Strategic Litigation Decisions And Prescription: A Cautionary Tale

Facts

On 10 April 2016, the Plaintiff was admitted to a private hospital complaining of pain in her left knee. Unbeknown to anyone at the time, the Plaintiff had suffered a ruptured aneurysm in her popliteal artery, resulting in limited blood flow to her lower left leg. The rupture went untreated for a critical period, and the condition of the Plaintiff’s leg deteriorated to such an extent that it had to be amputated above the knee on 19 April 2016.

On 14 August 2017, the Plaintiff instituted an action for damages arising from the allegedly negligent treatment she received at the hospital. The suit was initially brought against the hospital and three of the Plaintiff’s treating physicians (the First to Fourth Defendants). It became apparent from their pleas that none of the original defendants accepted direct responsibility for the treatment the Plaintiff received in the hospital’s accident and emergency department, which they said was run by the Fifth Defendant, an incorporated medical practice.

On 21 June 2018, the Plaintiff sued the Fifth Defendant, which pleaded on 5 December 2018. In its plea, the Fifth Defendant identified the Seventh Defendant as its employee who had treated the Plaintiff “in the course and scope of his duties,” and a Sixth Defendant as a locum physician not in its employ. The Plaintiff’s legal representatives made what they described as a “strategic decision” not to sue the Seventh Defendant personally, reasoning that the Fifth Defendant could be held vicariously liable for any negligence proved against him. They did, however, sue the Sixth Defendant in her personal capacity on 31 August 2020, as she was acknowledged not to be in the Fifth Defendant’s employ.

At around the same time, the Fifth Defendant amended its plea to withdraw the admission that the Seventh Defendant was its employee, now pleading that both the Sixth and Seventh Defendants were independent contractors over whom it had no control. Despite this material amendment, the Plaintiff’s legal representatives did not act upon it until June 2022, when they finally appreciated the need to sue the Seventh Defendant in his personal capacity. The summons against the Seventh Defendant was served on 22 June 2022. The Seventh Defendant raised a special plea of prescription.

Issues

The central issue the Court had to determine was whether the Plaintiff’s claim against the Seventh Defendant had prescribed. The Prescription Act (“the Act”) provides that an ordinary debt prescribes three years after it falls due. Section 12(3) of the Act provides that a debt falls due when the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises.

The Court therefore had to determine when the Plaintiff first became aware of the Seventh Defendant’s identity and his role in the chain of events leading to her injury.

Complications: the peculiarity of Prescription in this matter

What made the prescription issue peculiar in this matter was the manner in which the Seventh Defendant pleaded his special plea. While the case, in the Court’s view, turned upon two straightforward and common cause facts — that the Plaintiff became aware of the Seventh Defendant’s role in her treatment on 11 December 2018 (when the Fifth Defendant’s plea was served), and that the Plaintiff did not institute proceedings against the Seventh Defendant until 22 June 2022, some four and a half years later — the Seventh Defendant’s legal representatives overcomplicated the matter.

The Seventh Defendant persisted with the argument that the Plaintiff should be deemed to have been aware of the Seventh Defendant’s identity as early as August 2017, when the hospital records were discovered. Those records included a form signed by the Seventh Defendant, but the Court noted that the Seventh Defendant’s signature was illegible and the form did not otherwise identify him. The Seventh Defendant’s counsel argued that it was unreasonable of the Plaintiff to wait until the Fifth Defendant identified the Seventh Defendant in its plea.

The Court expressed doubt about this more ambitious argument, observing that the Plaintiff was investigating a complex chain of medical causation. The hospital had sought to shift liability onto its separately incorporated constituent practices, which in turn sought to shift liability onto the physicians working for them as independent contractors. In those circumstances, the Court held that the Plaintiff could not be criticised for seeking relief against the hospital rather than a treating physician who, at the time the medical records were received, was identified by no more than “his scrawled signature on a single sheet of paper”.

Court’s determination and reasons

The Court upheld the special plea of prescription and dismissed the Plaintiff’s claim against the Seventh Defendant. The Court’s reasoning was as follows:

The Plaintiff plainly became aware of the Seventh Defendant’s identity and his role in her treatment when the Fifth Defendant named the Seventh Defendant in its plea dated 5 December 2018, which was served on the Plaintiff’s legal representatives on 11 December 2018. The three-year prescriptive period therefore expired on 12 December 2021. Since the Plaintiff only served the summons against the Seventh Defendant on 22 June 2022, the claim had prescribed.

The Court rejected the Plaintiff’s reliance on section 12(2) of the Act. The argument that the Fifth Defendant had “wilfully prevented” the Plaintiff from discovering her cause of action by initially pleading that the Seventh Defendant was its employee was found to be misguided. The Court reasoned that the Plaintiff’s strategic decision not to sue the Seventh Defendant personally, because the Plaintiff’s representatives believed they could hold the Fifth Defendant vicariously liable, did not mean the Plaintiff was prevented from suing the Seventh Defendant in his own right. The Court further reasoned that the very decision to pursue vicarious liability against the Fifth Defendant entailed the proposition that the Plaintiff’s representatives already knew about the Seventh Defendant and his potential role in causing the Plaintiff’s injury.

Conclusion

This judgment offers important guidance in the field of medical negligence litigation on the operation of prescription, particularly regarding knowledge of a debtor’s identity under section 12(3) of the Act. It underscores that the prescriptive period begins to run from the date the plaintiff acquires knowledge of the debtor’s identity and the facts giving rise to the debt — not from the date a plaintiff makes a strategic decision to act on that knowledge. Practitioners in medical negligence matters should take careful note: when the identity of a potential defendant becomes known through the pleadings of a co-defendant, the clock starts immediately, regardless of whether the plaintiff has elected to pursue a vicarious liability strategy against another party.

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