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B.C. appeal court doubles damages against negligent surgeon

A B.C. man who broke his arm as a child has had B.C.'s Court of Appeal increase his damages from $175,000 to $360,000.
B.C.'s court of Appeal has increased damages in a case where a person experienced elbow deformity.

B.C.’s Court of Appeal has doubled the damages against a Langley orthopedic surgeon found to be negligent in treating an arm fracture.

In December 2006, Maxwell Robert Fox McKee, then five years old, broke his right arm just above the elbow.

Dr. Tracy Eugene Hicks, negligently performed a closed reduction and casting of the fracture resulting in a malunion of the bones. That created a permanent deformity of McKee’s elbow, the court said.

At trial, Hicks admitted liability. The only issue was damages, said Justice Leonard Marchand, who wrote the appeal decision for the unanimous three-judge panel.

After the trial, on Oct. 12, 2021, Justice Neena Sharma awarded $110,000 in non-pecuniary damages, including for loss of future housekeeping capacity, and $65,000 for loss of future earning capacity.

Marchand noted Sharma had found that there was a “likely risk” McKee would develop "some complications in the future."

McKee, however, challenged the loss of future earning capacity award and her decision not to make a separate award for loss of future housekeeping capacity.

Marchand said Sharma erred in failing to consider relevant economic evidence when assessing McKee’s future loss of earning capacity.

“This led her to make an inordinately low and wholly erroneous estimate of the impairment Dr. Hicks’ negligence caused to that capacity,” Marchand said. “I would set aside the judge’s award of $65,000 for loss of future earning capacity and substitute an award of $250,000.”

Marchand, however, rejected the part of the appeal regarding McKee’s loss of housekeeping capacity.

After Hicks’ treatment, in January 2007, Dr. Shafique Pirani removed McKee’s cast. It revealed an obvious deformity although significant healing had already occurred, Marchand said.

“Dr. Pirani felt it would be too risky to try to correct the deformity and it would be better to allow for further healing with the hope of remodelling in the future,” Marchand wrote.

Reassessing McKee several times, Pirani described the deformity as “cosmetically unacceptable and unsightly.” But, Pirani said, it was not causing any functional symptoms at that time.

By the age of 10, McKee had pain, tightness and an uncomfortable popping sensation in his right elbow when playing a particular video game.

In high school, McKee decided to pursue a career in the electrical trades. While still in high school, he worked at a pet store and experienced pain and tightness in his right arm, symptoms that were typically triggered by heavy lifting.

In February 2020, McKee began working as an apprentice electrician and experienced pain, tightness and a popping sensation in his elbow, state court documents.

“He was able to discharge all of his duties without missing any work due to his symptoms,” Marchand said.

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