Unfortunately, medical malpractice can result in devastating outcomes for individuals and their loved ones. Negligence could result in pain and suffering, or even permanent injuries or death. It often has far-reaching implications for the victim and their family.

Sometimes in hospital malpractice cases, it can be difficult to figure out who to sue because there are often many staff members involved. This article takes a look at this problem, and how it was resolved in a recent decision of the Ontario Superior Court of Justice.

Who is liable in a hospital malpractice claim?

A problem arises through the concept of vicarious liability – while the hospital is liable for the conduct of its employees (which normally include the nurses and other staff members), it is not necessarily liable for the conduct of the doctors employed by the hospital. This is because most (but not all) doctors are considered independent contractors, rather than employees. As a result, if an injury is caused by a doctor, the hospital might not be liable and the claim will must then be brought against the doctor in their personal capacity. Sometimes it might be obvious who the doctor or doctors are, but it might be the case that multiple people have been involved in negligent conduct and sometimes it can be hard to identify them all, even when the medical records have been reviewed.

Can you amend a claim if you get the doctor’s identity wrong or omit a doctor?

When you commence an action, you need to identify named defendants in the claim, such as specific medical centres/hospitals and individual medical professionals.

If one of the named individuals turns out to be wrong, or a relevant individual was not included, it is possible to apply to the court to make a change. Under rule 5.04(2) of the Rules of Civil Procedure, at any stage of a proceeding, the court may add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. The court has the discretion to permit this kind of amendment but whether it is granted depends on the specifics of the case. 

When the plaintiff does not know who to name as the defendant, a practice has emerged of using a pseudonym like “Dr. Doe”. There will be no requirement to identify the actual defendant within the limitation period for commencing the claim, provided that the plaintiff clearly intended to sue the proposed defendant. Courts apply the so-called “litigation finger” test to determine if this is satisfied – the original claim must be drafted with sufficient particularity such that the “litigation finger” is pointing at the proposed defendant. In other words, the allegation must be clear enough so that the defendant would be able to recognize that they are the target of the allegation. 

The plaintiff initially omitted the name of one of the attending physicians

In the recent case of Spry v Southlake Regional Health Centre, Ko and Mak, the plaintiff started a lawsuit against Southlake Regional Healthcentre, a physician assistant, Mr. Ko, and an emergency physician, Dr. Mak. 

The plaintiff attended Southlake complaining of pain in her right arm and was seen by the two named defendants. She had neck x-rays and a right arm ultrasound, and was later given a prescription for pain medication and discharged. A few hours later, she attended emergency at Markham Stouffville Hospital, where she was diagnosed with acute limb ischemia. She was transferred to another hospital and underwent surgery that morning. She has been left with a permanent, serious injury to her right hand and arm.

The plaintiff commenced proceedings, arguing a negligent failure to properly assess and treat her at Southlake. Dr. Mak claimed in his statement of defence that his shift ended prior to the plaintiff’s discharge and that her care was “assumed by another emergency physician”. Later on during discovery, Dr. Mak identified some handwritten notes in the plaintiff’s medical records, as being written by Dr. Shin. The plaintiff applied to the court to add this doctor to the claim.

Court allows the addition of a doctor to the hospital malpractice claim

Dr. Shin opposed the plaintiff’s application, arguing that unlike in the “Dr. Doe” cases where an application is later brought to substitute this name for the real defendant once identified, this was an attempt to add another party after the expiry of the limitation period. He said that a reasonable person reading the statement of claim would conclude that the plaintiff intended to sue Dr. Mak only.

Justice Hurley disagreed. His Honour found that the plaintiff intended to commence a lawsuit against all the healthcare professionals who were negligent in her treatment. Dr. Mak said in the statement of defence that another doctor was involved. His Honour found that Dr. Shin would know, from the combination of the pleaded material facts and allegations, that the intended targets of the plaintiff’s claim were the physicians who treated her in the emergency department that evening, one of whom was him.

Further, his Honour found no lack of diligence on the part of the plaintiff. Her lawyers collected the records of all the hospitals where she received medical treatment and consulted an expert to assist them in identifying whether any healthcare professionals fell below the standard of care. They concluded that only one physician treated her in the emergency department at Southlake. His Honour also said there was no evidence of prejudice to Dr. Shin if he is added as a defendant now.

Justice Hurley allowed the plaintiff’s application to add Dr. Shin to the lawsuit.

Contact Tierney Stauffer LLP for Advice on Hospital Malpractice Claims 

At Tierney Stauffer LLP, we know how overwhelmed you may feel about the prospect of launching a hospital malpractice lawsuit. If you have a valid claim against a hospital, you need a strong advocate by your side to fight the hospital’s insurers and lawyers. It is important that you seek prompt advice from our personal injury lawyers, who have a great deal of experience working with clients on medical malpractice claims throughout Ontario. Call us at 1-888-799-8057 or reach out online to set up a consultation today.


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