At one time the limitation period against a doctor commonly ran from the date of medical services giving rise to the claim.
The patient had two years from the date of last treatment to commence the action. In the early 1970s much was written about how this legislation favoured the medical profession, and prejudiced the patient, particularly when the patient was unaware of the potential negligence on the part of the physician within that time period.
Today the limitation provisions respecting actions against doctors incorporate a "discovery principle". This means the time for commencing an action does not start until the patient knew or ought to have known the facts upon which the action is based. The discovery principle can extend the limitation period significantly.
A copy of the relevant sections of the BC Limitation Act are set out below;
(4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that
- (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
- (b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.
(5) For the purpose of subsection (4),
- (a) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,
- (b) "facts" include
- (i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and
- (ii) that a breach of a duty caused injury, damage or loss to the plaintiff or claimant,
- (c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and
- (d) if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person.
A child has a different time limit to begin a lawsuit. So does a person under a disability.
Statutory provisions in many Canadian jurisdictions, including BC and Alberta, require that the running of the limitation period be postponed when the plaintiff is under a disability, either by being under the age of majority or mentally incompetent.
A number of provinces have placed a “cap” on the length of time a patient may have to start an action against a physician.
The outside time limit in British Columbia, for example, is six years from the day the patient had a cause of action against the physician. In Alberta it is ten years.
These caps do not apply, however, while a patient is below the age of majority, or is suffering from a serious mental disability.
Because of these complexities, it If you feel that you may have been the victim of medical malpractice, it is important that you seek legal advice as soon as possible.
You should act soon to avoid potentially missing a limitation date, and ensure you are able to investigate the claim while witnesses and the medical records are still available.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims. Paul has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
