many rotten teeth are encompassed by malpractice and subject
to a limitation period defence.
[ 148] For an example of how their authorities are inapplicable
or distinguishable, in support of their argument in the immediate case, the defendants rely on H. (B.) v. Dattani,  S.J.
No. 7, 315 D.L.R. (4th) 705 (C.A.), but, in my opinion, the case is
distinguishable. The facts were that at age 13 B.H. was impregnated by her father. She attended Dr. Dattani, her family doctor,
then Dr. Sheridan, an abortion counsellor, and Dr. Smith, who
performed an abortion. Six years after she reached maturity,
B.H. sued the doctors, whom she alleged knew that she did not
consent to the abortion, for assault and battery. She also sued
the doctors for breach of fiduciary duty for their failure to report
the sexual abuse by her father to the authorities. The Saskatchewan Court of Appeal upheld the decision of the motion judge
that the breach of fiduciary duty claim was statute-barred
under s. 72 of Saskatchewan’s Medical Profession Act, 1981, S.S.
1980-81, c. M.-10.1, which imposed an absolute limitation period
of two years “in any action arising out of the provision of professional services”.
[ 149] In the Court of Appeal, Justice Richards held that s. 72
applied to the fiduciary obligations claim. At paras. 34-37, he
explained his reasoning, and he stated:
The key reality in this appeal is that no one, including the Doctors, sug-
gests s. 72 of The Medical Profession Act, 1981 applies to any and every pos-
sible claim brought by a patient or former patient against his or her
physician. By way of only one perhaps obvious example, the section would
be clearly inapplicable to an action arising from circumstances where a phy-
sician, driving negligently, strikes a pedestrian who happens to be his or her
patient. . . . As a result, the challenge in resolving this aspect of the appeal
concerns the identification of the line between those situations where s. 72
applies and those where it does not.
The key to this puzzle lies in the nature of the connection between the act or
omission of the physician which is said to give rise to liability and the medical
services provided by the physician. Section 72 refers to claims “arising out of
the provision of professional services.” This suggests the act or omission complained of by the patient must be rooted in the diagnosis, treatment or other
medical services performed by or on behalf of the physician. In other words,
the act or omission must be bound into what the physician did or should have
done qua physician in the course of assisting the patient.
This sort of approach satisfactorily explains the result in cases like
Erke-lens v. Ledger [ 2 WWR 597 (Man. QB) (misinformation about insurance coverage for anxiety disorder)] and B.(D). v. Beesley [(2000), 144 Man.
R (2d) 227 (QB) (sexual assault by doctor on patient)] because in neither of
these situations did the injury in question result from the provision of medical services to the plaintiff. It also works more generally to prevent s. 72
from being applied in a way which overshoots its legislative purpose. That
purpose was not to cloak physicians with a special limitation period in