Walking through the New Errors and Omissions Minefield in Medical Malpractice Litigation

Transcription

1 Walking through the New Errors and Omissions Minefield in Medical Malpractice Litigation R. Lee Akazaki This publication first appeared in Vol. 22, 1999 of the Advocates' Quarterly "Limitation periods are not enacted to be ignored." Like Miranda in Shakespeare's The Tempest announcing her discovery of life beyond her island, the Court of Appeal for Ontario thus heralded a brave new world for medical malpractice litigation in Ontario. On July 3 and 6, 1999, the first anniversaries of the Court's decisions in Findlay v. Holmes, [1998] O.J. No. 2796, unreported, Court File No. C21681, and in Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.), have passed by without fanfare. Both unanimous decisions were authored by Dunnet J. (sitting ad hoc). The Court dramatically broadened the scope of cases in which actions must be commenced within a year of suspecting medical negligence or malpractice, whether or not the plaintiff has had the benefit of a qualified medical opinion. The One-Year Limitation under Gaudet v. Levy First anniversaries have always been heart-stopping occasions for members of the plaintiffs' medical malpractice bar. Under s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4 (now s. 89 of the Health Procedural Code under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), the legislature insulated medical doctors from any civil action arising from negligence or malpractice "unless such action is commenced one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which the person alleges negligence or malpractice." It has long been a problematic limitation, not so much because it is brief but because it is often hard to determine when it started to run or even if it has started to run at all. The legislature has not enacted limitation periods to be ignored. Perhaps more importantly, however, it did not enact them to be confusing or equivocal. Apart from public lack of awareness or attorney 1

2 negligence, however, one would not have considered actual or wanton disregard for the limitation period to have been a matter of great moment. Perhaps the Court ought to have said: "This limitation period was enacted to be abhorred." The statute of limitations for medical malpractice has long had a subjectiveobjective "discoverability" component, long before this theory of deferral of the limitation period became a fixture in the general law of limitations. As a trade-off for a very short limitation period, the provision recognizes two important aspects of the cause of action: (1) due to the therapeutic setting, the element of iatrogenic damage does not usually accrue until the patient's condition plateaus or worsens irreversibly into a "bad result" (the patient may be encouraged not to sue if he shows signs of getting better); and (2) the medical issues of the community standard of care place the facts legally out of the reach of the patient or his counsel. Until these two decisions, the plaintiffs' bar was able to rely on the following extract from White J.'s decision in Gaudet v. Levy (1984), 47 O.R. (2d) 577, at "So the issue, as 1 see it, is one of fact. Did the plaintiff know, or in all the circumstances, ought he to have known of the fact or facts upon which he alleges negligence or malpractice one year before the commencement of the action? It would seem to me, that among the facts that he would have to know would be the fact of the appropriate standard of care which the medical practitioner was required to adhere to. That fact could normally only reside in a qualified professional opinion. A lay person even with legal advice would not necessarily be deemed to have been in possession of knowledge of the standard, nor would he be deemed to have been necessarily negligent in not acquiring knowledge of the standard at any given point, even after the glimmer of hope had been raised by a discussion as between his solicitor and a consultant doctor, that he might have a case. "It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him. Section 17 of the statute imports that all of the material facts were available, or ought to have been available to the plaintiff, including the meaning of the facts in terms of duty of care appropriate to the medical practitioner. Without medical advice interpreting it, the raw medical data cannot be presumed to mean anything to a layman. Now, if after a reasonably prudent person would have formed the 2

3 judgment that he has been a victim of negligence or malpractice, he fails to commence his action within the appropriate statutory period, it would appear to me that his cause of action is barred." The court in Gaudet did not condone lax legal practice, but in fact encouraged due diligence by plaintiffs in the investigation of potential claims. It meant that clients who consulted solicitors after the incidence of the alleged malpractice could wait until they knew there was merit to the case before starting the action, provided the attempts to obtain an independent medical opinion on the standard of care were carried out with some expedition. Gaudet also stood for the proposition that the passage of this limitation period, because of the knowledge component and inherent issues of credibility, could not be the subject of a motion for summary judgment: "Essentially, whether or not the plaintiff knew, subjectively, or whether or not the plaintiff ought to have known or was negligent in not knowing, is a question of fact which can only, in my opinion, be determined by a tribunal of fact capable of hearing the witnesses as to the facts, assessing credibility, looking at all of the circumstances including the complete history of the matter and hearing expert opinion evidence, and ruling, as a question of fact, whether applying the subjective test, the plaintiff knew, or whether applying the objective test he ought to have known of "the fact or facts", contemplated in s. 17 of the Act." (ibid, at 583) The New Test(s) under Findlay and Soper: Discord with the Substantive Law The Court of Appeal in Findlay accepted only that part of the reasoning of White J. in Gaudet concerning the need for the plaintiff to act with diligence in discovering the fact or facts upon which the action is to be founded. By implication, the appellate court rejected the remainder. In Findlay, the Court stated: "It is a question of fact, depending on the circumstances of the case as a whole, as to when knowledge of the material fact or facts was acquired by the plaintiff. While in many cases, as suggested by White J. [in Gaudet v. Levy (1984), 47 O.R. (2d) 577], the facts will only become known upon receipt of a medical opinion with respect to the applicable standard of care, there will also be cases where the plaintiff will have actual or deemed knowledge of the material facts: immediately after the surgery or treatment, some time later if the results are unexpected but the plaintiff is advised to wait until the problem resolves, or upon receipt of the clinical history." (Para. 31, Emphasis added. 3

4 In Soper, the Court shifted the balance even further against the plaintiff: "Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence in requesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period." (O.R., at 744, Emphasis added.) The change from "many" to "some," from Findlay to Soper, by the same judge on identically constituted panels adds to the equation an unfortunate ambiguity. Since no intent to correct the former was expressed in the latter, no doubt this was only an editorial oversight. Because Findlay was specifically mentioned in Soper, however, the distinction invites defence counsel to argue that Soper was a further retreat from Gaudet. Beleaguered trial and motions court judges would then be left scratching their heads. It is clear that the two rulings were made based on a perception that Gaudet had become a licence to flaunt the requirements of the statutory limitation period.' The practical impact was to expose cases commenced under Gaudet, as illustrated in the two subsequent lower court decisions discussed below, to summary dismissal for having been commenced outside the limitation period, with a consequential lawyers' malpractice trap. More fundamentally, the effect on the state of the law of malpractice in Ontario was to upset an elegant harmony under Gaudet between the application of the limitation and the substantive law. Such harmony is vital to the law of limitations because the statutes are designed to provide defendants with relief against stale suits, not to frustrate claims arbitrarily. In other words, unless the statute provides otherwise, the limitation must be presumed to fit the substantive elements of the cause of action. For evidence of the disconnect between the limitation and the substantive law caused by the Court of Appeal's decisions in Findlay and Soper, one need look no further than the Findlay court's application of the new regime to the facts of the case at bar: "The evidence as a whole, therefore, leads to the inevitable conclusion that the appellant must have known of the relationship between his osteoporosis, vertebral fractures and the prednisone treatment." (para. 36) 4

5 Although causation is no doubt one of the material facts contemplated by s. 17 (s. 89), the real controversy here is not causation but the standard of care. Herein lies the underlying flaw in the attempt to retreat from Gaudet. The shift from expert to lay opinion leads the court to equate damage or causation with the cause of action. The statute requires examination of knowledge of "negligence or malpractice." Knowledge of damage 'Ironically, Findlay has recently been considered in a case outside medical litigation as authority for the proposition that "discovery of the cause of action [for the reckoning of a limitation period] may have to without knowledge of breach of standard of care is insufficient. Moreover, it is a fundamental protection to defendant doctors that liability is imposed for negligence and not misadventure, which means that knowledge of iatrogenic causation also falls short of knowledge of malpractice. In the law of medical malpractice, there is a fork early in the road where the legal burden of proof diverges between causation and standard of care. The distinction was recently expressed by the House of Lords in Bolitho v. City and Hackney Health Authority. [1997] H.L.J. No. 47 (November 13, 1997), in describing the role of the "Bolam" test, the English version of the general rule requiring the plaintiff to show that the defendant physician's conduct fell below the standard of practice of a responsible body of doctors: "Therefore the Bolam test had no part to play in determining the first question, viz. what would have happened? Nor can I see any circumstances in which the Bolam test could be relevant to such a question." (para. 20) "There were, therefore, two questions for the judge to decide on causation: (1) What would Dr. Horn have done, or authorized to be done, if she had attended Patrick?2 and (2) If she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second." (para. 22) "I emphasise that in my view it will very seldom be right for a judge to the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence." (para. 31) await delivery of expert reports": Greenaway v. Ontario (Min. of Transportation), [ O.J. No. 1289, unreported, April 14, 1999 (Gen- Div.), para The 5

6 question is thus phrased because the issue of causation arose out of the consequences of omission and delay of treatment. In Canada, the issue of proof of medical malpractice is similarly divided, although the case law remains less formulated than in England. One of the principles for which the leading case of Crits v. Sylvester, [1956] O.R. 132 (Ont. C.A.) stands is that the customary practice of medical professionals is not the final word on the standard of care. However, this and a line of Australian cases to the same effect shows the reluctance of the courts to hand over the domain of standard of care because cases such as Crits serve to remind them that custom, however widespread, can still defy common sense. Medical training has advanced since 1956, and the problems of medical error have become more technical, it would be the rare case where the medical custom (as opposed to the individual case at bar) can be determined without the aid of expert evidence. Technically, causation in medical cases is open to be decided by the court without following an expert opinion. In Snell v. Farrell (1990), 72 D.L.R. (4`h) 289 (S.C.C.), at 301 and 306, the Supreme Court of Canada held that it is not essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation, and that the court is entitled to draw an inference of causation. Snell established that the court may draw its own inferences from medical evidence and need not feel bound by an expert's opinion. It does not foresee a court making judgments about causation in the clinical setting in the complete absence of expert opinion. Snell indeed illustrates how difficult it would be for a plaintiff to prove causation, as a matter of fact and law, without the aid of some medical opinion evidence. See Brahams, "Superspecialists and the Bolam Test," The Lancet, Vol. 345 (March 4, 1995), p. 575: Akazaki, "Medical Malpractice in Crisis" (1999), 21 Adv. Q. 163, at p. 169, for a discussion of how medical advances have removed the issues in medical litigation to highly technical levels. Although Gaudet did not reach this far, a plain reading of the statutory limitation requires a recognition that medical opinions on both standard of care and causation are required before the plaintiff is possessed or could be possessed of all the elements of the cause of action. Any other interpretation of the statute offends the overriding discoverability principle, that the limitation period ought not be reckoned against the plaintiff until the plaintiff knows or ought to know of the existence of the cause of action. Commence the Action without an Expert Report at Thy Peril The facts in Soper were illustrative of the types of problems which face the lawyer 6

7 retained by a plaintiff who, typically, has come in search of legal advice after some period of self-help investigation. The role of the Ontario Legal Aid Plan can also be a factor. The following was the chronology: October, 1992 January-March, 1993 April 26, 1993 July, 1993 August, 1993 November, 1993 December 20, 1993 end of treatment under defendant's care referral to another orthopedic surgeon and treatment initial consultation with solicitor approval of investigation by Ontario Legal Aid Plan solicitor requested hospital records plaintiff's damages confirmed by her new orthopedic surgeon's advice that a high tibia] osteotomy or total knee replacement were required plaintiff's solicitor received medical records and commenced investigation of possible medical negligence by the original orthopedic surgeon January, 1994 report received from the new treating orthopedic surgeon suggesting that a total knee replacement was required June, 1994 solicitor sought approval from Legal Aid to obtain an opinion regarding medical negligence Late Fall, 1994 plaintiff instructed solicitor to discontinue investigation pursuant to the Legal Aid certificate and to retain an expert December 19, 1994 defendant underwent total knee replacement March 30, 1995 statement of claim issued May, 1995 solicitor received expert opinion of negligence by the original orthopedic surgeon The motions judge found that the plaintiff had sufficient facts to determine the existence of negligence on December 20, 1993, when the hospital records were obtained. In finding that the limitation period expired prior to the receipt of a medical opinion on the standard of care, McDermid J. attached considerable 7

8 importance to the fact that the statement of claim was issued before the medical opinion was obtained: "If the statement of claim could be issued on March 30, 1995, before the expert's report was obtained, I do not see why it could not have been issued within one year from the date upon which the hospital records were received. The fact that the statement of claim was issued before the expert report was received and contained allegations of negligence that echoed the expert opinion demonstrates that the plaintiff was already in possession of sufficient facts with which to allege negligence." (Soper, pp o.r.) The issuance of a medical malpractice statement of claim has been fraught with the risk that it may be construed as crystallizing the state of the plaintiffs knowledge as of the last significant receipt of information from an outside source. (Usually the receipt of hospital records or doctor's clinical notes.) There is an irresistible logic to the notion that a plaintiff who institutes proceedings against a doctor should be deemed to possess the knowledge of the facts. A statement of claim issued in these circumstances is, philosophically, only a formal record of a lay (non-medical) opinion. Legally, however, because an action is void for prematurity if brought before the cause of action accrues, it is legally possible to presume that the cause of action has accrued with the knowledge of the plaintiff, for the purpose of the limitation period. This argument, although it may never have been so labeled, clearly describes an operation of the doctrine of estoppel of record. Thus, if a client's case occupied a temporal grey zone where over a year has passed since the damages accrued, the nature of the limitation period, especially as construed in Gaudet, would have led a prudent solicitor to refrain from commencing an action. (If the solicitor were retained within one year of the damage, it would, by contrast, be prudent to issue a claim prior to the expiry of that year.) From an errors and omissions perspective, to commence an action under these circumstances could be considered an act of solicitor's negligence. To start an action deems the plaintiff to have had sufficient information and means to do so at that time. The inquiry then looks back in time to see when the last time there was a material change in the access to the medical evidence. If there were no changes outside a year prior to the issuance of the statement of claim, the plaintiff's action is out of time. Under Gaudet, the solicitor had the legal tools to decide the timing of the suit and avoid this landmine by holding off on formal proceedings until an expert opinion was in hand. In Soper, the solicitor "jumped the gun" in issuing the claim a few months prior to the receipt of the expert opinion on the standard of care. It is arguable that the action could not have been saved from eventual dismissal, even 8

9 under Gaudet, due to this very fact. The Court of Appeal in Soper changed the terms of reference by deciding the question, not in terms of the implications of the issuance of a statement of claim (as did the motions judge), but by postulating an expanded genus of medical cases where medical opinion is deemed unnecessary before the plaintiff knows or ought to know whether to commence an action. 4 An Ontario solicitor is now more frequently required to add to the battery of questions for his opinion yet another: whether the client's particular complaint against â doctor falls within those cases which do not call upon a medical opinion as to the standard of care. This is a perilous, even unfair question, because unless the doctor's conduct defied common sense, the format of the question itself requires a medical opinion to answer it. The analogy in the legal profession is a question which lawyers also often face. Is the client's case one which requires a lawyer, or can the client represent himself? The only one qualified to answer the question is a lawyer. The logic is reminiscent of the annoying and permanent uncertainty of a Pascal's wager. 5 In short, lawyers are now called upon to give a medical opinion. As a matter of principle, this should in turn mean that the class of cases, such as in Crits, where the court may substitute a lay opinion for the standard of care exercised by the community, should also be considered expanded. It is beyond the scope of this paper to inquire whether Findlay and Soper have in fact altered the substantive law of malpractice. 'God exists or does not exist, but only God knows and one should avoid the consequences of not believing in Him- Decisions Following Soper and Findlay The experiences of plaintiffs in two cases following Soper and Findlay show how actions commenced under the Gaudet principles are now prone to attack on summary judgment motions. Starting with the more recent case, Urquhart v. Allen Estate, [1999] O.J. No. 663, unreported, Court File No /93, was less paradigmatic because, as in Soper, proceedings were started before the expert report on liability. Relying on Soper, the motions judge held that the limitation had passed before the action was commenced, and dismissed the action. The court attached some weight to the fact that the plaintiffs' solicitor had started the action against another doctor and the hospital "without any expert advice or report." A comment by Baines J., at paragraph 20 of the reasons for judgment, suggests that the response to the motion was made by the insurer of the plaintiff's solicitor to repair the case from becoming a claim in solicitor's negligence. Nevertheless, it was unsuccessfully argued on behalf of the plaintiff that she could not have known or ought to have known the facts upon which negligence or malpractice was alleged until she (or, 9

10 more precisely, her lawyer) received the expert's opinion that the defendant doctor had breached the standard of care. This would lead one to suspect that the lawyer had in fact relied on the test in Gaudet at the outset of handling the case, albeit with faulty compliance with the standard of legal practice at that time. The decision in Urquhart was partly overturned in the Court of Appeal, [1999] O.J. No. 2985, Court File No. C The court distinguished this case from Soper by stating that it fell into the category where a medical opinion was necessary to know whether or not to institute an action. Although the plaintiff's limitation problem was repaired on this issue, the issue of due diligence was deferred to the trial judge for further argument of the motion. Without sounding a retreat from Soper, the appellate court's decision in Urquhart illustrates the difficulty in determining, according to the new case law, which cases must be started even in the absence of an expert's report, and which ought to be deferred until such a report is in hand. In Lalani v. Woolford, [1998] O.J. No. 4509, unreported, Court File No. 95-CU ; reversed in part. [1999] O.J. No Court File No. 723/98, the motions judge granted only partial judgment dismissing the claim with regard to specific allegations of negligence expressed in a complaint to the College of Physicians and Surgeons more than a year prior to the commencement of the action. This consisted of a lay opinion that "something must have gone wrong," and a statement that one of nine other doctors she consulted told her "there was nothing wrong with me that time would not heal." The motions judge declined to grant judgment on facts ascertained in medical opinions received within the one-year period. On appeal by the defendant, the Divisional Court dismissed the entire action, on the basis that the opinions filed in response to the motion did not disclose evidence that the defendant's conduct fell below the standard of care. The ostensible discontinuity in logic in the appeal decision is in fact entirely consistent with Soper and Findlay. It amounts to a holding that the opinions were not relevant to or dispositive of the state of the pursuer's knowledge. The Divisional Court distinguished the appellate decision in Urquhart on the grounds that, there, the plaintiff had ultimately obtained an opinion on negligence. Lalani appears to be a more obvious example of a plaintiff's action simply caught stranded by the Court of Appeal's new test. Practical Strategies for Malpractice Practitioners: Avoidance and Repair of Cases Caught in the E. & O. Trap The trap for malpractice lawyers is not limited to cases in which the principle in Gaudet has been followed. Unless the limitation issue can be avoided with 10

11 certainty, a solicitor who, without expert help, tries to determine the question of whether a medical opinion is required to assess liability, has already ventured into the minefield. Although each case will present its own problems, the following strategies are offered to alert members of the plaintiffs' medical malpractice bar to be sensitive to the new dangers, and to assist those engaged as counsel to repair cases where a suspicion exists that the limitation period has been missed. (1)Prevention of Solicitor's Negligence Claims Where the Lawyer is Consulted within One Year of the Accrual of Damages There is no substitute for protecting oneself from the medical malpractice client from the outset. One should address the limitation issue in every case at the beginning of the solicitor-client relationship, and make the presence or absence of a retainer absolutely clear. Where appropriate, the fact that the limitation may already have passed should be communicated to the client in writing. Lawyers are now called upon to issue a statement of claim in virtually every action in which they are retained by a plaintiff within one year of the damages being incurred. It does not matter whether or not the lawyer has an expert opinion to support it. If the limitation period were enacted to discourage stale claims, the Court of Appeal has now encouraged the commencement of spurious ones. This is an unfortunate development, but the cost of issuing a pleading is well worth the avoidance of the risk. The writ should also not be required to lapse for want of service. It should be served on the doctor within the six-month grace period. A timely letter to defence counsel will permit the plaintiff's lawyer to continue with the investigation without incurring cost consequences. (2) Soliciting an Expert Opinion on the Limitation Issue If One Year Has Already Passed since the Accrual of Damages If a client comes to the solicitor after one year has passed since the damages have been suffered, it appears now incumbent upon the solicitor to seek, on preliminary question, the opinion of an expert opinion whether the breach of standard care in question is of the type of allegation which can be made without the benefit of expert help. This may seem a radical innovation to the practice. However, failure to do so could leave the lawyer exposed to a professional negligence claim for having failed to obtain evidence to meet the limitation argument. If the lawyer is retained under a legal aid certificate, a request for authorization to obtain such an opinion should be made on an expedited basis. It is important, at all times, for the solicitor to appear diligent in the investigation, even if this calls for self-serving letters to the expert or to the legal aid office. 11

12 Because, even under Gaudet principles, the commencement of the limitation period was always open to interpretation or extension, this type of case is also capable of being repaired by counsel appointed by the plaintiff's lawyer's insurer. The test involves a question of mixed fact and law as to whether the plaintiff did or did not require an expert opinion before knowing whether there was a viable case in malpractice. Because of the fact-dependent nature of the test, it is open for the plaintiff to augment the record with an expert opinion. In repair cases, quite arguably an affidavit from a reputable expert on this narrow issue should be considered a necessary part of the plaintiff's evidentiary record in response to a defendant's motion for summary judgment or the analogous limitation defence at trial. Any defence medical reports exonerating the doctors would also provide evidence that the plaintiff could not, as a lay person, be possessed of facts regarding standard of care or causation which is the subject of dispute between recognized experts. (In this regard, defence counsel are discouraged from disclosing their expert opinions at least until the issue of a preliminary motion on the limitation period has been addressed.) (3) Conflict of Interest A potentially dangerous area of conflict between the interest of the plaintiff and his solicitor exists in cases where the solicitor is retained more than one year past the time when a court might hold that the plaintiff knew or ought to have known about the malpractice. In particular, knowledge which causes the right of action to be extinguished before the lawyer is retained would serve to exonerate the lawyer of any error or omission. By contrast, the courts are more likely to defer the reckoning of the time until after the lawyer has been hired. This is an issue which will occasionally appear in repair cases, and one must be careful not to exacerbate the plaintiff's solicitor's problems with an allegation of conflict of interest on the part of the counsel appointed to attempt the repair. Conclusion: The Long-Term Consequences of Findlay and Soper In plaintiffs' personal injury litigation, medical malpractice is a most difficult subspecialty. It stands out in that field as the only type of claim in which the odds are stacked against the plaintiff's success on the issue of liability. b Against these odds, the heavy demand for legal representation in medical malpractice claims, combined with the diminishing returns of automotive accident claims, will turn many to it who might have referred such cases to others in the past. These market forces 12

13 are bound to divert an increasing number of malpractice claims into the limitations minefield. By contrast, solicitors who are familiar with the dangers will now be much more vigilant of new cases. The net effect of Findlay and Soper is that even the most careful practitioner is not immune from missing the limitation period. In the long run, one is compelled to be critical of the Court of Appeal's decisions in these cases, not only in terms of unnecessarily upsetting a balance between the limitation and the substantive law. The public must also brace itself for an undesirable knock-on effect on medical litigation practice. For both strategic and risk-management reasons, the short limitation period will now encourage even more plaintiffs to issue writs regardless of merit. An increased number of lawyers will probably find themselves missing the limitation period, either because they failed to commence proceedings or precisely because they did. In the short term, this will include those who started law suits, reasonably and prudently following the balanced approach in Gaudet. More experienced practitioners, sensitive to the new, bolder judicial application of the limitation period, will be wise to turn away good cases which they may once have accepted or further investigated under the old régime. 13