THE FREE PRESS NEWS MAY 23, 1999 Supreme Court ruling paves way for resumption of suit By CHERYL JAHN Free Press staff writer “Elated” is how Barbara Novak of Prince George described her feelings following a decision from the Supreme Court of Canada last Thursday. The nation's highest court has ruled she can pursue litigation against her physician, Dr. Donald Bond, despite having surpassed the Limitations Act by two years. This Supreme Court decision does not, in any way, assess any alleged negligence on the part of Dr. Bond. That issue will be decided at a civil trial, which has yet to happen. Mrs, Novak's case is a long, and painful one, beginning 10 years ago. According to the facts as set out in tne Supreme Court of Canada ruling, Mrs. Novak had consulted with Dr. Bond on “at least six occasions” between October 18, 1989 and October 1, 1990, about a lump and soreness in her left breast. Each time, Dr. Bond allegedly told her that she had “mammary dysplasia” and “lumpy breasts” and that she had nothing to worry about. On October 3, 1990, Mrs. Novak was examined by a surgeon who performed a biopsy the following day. It confirmed the worst. She had cancer in her left breast. On October 9, 1990, she had a partial radical mastectomy and it was discovered that the cancer had spread to at least 12 of her 13 lymph nodes. From October 1990 until April 1991, Mrs. Novak underwent chemotherapy and radiation therapy. In late 1991, Mrs. Novak considered whether she should sue Dr. Bond. She did not consult a 7 had made up my mind that I would only seek (litigation) if I had a recurrence, if and when. If I didn’t, I wasn’t about to face the courts. I just wanted to pause and really focus on getting well. ’ Barbara Novak lawyer, but discussed the issue with her parish priest. She decided against it. “I had made up my mind that 1 would only seek (litigation) if I had a recurrence. If and when. If 1 didn’t, I wasn’t about to face the courts. I just wanted to pause and really focus on getting well.” From April 1991 to May 1995, it seemed as if she had fought the battle and won. There were no recurrences. But in May 1995, she was diagnosed with cancer of the spine, liver and lung and became aware of the actual extent of the lymph node involvement that had been found in 1990. The cancer was a recurrence of the breast cancer originally diagnosed and treated in October 1990. With that, she and her husband decided to pursue litigation against Dr. Bond. They did so on April 9, 1996. It was two years in excess of what the Limitations Act allowed. To fall within the limit set out by the statute, she would have had to commence litigation on or before April 9, 1994. The Novaks claimed only damages relating to the recurrence of cancer in May 1995 on the basis that those damages arose from Mrs. Novak’s increased susceptibility to recurrence caused or contributed to by the late diagnosis of her breast cancer. Dr. Bond successfully moved to have the action dismissed on the basis that it had gone beyond the time allowed by the Limitations Act. But, upon appeal by the Novaks, the B.C. Court of Appeal overturned that decision, and reinstated her action. Dr. Bond appealed to the Supreme Court of Canada. The issue in the nation’s highest court had nothing to do with any alleged liability. Rather, it had everything to do with the Statute of Limitations. Although the Limitation Act sets out a two-year limit “for this type of personal injury action,” another section of that same act allows for the limit to be postponed “until a properly advised reasonable person” is “able to bring an action.” The question facing the nine justices was “in light of his or her own particular circumstances and interests, at what point could the plaintiff reasonably have brought an action?” Justice Beverley McLachlin spoke for the majority: “This approach recognizes the special problems injured persons may encounter and the intense stresses and strains involved in litigation. It recognizes that in some cases, the plaintiff’s own circumstances and interests may be so compelling that it cannot be reasonably said that he or she could bring an action within the prescribed limitation period. Finally, it makes practical sense. People ought to be encouraged to take steps short of litigation to deal with their problems. They should not be compelled to sue when to do so runs counter to a vital interest, such as the need to maintain their health in the face of a life-threatening disease. “In light of the proposed test, Mrs. Novak’s concerns were so serious, substantial and compelling that, taking into account all of her circumstances and interests, she could not reasonably have commenced a suit at the time the cause of action first arose. (Her) interests and circumstances changed dramatically in May, 1995 and the circumstances that precluded a decision to sue earlier - the need to maintain a positive outlook and believe herself cured -were no longer operative. (Her) need to redress the serious wrong allegedly done to her and her consequent willingness to undergo the stresses and strains of litigation outweighed her intensely felt desire to concentrate on regaining her health. Litigation became a realistic option.” With that, the court ruled against Dr. Bond, allowing Mrs. Novak the chance to litigate. “Now we have to wait for a trial date, says Mrs. Novak. “Of course, as you know, our court system is quite backed up, so we have wait. They’re going to try to get it as soon as possible because of my health. It fluctuates. I have good days and bad days.” It will be a jury trial in Prince George, though no date has been set. Dr. Bond did not return phone calls prior to dead- THE ATTIC UNISEX SALON 2 WEEKS UNLIMITED $14.95 By Appointment Only. Drop-in $2.00 Extra Charge SUMMER STREAKS 20% off Includes Cut/Style & Conditioning WILD WEDNESDAY $10.00 Includes Shampoo & Cut f OFFERS EXPIRE JUNE 30. 19991 COMPLETE HAIR AND SKIN CARE 5th Avenue & Ospika Blvd. 563-9555 i \ ( I c As of May 20lh, the release from the Skins Lake Spillway was 1727 cubic feet per second (cfs) or 48.9 cubic metres per second (cms), and the reservoir elevation was 2788.69 feet. 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