Case Commentary – A Cosmetic Surgery Claim and the Limitation Period
In previous posts, we have discussed the basic two-year limitation period for beginning a personal injury claim. This cosmetic surgery claim illustrates how the limitation period applies when a patient received ongoing treatment following a potentially negligent procedure.
Medical malpractice claims and the limitation period
Generally speaking, victims of negligence have two years from the date they were injured to begin their claim. However, in medical negligence and cosmetic surgery claims, a patient may not realize immediately that they have suffered an injury that gives rise to a legal claim. It may be weeks, months or even years later that they discover that a medical procedure or surgery was performed negligently, and they have been permanently injured as a result. Because medical issues are complicated, and procedures always carry risks, victims only discover their claim upon examination by another doctor who can recognize the previous negligence.
The plaintiff in this case suffered severe complications following breast reduction surgery. She continued to receive treatment from her surgeon for fifteen months, undergoing further ameliorative surgery. Three years following her initial procedure, she commenced a cosmetic surgery claim, alleging that her doctor had failed to obtain informed consent for the surgery by failing to properly advise her of the possible risks and complications. The doctor attempted to have her case thrown out, since it was brought more than two years after the breast reduction. He lost the initial motion, and brought an appeal.
The Court of Appeal agreed with the motion judge. The decision noted that a reasonable person would not begin a cosmetic surgery claim while they were still undergoing corrective procedures, since the damage may be ameliorated such that a claim would be unnecessary. The plaintiff was accordingly allowed to proceed with her claim.
Legal advice about a potential cosmetic surgery claim
Although this case shows that the two year limitation period may not strictly apply where a patient is receiving ongoing treatment, patients should be mindful of the fact that the clock is running on a potential cosmetic surgery claim. If you are unsure about a potential claim, speaking to a qualified lawyer is the first step to protecting your legal rights, and does not mean you need to proceed with a lawsuit.
At Derfel Injury Law, we have decades of experience advising clients with medical negligence and cosmetic surgery claims. To discuss your situation with one of our personal injury lawyers, contact us online or call 416-847-3580 to make an appointment. For your convenience, we can meet at locations in Toronto.