



COURT OF APPEAL FOR ONTARIO

CITATION:
Morin v. Korkola, 2012
    ONCA 869

DATE: 20121211

DOCKET: C53541

Weiler, Juriansz and Hoy JJ.A.

BETWEEN

Andrew Morin, Jennifer Morin, John Grimmett and Christopher
    Morin

Plaintiffs (Respondents)

and

Michael Korkola, Michael Lingley, Gordon Crawford,
    Margaret Burghardt, Terence Porter, George Doherty and The Royal Victoria
    Hospital

Defendants (Appellants)

Ryan Breedon and Brendan Gray, for the Defendants (Appellants)

Kevin Wolf and Mark Johnston, for the Plaintiffs
    (Respondents)

Heard: November 6, 2012

On appeal from the judgment of Justice Gregory M.
    Mulligan of the Superior Court of Justice, dated March 7, 2011.

ENDORSEMENT

A.

introduction

[1]

The appellant is an orthopaedic surgeon who was found to be negligent in
    his treatment of the respondents femur fracture. He advances three grounds on
    appeal: 1) the trial judge erred in concluding that he failed to meet the
    standard of care; 2) the trial judge failed to address his position on
    causation; and 3) the trial judge failed to make factual determinations
    necessary to justify the award for future loss of income.

[2]

For the reasons that follow, we dismiss the appeal.

B.

facts

[3]

The respondent was a competitive dirt bike racer. On September 19, 2001,
    he was involved in an accident and fractured his right femur. He was then 15
    years old.

[4]

The appellant is an orthopaedic surgeon at Royal Victoria Hospital who
    treated the respondent. The appellant operated on the respondent on September
    20 and stabilized his femur with three intramedullary nails. Following the
    operation, the appellant instructed the respondent to apply nothing more than
    featherweight to the leg.

[5]

After some complications, another surgeon removed one of the
    intramedullary nails on November 25, 2001. The appellant removed the final two
    nails on December 30, 2001, and new x-rays were taken.

[6]

On January 9, 2002, the respondent returned to the appellant for
    follow-up treatment. X-rays taken that day revealed some bowing in the
    respondents femur. The appellant prescribed physiotherapy and advised the
    respondent to return in six weeks.

[7]

When the respondent returned on February 20, 2002, the femur had
    bent significantly, and had healed in a deformed position. On March 12, 2002
    the appellant performed an osteotomy, realigning the femur and inserting a
    solid rod to stabilize it. The surgery was successful.

[8]

Subsequently, the respondents leg became infected and he refused
    further treatment by the appellant. On May 3, 2002, another orthopaedic surgeon
    replaced the rod in the femur and flushed out the infected area.

[9]

On December 1, 2008, the respondent was diagnosed with osteomyelitis, an
    infection of the bone. He was treated by an orthopaedic surgeon at Sunnybrook
    Hospital and he has since followed up with that doctor periodically. The
    osteomyelitis has successfully been treated, although there is a 10-20% chance
    of reoccurrence, and a 5-10% chance that the leg will need to be amputated.

C.

analysis

(1)

Standard of care

[10]

The
    trial judge found that the appellants treatment of the respondent on January
    9, 2002, fell below the standard of care of a reasonably competent orthopaedic
    surgeon. On January 9, 2002 after examining the respondent and reviewing his
    x-rays, the appellant scheduled the respondent to return in six weeks. The
    trial judge found that, had the appellant scheduled the respondent to return
    earlier, the progressive bowing of the respondents leg could have been
    arrested without surgical intervention. In making this finding, the trial judge
    relied on the expert evidence of Dr. Schatzker, who testified for the
    respondent. He said, at para. 67, I accept the evidence of Dr. Schatzker that
    there were red flags apparent to any orthopaedic surgeon on January 9, 2002
    which required Andrew to be monitored closely and to be returned for x-rays
    within a week or so of that event.

[11]

The
    trial judge explained his conclusion in paragraph 66 of his reasons:

On January 9, 2002 Dr. Korkola [the appellant] scheduled Andrew
    [the respondent] to return in six weeks. If Andrew had returned within a week
    or so, a further series of x-rays could have been taken to monitor any
    progressive bowing that may have appeared as compared to the x-rays of December
    30, 2001 and January 9, 2002. I accept Dr. Schatzker's undisputed evidence
    that, at that point in time, the opportunity still existed to repair the
    fracture by non-invasive surgery by inserting a intramedullary rod through the
    medullar canal. After six weeks the fracture had healed in a deformed position.
    I accept Dr. Schatzker's undisputed evidence that the fracture could not be
    repaired using the previously described non-invasive method, and that the best
    option was the more invasive osteotomy.

[12]

The
    trial judge was fully entitled to prefer the testimony of the respondents
    expert over that of the plaintiffs expert and the plaintiff himself. The trial
    judges conclusion that the appellant failed to meet the standard of care on January
    9, 2002 by scheduling the respondent to return in six weeks rather than
    monitoring him closely was fully supported by the evidence.

(2)

Causation

[13]

The
    appellant submits that the trial judge erred by failing to address whether the
    bowing in his right femur was caused by the respondent placing too much weight
    on his leg, contrary to the appellants instructions. We do not accept this
    argument. It is not clear that the argument advanced here was advanced at trial
    and, in any event, we were not persuaded that the evidence supported such a
    theory.

(3)

Damages

[14]

We
    see no merit in the attack on the trial judges award for future loss of
    income. The appellants expert estimated the respondents future economic loss at
    $1,017,408, but as the trial judge pointed out, had not factored in any
    consequences of the original fracture. At trial the appellant took the position
    most, if not all, of the plaintiffs ongoing limitations were caused by the
    original fracture and submitted that his future loss should be quantified at $4,362.
    The respondents position was that the future loss should be quantified at
    $350,000.

[15]

The
    trial judge made an award of $60,000 and explained how he arrived at that
    figure. He took into consideration the evidence that the osteomyelitis could
    flare up in the future, requiring one or more surgeries. He noted that the
    respondent planned to return to school and pursue a career as a wildlife
    technician. To allow for the respondents absence from the work force to a
    flare up of osteomyelitis in the future, he assessed his future income loss at
    $120,000. Finally, as he was satisfied that the original femur fracture would
    have affected the respondents ability to work throughout his lifetime, he
    reduced this amount by fixing the appellants liability for the loss at 50%, to
    arrive at $60,000.

[16]

The
    assessment of future loss involves guesswork in the best of circumstances.
    Here, on the record before him, the trial judges reasons were fit for the
    purpose, given the appellants evidence and position at trial.

D.

Conclusion

[17]

The
    appeal is dismissed. Costs in favour of the respondent are fixed in the amount
    of $20,000, all inclusive, in accordance with the agreement of counsel.

K.M. Weiler J.A.

R.G. Juriansz J.A.

Alexandra Hoy J.A.


