In the recent 2016 decision in McMillan v. Adeite and State Farm Mutual Automobile Insurance Company, the Court had to decide whether the plaintiff exercised reasonable diligence in discovering the extent of her injuries and whether this discoverability principle allowed her to extend the two year limitation period.
The case is also of interest to medical practitioners and comments on the role of patient and doctor regarding test results.
The Plaintiff was involved in a motor vehicle accident on April 14th, 2011. She was taken via ambulance to the hospital where no fractures were detected and she was discharged with medication and a referral for physiotherapy.
The Plaintiff's family doctor told her that she had soft tissue injuries and she began to receive physiotherapy and massage therapy. Later that summer, the Plaintiff was referred to a physiatrist and underwent an EMG and was also seen by a chiropractor. Almost 2 weeks later, the physiatrist ordered an MRI of the cervical spine due to the Plaintiff's continued complaints and severity of her symptoms. The MRI took place in September 2011, and the Plaintiff was not advised of the test results. During this time period, the Plaintiff's symptoms started to improve. Although the Plaintiff continued to improve, her injuries from the motor vehicle accident continued to bother her. She continued to receive treatment, but the Plaintiff was never advised the findings of her MRI, until June 2013, when she was referred back to the physiatrist, who advised her of the following:
- she had two herniated discs in her neck,
- she could not run anymore because it could cause significant damage to her spine,
- she was too young for surgery but that she might consider surgery if things got worse, and
- her condition was serious and that she should see a lawyer.
The Plaintiff retained a lawyer and the Statement of Claim was issued on September 30th, 2013. However, she had previously served Notice letters on the Defendants on April 1st and 13th, 2013.
Was it incumbent on the Plaintiff to follow up with her physiatrist to follow up on the MRI results? The Plaintiff argued that in her experience, the doctors would contact her if there were any serious findings and in 2011 following the MRI, neither her family doctor nor her physiatrist contacted her about the MRI findings.
J.C. Corkery J. found:
The diagnoses of injuries, the determination of how permanent and serious the consequence of such injuries, falls within the realm of experts. Patients and potential plaintiffs act reasonably when they defer to such experts. With respect to health care, it is unreasonable to hold patients to a higher standard of managing their care than their doctors.
However, it was also stated that even if the Plaintiff had followed up regarding the MRI results, then the Claim would have still be brought in time given that the MRI results probably would not have been available until after September 30th, 2011.
It was concluded:
Reasonable diligence does not require a patient to take steps to determine the results of an MRI ordered by a specialist that the patient has been referred to by her family doctor.
If the Plaintiff was unsuccessful in this motion, it is probable a Claim would have been commenced against the Family Doctor and Physiatrist for not advising her sooner of her condition.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
