What is the discoverability test in medical malpractice cases?
Ontario, Canada
The following excerpt is from Spry v. Southlake Regional Health Centre et al., 2022 ONSC 1783 (CanLII):
Most often, the discoverability inquiry focusses on the plaintiff’s knowledge of the existence of a potential legal claim, not the identity of the potential tortfeasor. It is not always an easy task in a medical malpractice claim to descry the negligent actor: Loy-English at para. 18. Material facts include not only the awareness of what went wrong and why but also who was responsible: Lawless v. Anderson, 2011 ONCA 102 at para. 30.
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