Malpractice complaint lacking specifics is sure to fail

“Doctor, you committed malpractice. It was decades ago, and I’m not sure what you did wrong. But you must have done something. Now that I have launched a lawsuit against you, I hope you’ll tell me what it was.” This was in essence the claim made recently against an Ontario obstetrician who, back in 1991, oversaw a pregnancy that unfortunately resulted in the baby having severe brain damage.The court threw out the lawsuit. Surely, the court said, a defendant is entitled to have some indication of what he or she allegedly did wrong. Here, the plaintiff’s pleadings were merely “boilerplate”—i.e., standardized complaints.The plaintiff said the obstetrician “failed to exercise the degree of knowledge, skill and diligence he ought to have possessed” and “failed to diagnose the condition of the plaintiff.”There were 14 such bald statements, including the most generic catchall imaginable: The obstetrician “created and/or increased risk.”The plaintiff was asked for further explanation and particulars, but the plaintiff could provide none.Statute of limitationsEven if more particulars had emerged to explain what the obstetrician had allegedly done wrong, it seems likely this lawsuit would have been thrown out anyway, for a different reason: delay. The tragic events took place in 1991, and the lawsuit was formally launched in 2011. In Ontario, the statute of limitations says a lawsuit must be filed in court within two years. (The limit used to be six years, but the law was changed in 2002.)Medical malpractice is one area of law where there is a greater chance the clock won’t start right away.After all, it may well be that the injury doesn’t reveal itself until more than two years—possibly a lot more—after the alleged negligence.These discoverability issues can be complicated and vexing, but in this case it seems plainly false to imagine that a reasonable person would not discover very quickly that his or her baby had suffered severe brain damage.This lawsuit never made it far enough for issues of delay and discoverability to come before the court. Instead, the plaintiff’s pleadings were “struck,” without permission to amend them. There would have been no point in allowing for an amendment, reasoned the court, because the plaintiff had already been given the opportunity to elaborate on what exactly the obstetrician had done wrong, to no avail.In the end, the court affirmed the longstanding principle that it is not permissible to launch a generic lawsuit in the hopes the defendant will assist in building the plaintiff’s case.As the court expressed it, “Plaintiffs cannot plead boilerplate and then hope the defendant will lead them to a sustainable claim. Any statement of claim that attempts to do so must be struck.”Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues. Readers with legal news can contact him at www.rogersfamilylaw.com.

Malpractice complaint lacking specifics is sure to fail

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