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Medical Malpractice Case Settles for $200,000 and Claimant Entitled to Costs of Expert Reports

Medical Malpractice Costs

In this Vancouver medical malpractice lawsuit (Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC 616 ) the injury claimant settled the day before a 10 day trial for some $200,000 plus costs and disbursements.
The claimant fell while skiing at Whistler, British Columbia, fractured her leg and was taken to a clinic in Whistler. She was discharged from the clinic and sent to VGH  where she had surgery the next day. The day following the surgery the claimant complained of pain in the leg that she had fractured and which was subsequently operated on. That complaint was noted in her chart but inadequate follow-up was done.  The Claimant went on to develop a compartment syndrome which then required further surgery to remove dead tissue for her leg.
As a result of the compartment syndrome and resulting surgery the claimant suffered a permanent partial disability in the form of a dropped foot and a left big toe drop. She also had scarring and unsightliness in her left leg. the defendants made a partial admission of fault before finally settling the case.
This medical malpractice lawsuit was based on the claim that had adequate care been taken she would not have developed compartment syndrome, or it could have been diagnosed and treated sooner,  and the further surgery would not likely have been necessary.
In this assessment of costs Registrar Sainty stated, “In my view, in deciding the proper number of units to award in respect of each tariff item, I must compare this case with all of the other cases that come before the court and decide where it fits in the spectrum of them. Was it a simple, straightforward (i.e. “run of the mill”) case; or was it litigation involving numerous parties, extensive legal issues, numerous experts and involving large sums of money?”
In awarding disbursements, the expenses of  presenting the case, the Registrar  relied on her own experience in matters of a like nature when the affidavit evidence was lacking.  The Registrar also commented on the principle of proportionality our our Civil Rules stating:
“…I should also note that there is one very important difference between the former Supreme Court Rules (under which Master Horn’s decision was made) and the current Supreme Court Civil Rules.  That difference is that is under current Rule 14-1(2)(b) a registrar assessing costs is specifically directed to consider Rule 1-3, which provides:

1-3(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[136]     Thus under the Supreme Court Civil Rules I must consider proportionality. Master Baker (sitting as a registrar) noted this specifically in Stapleton v. Charambidis, 2010 BCSC 1642 at paragraph 32:

But fourthly and significantly, there are the new Rules of Court and their emphasis on proportionality.  Much of the thrust of the quest for proportionality is, of course, directed to steps and processes in the litigation itself as in, for example, the discovery of documents, limitations on examinations for discovery and, indeed, the necessity at an early stage for an overall litigation plan.  But surely this proportionality must, in appropriate circumstances, extend to disbursements expended by the parties. 

[137]     What is also the case however is that, even under the former Supreme Court Rules the case law made it clear that a registrar was required to assess whether a given disbursement was extravagant or the result of excessive caution or zeal. In making that determination, a consideration of proportionality would inevitably be involved. In McKenzie v. Darke, supra, Master Horn distinguished between the words “necessary” and “proper” in Rule 57(4). He wrote:

[17]      Rule 57(4) provides that necessary or proper disbursements and expenses shall be allowed.

[18]      There is a difference between a disbursement which is necessary and a disbursement which is proper. A “Necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not “necessary” but is reasonably incurred for the purposes of the proceeding. (For these propositions, see Fraser & Horn, Conduct of Civil Litigation in British Columbiass. 28.28 and 28.30).”

The disbursements were awarded as follows:

Description Amount Claimed Amount Awarded Tax (GST/PST/
HST)
Total
Non-taxable Disbursements        
Filing Fees $874.00 $874.00 N/A $874.00
Flight charges to Canada for Alexa and cancellation charge for Charles Temkey ($US553.21 plus US $100) $680.97 $680.97 N/A $680.97
US Clinical records (converted to $CDN)        
NYU radiology $168.93 $168.93 N/A $168.93
Dr. Weiss $51.50 $51.50 N/A $51.50
NYU physiotherapy $5.51 $5.51 N/A $5.51
Dr. Dailey $27.14 $27.14 N/A $27.14
Dr. Chang $6.57 $6.57 N/A $6.57
Utstein and Gow $37.96 $37.96 N/A $37.96
Dr. Vallarin $9.05 $9.05 N/A $9.05
Dr. Tornambe $1.16 $1.16 N/A $1.16
Dr. Rose $2.31 $2.31 N/A $2.31
Dr. Wintrob $37.80 $37.80 N/A $37.80
GHI records $57.35 $57.35 N/A $57.35
Williamsburg Physical Therapy records $11.63 $11.63 N/A $11.63
Taxable Disbursements:[6]        
Court transcript $99.00 $99.00 $4.95 $103.95
Part I documents from defence counsel $33.60 $33.60 $1.68 $35.28
Service of Documents $462.00 $462.00 $23.10 $485.10
Article purchases $141.64 $141.64 $7.08 $148.72
Travel for Dr. Nelson to attend discovery $408.38 $408.38 $20.42 $428.80
Conduct money for Jonah and Hark discoveries[7] $20.00 $20.00 N/A $20.00
Fax Charges 162 pages @ $0.35 per page $56.70 $56.70 $2.84 $59.54
Westlaw searches $360.00 $360.00 $18.00 $378.00
BC Online Charges $6.00 $6.00 $0.30 $6.30
Mediation Fees $769.11 $769.11 $38.46 $807.57
Trust Administration Fee[8] $10.00 $10.00 N/A $10.00
Court Reporter ServicesBefore July 1, 2010After July 1, 2010  $4,008.25$66.95  $4,008.25$66.95  $200.41$8.03  $4,208.66$74.98
CourierBefore July 1, 2010After July 1, 2010  $350.31$74.64  $350.31$74.64  $17.52$8.96  $367.83$83.60
Binding ChargesBefore July 1, 2010After July 1, 2010  $127.95$133.00  $127.95$133.00  $6.40$15.96  $134.35$148.96
Agency FeesBefore July 1, 2010After July 1, 2010  $208.50$36.00  $208.50$36.00  $10.43$4.32  $218.93$40.32
QuickLawBefore July 1, 2010After July 1, 2010  $234.13$210.82  $0.00$0.00  $0.00$0.00  $0.00$0.00
Service charges for US cheques $32.50 $32.50 $3.90 $36.40
CD copying $80.00 $80.00 $9.60 $89.60
Long Distance TelephoneBefore July 1, 2010After July 1, 2010  $15.34$2.38  $15.34$2.38  $0.77$0.29  $16.11$2.67
Photocopying/Printing – Internal[9]Before July 1, 2010After July 1, 2010  $11,063.00$3,355.25  $6,637.80$2,013.15  $331.89$241.58  $6,969.69$2,254.73
Printing – Colour36 pages @ $1.00/page (before July 1, 2010)10 pages @ $1.00/page (after July 1, 2010)  $36.00$10.00  $36.00$10.00  $1.80$1.20  $37.80$11.20
Expert reports:        
Brenda Williams $1,687.50 $1,597.50 N/A $1,597.50
Dr. Hershler $4,850.00 $4,850.00 $242.50 $5,092.50
Dr. James Boyle $300.00 $300.00 N/A $300.00
Dr. Younger $5,200.00 $5,400.00 $24.00 $5,424.00
Joseph HohmannBefore July 1, 2010After July 1, 2010  $3,781.50$496.25  $0.00$0.00  N/AN/A  $0.00$0.00
Dr. Marc BoyleBefore July 1, 2010After July 1, 2010  $11,295.00$3,100.00  $11,295.00$3,100.00  N/AN/A  $11,295.00$3,100.00
Mary RichardsonBefore July 1, 2010After July 1, 2010  $8,137.48$639.03  $5,208.45$639.03  $260.42$76.68  $5,468.87$715.71
Robert CarsonBefore July 1, 2010After July 1, 2010  $8,360.00$2,675.00  $2,250.00$750.00  $112.50$90.00  $2,362.50$840.00
Dr. KaushanskyBefore July 1, 2010After July 1, 2010  $2,345.00$325.00  $0.00$0.00  N/AN/A  $0.00$0.00
Canadian Clinical Records:        
Whistler Healthcare radiology $90.00 $90.00 N/A $90.00
VGH radiology $210.00 $210.00 N/A $210.00
Dr. James Boyle $295.30 $295.30 N/A $295.30
Whistler Health Care $100.00 $100.00 N/A $100.00
Dr. Turchen letter $100.00 $100.00 N/A $100.00
Total $78,370.39 $54,356.36 $1,785.99 $56,142.35

 As of the date of this article this personal injury case remains good law and has not been overturned. Posted by Mr. Renn A. Holness

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