malpractice law

Changes to the BC Limitation Act and Malpractice Law in B.C.

malpractice law

Generally, an individual must start a medical malpractice lawsuit within two years of when the malpractice occurred. This is called the basic limitation period and set out in the Limitation Act, SBC 2012 c 13 (the “New Act”) (add in something perhaps – refer to the “Limitation Periods” post). A basic limitation period cannot be postponed indefinitely.

Under the Limitation Act RSBC 1996, c. 266 (the “Old Act”), the ultimate limitation period began from the date on which the plaintiff’s right to bring an action arose. This is also known as the cause of action, which is satisfied when all of the elements that constitute the cause of action are present. This is in contrast to the New Act’s limitation period which runs from the time that the cause of action is discovered.

According to section 8 of the New Act, a claim is discovered by a person on the first date which the person knew or reasonably ought to have known all of the following:

  1. That injury, loss of damage had occurred;
  2. That injury, loss or damage was caused by or contributed to by an act or omission;
  3. That the act or omission was that of the person against whom the claim is or may be made;
  4. That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

The discovery principles will have to be considered in each claim. This adds an element of complexity not present in the Old Act.

The ultimate limitation periods are the maximum time that a basic limitation period can be extended. Prior to the New Act, the Old Act indicated that most actions against hospitals, hospital employees and medical practitioners have an ultimate limitation period of six years.

Under the New Act, the ultimate limitation period is 15 years and the clock starts running the day the act or omission took place. This means that there is no longer a six year ultimate limitation period applicable to health care claims.

Leading Caselaw on Malpractice

The leading case is Novak v. Bond, [1999] 1 SCR 808 (“Novak”). In Novak, the defendant, Dr. Bond, failed to properly diagnose the plaintiff’s breast cancer in 1989. The plaintiff, Ms. Novak, learned about the misdiagnosis in 1990 when she discovered she had breast cancer and that it may have spread. She considered suing her doctor but decided instead to focus on treatment and getting healthy. In 1995, she learned that the cancer had spread significantly. She sued Dr. Bond in 1996, clearly outside of the two year limitation period when she first learned of the misdiagnosis.

The Supreme Court of Canada found that the limitation period was postponed even though Ms. Novak knew all the facts necessary to sue Dr. Bond in 1990. The court found that in deciding whether or not to postpone the limitation period, the key finding was the limitation period was postponed until the plaintiff “could” bring an action, taking into account her own personal circumstances.

In this case, Ms. Novak’s decision not to sue early on and concentrate on her fight with cancer was considered enough to postpone the limitation period until the cancer recurred.

Although the case above was decided pursuant to the Old Act, the basic underlying principles of discoverability appear to remain the same in the New Act as compared to the Old Act.

Section 8(d) is the provision that allows judicial discretion to postpone a limitation period. Although it is worded significantly differently than the Old Act, the key question remains: should the plaintiff have known, with regard to the facts, that a court proceeding would be an appropriate remedy?

Given the decision in Novak, the courts will still have discretion to postpone a basic limitation period if there are “serious, significant, and compelling” reasons why a person, acting reasonably, would not consider a court proceeding appropriate at a given time.

The situation in Novak will likely remain a special circumstance for postponing a limitation period under the New Act.

Questions About British Columbia’s Laws?

Do you have any questions about malpractice for the team at Spraggs such as dismissal without cause? We’d love to hear from you. And, as always, if you have any questions about ICBC, motor vehicle collisions or personal injury, be sure to contact one of our ICBC lawyers in Vancouver.