The damages for the plaintiff with deformity caused by negligent surgery were increased by the BC Court of Appeal.
The person who is taking legal action suffered a fractured arm as a result of falling from a cabinet when they were five years old.
The BC Court of Appeal has raised the amount of compensation for a person who can no longer earn as much money after fracturing their arm and undergoing negligent surgery which caused deformity.
Maxwell McKee had a nasty fall from a kitchen cabinet at the tender age of five, and his right arm broke just above the elbow. Although he was an active child, he was soon diagnosed with ADHD at the age of nine, and type 1 diabetes soon after. To correct the fracture, Dr. Tracy Hicks performed a closed reduction and casting on his arm. Unfortunately, the process was negligently carried out and resulted in an incorrect healing of McKee's bones, leading to a deformity in his elbow.
A different specialist who focuses on children's bone and muscle problems stated that fixing the abnormality would come with significant dangers. Additionally, the surgeon clarified that the abnormality would continue to exist and could lead to future issues such as being prone to posterolateral rotary instability.
Dr. Hicks accepted responsibility. The judge in the court case granted McKee $65,000 for the loss of what he could have earned in the future and $110,000 for non-financial damages. These damages relate to the difficulties McKee may face when doing household tasks that require more physical work. The judge did not give another payment for the loss of the ability to handle household tasks in the future.
McKee requested a different judgment from the judge about the amount of money he should receive for his future ability to earn income. He also thought the judge should have given him a separate amount for his inability to do housekeeping tasks. However, the BC Court of Appeal agreed with the judge's decision about the housekeeping tasks, but they thought the judge had made a mistake in calculating McKee's future earning potential.
Last year, McKee started his apprenticeship as an electrician at Horizon Electric. Despite feeling discomfort in his elbow, which included sharp pain, tension, and a popping feeling, he managed to carry out all his job responsibilities without taking any leave due to his condition.
McKee stated that the judge made a mistake when determining the amount of compensation for the inability to earn income, as they did not use the correct guidelines to properly calculate the loss.
The court of appeal provided insight into the method that the judge utilized to determine McKee's potential decline in income prospects, which was a three-pronged approach.
The judge made a ruling that McKee passed the initial two requirements. By evaluating the opinion of a professional, the judge determined that it was probable that McKee would face "potential difficulties in the upcoming years." Moreover, the judge came to the conclusion that there is a possibility that McKee might face limitations in opportunities in the future because of these probable complications.
McKee disputed the judge's estimation of the potential cost of his prospective loss, claiming that the judge wrongly dismissed the earnings method when determining his ability to earn in the future.
The higher court concluded that the previous judge made a good decision in dismissing the income-based method and instead using the method of evaluating the capital assets. Although, the court observed that the judge neglected some significant economic evidence that could have helped calculate McKee's loss of future earning capability. Due to this oversight, the judge undervalued and inaccurately estimated the extent of McKee's loss.
The court of appeal emphasized that the $65,000 granted by the judge for the decline in future earnings only considered a small chance that McKee would need special arrangements from future employers, which could result in him working less frequently or for shorter durations. Moreover, the compensation did not account for the possibility of McKee having to change his career.
The court acknowledged that since McKee is still quite young, it's not feasible to know exactly what his future career options may be like, especially with and without having sustained injuries. However, one of the key factors that the court took into account was that due to Dr. Hick's mistakes, there was a very real chance that McKee might need to make substantial adjustments to his work arrangements, such as working part-time or for shorter durations, or perhaps even having to switch to a different career path altogether.
The legal system noted that McKee was just five years of age when he suffered a broken arm. At the time of the trial, he was already 19, and thus, the probability of complications arising in the future remained high. However, this was expected to occur when he is earning a significantly higher income as compared to when he was just starting as an apprentice.
According to the judge's assessment, McKee's ability to earn money without any injury has been affected by around 10%, which translates to $310,000. However, the judge was worried about low apprenticeship completion rates, leading to a 20% negative contingency. As a result, the court granted McKee $250,000 for his loss of future earning capacity.
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