Poor treatment of childhood injury leads to $175,000 court award in Langley case

A Langley-area orthopedic surgeon has been ordered by a B.C. Supreme Court judge to pay $175,000 in damages for the negligent treatment of a child’s broken arm 15 years ago.

The incident began with a fall off a kitchen counter in December 2006 when Maxwell McKee was just five years old. He broke his right arm just above the elbow in the tumble.

McKee’s parents took him to Langley Memorial Hospital, where Dr. Tracy Eugene Hicks was the orthopedic surgeon on call.

Hicks, who admitted liability in the case, chose to treat the break with a “closed reduction,” before putting a cast on McKee’s arm. A closed reduction is manipulation to reset broken bones without surgery. Open reduction would have involved surgery to open up McKee’s arm to directly see and move the broken bone.

McKee’s mother, Stacy, had a feeling something was wrong not long after the cast went on, and she sought out a second opinion.

“Clearly, she had good instincts,” Justice Neena Sharma said in her ruling in a Vancouver courtroom on Oct. 12.

Another doctor, in New Westminster, took off the cast three weeks after the fracture and discovered a misalignment that was creating a visible deformity in McKee’s elbow, called a cubitus varus.

However, by that time, healing was too far advanced to do anything, doctors decided.

The deformity caused some self-consciousness for McKee as he grew up, but it also left him with symptoms of “popping” in his elbow, some pain, and difficulty with certain tasks, he told the court. As a child, he had issues playing certain video games, and experts testified the injury could cause issues with pushing, lifting, and carrying with that arm.

McKee, who is now an apprentice industrial electrician, argued that his life-long earning capacity will be reduced because of the injury.

Hicks’ lawyers had argued that, although the doctor admitted liability, the injury had not seriously impeded McKee’s prospects in life. They suggested that either no award for lost wages be granted, or that at most, it be $65,000

McKee’s lawyer had argued for an award of $1.5 million, arguing his ability to successfully pursue his chosen career has been seriously damaged.

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Although Sharma did not find that his earning capacity had been damaged that much, she found that there was a real impact on his career prospects, compared to if he had never been injured by the treatment. There was also a possible risk of future complications.

Sharma found that the injury had reduced McKee’s future earning capacity by $65,000, and also ruled that the doctor should pay $110,000 in non-pecuniary damages.

Finally, she ordered Hicks to pay $3,253.10 for additional health care costs McKee has incurred.

This is not the first time a civil suit involving Hicks made it to one of B.C.’s top courts. In 1993, Sandra Bryan won $374,000 in a lawsuit against Hicks, Langley Memorial Hospital, and two others after she lost much of the use of one hand following a wrist surgery performed by Hicks.

Hicks appealed the amount of damages in 1995, but the BC Court of Appeal ruled against him.