Estate of John Edward Graham v. Southlake Regional Health Centre: Personal Injury and Medical Malpractice

The estate of the late John Edward Graham is pressing a personal injury lawsuit on behalf of the deceased and his family against Southlake Regional Health Centre for their negligence during dental surgery. The case seeks justice for the inadequate care provided by hospital personnel.

On February 8th, 2009, John Graham tragically passed away due to medical negligence that occurred two months prior at Southlake Regional Health Centre. As a result of the oversight by doctors and staff during dental surgery on May 23rd and 24th of 2008, a sponge was left in Mr. Graham's throat leading to his untimely death. This action seeks justice for the inadequate care provided by hospital personnel on behalf of Mr. Graham’s family members who seek closure from this unfortunate event.

The Plaintiffs are now attempting to include Dr. Peter Law, a radiologist, in their lawsuit on the basis that they only became aware of their claim against him in early 2015. Notwithstanding this argument, both parties have agreed to abide by the two year limitation period set out under the Trustee Act before any action can be commenced; thus indicating that no legal proceedings related to this dispute could have been taken after February 9th 2011 (the date of death).

In the aftermath of Mr. Graham’s passing, Ms. Graham sought to obtain her late husband's medical documents from Southlake Medical Center and received around 200 pages in Fall 2008; however, there was no copy of Dr. Law's x-ray report included even though it had been referenced earlier by an emergency room doctor on a clinical consultation form. Then nearly 7 years later on February 23rd 2015, Southlake spontaneously decided to share the May 23rd 2008 x-ray image with the family without any prior request for said document.

In July of 2015, Southlake's legal professionals informed the Plaintiffs that the CD included a program to access radiologist interpretation notes. They provided no explanation as to why they disclosed this information then or how it came about.

DiTomaso J. assessed the special circumstances and fraudulent concealment doctrines, either of which would allow for modifications to pleadings in applicable situations. The judge highlighted that these equitable precepts are a constrained deviation from typical standards. When an individual pursues including someone after the statute of limitations end date has gone by, they must attempt to disprove claims of harm as well as prove why it is crucial to involve more people into this situation.

DiTomaso J. noticed a potential indication of discriminatory treatment towards Dr. Law as he was unaware of the lawsuit until after the expiration date had passed by. However, upon review of the Plaintiffs' evidence, it was determined that they successfully overcome this presumption since Dr. Law would be able to take advantage from all investigations and work carried out by his co-defendants previously.

Judge DiTomaso distinguished this case from Wisniewski v. Wismer and Wohlgemut due to the extraordinary circumstances. He noted that, instead of providing radiographs to the Plaintiffs at the beginning of their legal battle, it took over 6 years for them to learn about Dr. Law's interpretation of such records - a fact they never knew priorly.

The Plaintiffs worked tirelessly to trigger a care conference and acquire all of the relevant medical records before the litigation deadline. As it was evident that Defendants had not revealed Dr. Law's participation or radiograph until 2015, DiTomaso J concluded that these were special circumstances which justified allowing amendments to add Dr. Law as a party in the case.

Read Full Decision: https://www.canlii.org/en/on/onsc/doc/2019/2019onsc392/2019onsc392.html