Is a 6-Year Delay Too Long for Scheduling a Medical Malpractice Trial?

While acknowledging that some litigation moves more slowly than others, the court in a recent Ontario medical malpractice case was asked whether a lawsuit brought by a deceased patient’s husband should be dismissed outright because of the 6-year delay in moving the matter along to trial.

The man’s wife had died in 2008 during surgery. In late 2010, he sued both the hospital and the treating physicians for damages.   The hospital filed its statement of defence in mid-2011.

After that point, the progress of the matter ground slowly to a halt.

It took the physicians more than a full year to file their own statement of defence and and after that point, there was literally no movement on the file by any of the parties for another 1.5 years. Some of the lawyers on each side came and went and the file changed hands a few times.

Finally, counsel for the physicians wrote to the husband in mid-2014, asking whether he still intended to proceed.   He confirmed that he did and this sparked a flurry of correspondence over the next two years with the lawyers on both sides trying to set mutually-convenient dates for the discovery process. Eventually, the lawyers settled upon a June 2016 date for discoveries, but then could not agree on the city in which to hold them.

In late 2016, the husband received word from the court Registrar that the matter was on the brink of being administratively dismissed for undue delay. The husband promptly brought a motion for a Status Hearing to prevent the dismissal.   In order to succeed, he had to show: 1) that there was an acceptable explanation for the delay; and 2) if the action was allowed to proceed, the defendant hospital and physicians would not be prejudiced, in terms of their ability to defend that could not be monetarily addressed.

The husband explained to the court that after the wife’s death he lost his job and the family had significant financial problems. He was unable to pay his lawyer or to obtain a timely opinion from another doctor. However, he had eventually managed to secure a loan from a friend which would allow him to continue the litigation.

Although this explained the first few years’ delay to the court’s satisfaction, there were still several years during which the litigation moved at what the court called a “leisurely pace” even for a medical malpractice case. For that portion, the court placed most of the blame on the various lawyers who were required to fully co-operate with each other in setting and confirming their available dates for discoveries.

Ultimately, after considering the nature of the litigation, the husband’s explanations for his financial difficulties, and the level of co-operation between all parties and their lawyers in setting discovery dates, the court allowed the husband’s action to proceed. The court concluded that, despite the delay, there would be no prejudice to either the hospital or the individual physicians since they had had ample time to prepare their defence, and since all hospital records and needed witnesses were still available.

In the end, however, the court did impose a strict timetable for moving the matter forward, while adding that the parties were free to act even more expeditiously than the timetable proposed.