As experienced medical malpractice lawyers, we are often approached by Nova Scotia patients who feel that they’ve been injured through the negligence of their doctor or nurse. Where the allegedly negligent treatment was several years ago, one of the first questions usually asked is: “is it too late to bring a claim?”
There are many rules and procedures governing lawsuits in Nova Scotia. Limitation periods are one of them – and they are one of the most important rules to understand when considering to start a
lawsuit. If you start a claim after a limitation period has expired, a judge can dismiss it for that reason alone (even if it has a lot of merit!). This may seem unfair, but it’s an important fact to be aware of.
In Nova Scotia, limitation periods are defined by a piece of legislation called the Limitation of Actions Act. Therein the Nova Scotia legislature has said that a lawsuit cannot be brought after two years from the day on which the claim is discovered” or “fifteen years from the day on which the act or omission on which the claim is based occurred” (whichever is earlier).
You have two years from the date you believe you were harmed by someone’s negligence to advance a lawsuit. On the surface this seems straight forward and for most cases it is. If you were injured because another driver rear-ended you in a car accident, you have two years from the date of the accident to bring a claim. If you suffered an injury because you slipped on a puddle at the grocery store, you have two years from the date you fell to bring a claim.
However often in medical malpractices cases, determining the start date (from which the two year clock starts ticking) isn’t very easy. The human body is complex and sometimes it can take a while to discover that you have a claim against a negligent doctor. A court decision released earlier this month highlights this difficulty and explains how the limitation period applicable to medical malpractice claims allows flexibility to fairly address this for a harmed patient.
The patient in Goodwin v. Nadel gave birth in 2002. During the delivery, her doctor performed an episiotomy, which resulted in a fourth degree laceration.
The patient had a long standing history of irritable bowel syndrome before the delivery. But about six weeks after the delivery, the patient’s bowel habits became worse than ever before. She began to experience fecal incontinence, frequent gas, abdomen pains, and diarrhea. Originally her doctors attributed these symptoms to her IBS and she was treated accordingly.
It wasn’t until nine-years after the birth, in 2011, when a specialist referred her for testing which confirmed that the likely cause of her severe bowel issues was “extremely poor sphincter function” caused by the trauma and treatment of the 2002 delivery.
The patient hired a medical malpractice lawyer and sued the doctor who did the delivery nine-years earlier. The doctor responded by trying to get the court to dismiss the case for having been brought outside of the two year limitation period. He argued that the clock starting ticking at the time of the delivery because she had sufficient information to base any allegations of negligence against him at that time.
The judge sided with the patient. She found that the patient did not have sufficient information to connect the injuries suffered during childbirth with her fecal incontinence until 2011. Specifically the judge wrote:
Prior to July 2011, the plaintiffs did not know (and could not reasonably have known) that what Ms. Goodwin thought was a repaired laceration at the time of the delivery, was linked to symptoms that were previously diagnosed and treated as IBS. The test results represented the material fact demonstrating that the defendant caused an injury, loss, or damage; that a proceeding would be an appropriate means to remedy the wrong of the laceration that was thought to have been repaired but that caused injury to the sphincter; and that the sphincter dysfunction was the cause of her fetal incontinence.
This case represents a very helpful precedent for patients wishing to bring medical malpractice claims when they only recently discover evidence suggestive of historical negligence that may have happened many years ago.
If you have questions about the impact of a limitation period on your injury claim, please don’t hesitate to reach out to the experienced injury lawyers at Valent Legal for a free consultation.