Mar 23, 2021

Summary of Zoerb v Saskatoon Regional Health Authority

Zoerb v Saskatoon Regional Health Authority, 2021 SKQB 7 (CanLII)
Torts - Medical Malpractice, Limitations - Torts - Statutory Limitation Periods, Torts - Negligence - Standard of Care
The trial judge in a summary judgment application was called upon to decide whether an action against Dr. Block, a pathologist, was time-barred, and if not, whether he had met the standard of care of a general pathologist examining a tissue sample and failing to diagnose a non-malignant tumour of the jaw, known as an ameloblastoma, thereby causing the plaintiff to undergo radical surgery to her jaw. As to the matter of the relevant limitation periods, these were contained in s. 72 of The Medical Profession Act, 1981 (Act) and The Limitation of Actions Act (LAA). Pursuant to s. 72 of the Act, the action against Dr. Block was to be commenced within twelve months of the date of termination of the services complained of. Under the LAA, an action against him was to be commenced within two years from the day the claim was discovered. In this case, Dr. Block provided his diagnosis on April 27, 1990. The plaintiff learned of her true condition, that an ameloblastoma had invaded her jaw, on February 21, 2007. The plaintiff commenced her action against Dr. Block on January 29, 2009. The plaintiff had also added the Saskatoon Health Authority (Health Authority) as a defendant in the action, and the Health Authority had cross-claimed against Dr. Block in contract and pursuant to The Contributory Negligence Act.
HELD: The trial judge dismissed the plaintiff’s action against Dr. Block because the limitation period of twelve months from the date of termination of the services to the commencement of the action had expired. Established and extensive case law was clear that the principle of discoverability – that the clock did not begin to run on the twelve-month limitation period until the cause of action was discovered or should have been discovered by the plaintiff – did not apply when the clear wording of the governing legislation excluded such an interpretation, as in this case. This finding, however, did not answer the question of the time limit on the action by the Plaintiff against the Health Authority, which was governed by LAA and clearly allowed for the two-year limitation period to commence upon discovery of the claim. The trial judge was not prepared to find that the Plaintiff should have been aware of the ameloblastoma before February 21, 2007, the day she was provided with the correct diagnosis by a specialist. Though she had failed to arrange follow-up appointments as suggested by her dentist, oral specialist, and family doctor, she had been told she did not have a tumour and was an unsophisticated person who only knew she had something wrong with her jaw. The trial judge, however, after reviewing the august and extensive case authorities and the opinion of the defendant’s expert witness, dismissed the claim of the plaintiff against the Health Authority, finding that Dr. Block had met the standard of care of a general pathologist in that community in the 1990s in the manner in which he conducted his examination of the tissue sample. He dismissed the plaintiff’s argument that by not deferring to a pathologist with more experience with ameloblastoma, Dr. Block had failed to meet the legally required standard of care. He found ultimately that the plaintiff’s arguments were directed at perceived errors of judgment on the part of Dr. Block, and wrongly held him liable for the results of his error. He reasoned further that the plaintiff was wrongly advancing a standard of excellence for Dr. Block. So long as Dr. Block acted in conformity with standard medical practice at that time in that community in his examination of the tissue sample, he had fulfilled his duty of care to the plaintiff.