The following provides a framework for understanding how victims of amputation are compensated for their injuries in Ontario. It also includes information on how and why courts make awards in favour of amputees who have proven that another party’s negligence caused their injury.
What is an amputation injury?
The loss of any limb has the potential to alter an individual’s life traumatically. Whether the amputation is major, such as a below-knee amputation, or minor, such as the amputation of fingers or toes, an amputee’s ability to work and enjoy their previous lifestyle is often severely compromised.
Doctors will resort to amputation when a severe injury to part of a limb may compromise the entire limb or the patient’s life. Common and devastating examples include, but are not limited to, infection, tissue damage, and blood vessel disease.
While amputation resolves these issues, amputees often deal with painful post-operative symptoms. For example, they may develop phantom limb syndrome—a cramping pain associated with their missing limb. Amputations can also lead to heterotopic ossification, where bone tissue develops into soft tissue in the amputation area. Heterotopic ossification is one example of a post-amputation condition that can lead to further surgery.
Some post-operative symptoms may be temporary, but the impact of amputation on an individual’s work and enjoyment of life can be both substantial and permanent.
How do you sue for amputation?
To pursue a claim, an amputee plaintiff must demonstrate that a defendant is liable for their amputation. This requires the plaintiff to establish that it is more likely than not that the defendant breached a duty of care they owed the plaintiff and that the breach caused the plaintiff’s injuries. These two elements of a negligence lawsuit are called breach, and causation, respectively.
For example, in Dowhan v Coates et al, 2000 CarsewellOnt (ONSC), thirty-five-year-old Ms. Dowhan visited the Defendant, Dr. Coates, for her sore foot. Ms. Dowhan had a rare disorder that caused blood clots, but Dr. Coates diagnosed her with a sprained ankle and prescribed anti-inflammatory medication. The foot pain continued to worsen, and Ms. Dowhan sought the opinion of a second doctor, who concluded there was a blood clot in her foot. Unfortunately, by the time Ms. Dowhan spoke to a surgeon, the blood clot had advanced, and her leg required amputation below the knee.
In this case, Ms. Dowhan had to prove two things. First, she had to prove that Dr. Coates did not apply a reasonable degree of skill and knowledge to his assessment of her, and that he did not exercise a reasonable degree of care. Second, she had to prove that his breach was at least one cause for her eventual amputation.
Regarding breach, Justice Brockenshire reviewed testimony from several medical experts and determined that Dr. Coates was negligent in the examination and diagnosis of Ms. Downhan. He concluded: “Dr. Coates failed to properly inform himself of the physical conditions when he had a reasonable opportunity for examination, and the true physical conditions were so apparent they could have been ascertained by the exercise of the required degree of care and skill.”
Regarding causation, Justice Brockenhsire concluded that if the blood clot had been diagnosed sooner, Ms. Dowhan could have commenced a course of anticoagulant medication and likely avoided the amputation.
If an amputee victim can prove both breach and causation, a Court will determine the value of the harm suffered.
How much is a leg amputation worth?
A major amputation, such as one below the knee, can be worth a substantial amount. To determine the appropriate range of compensation, lawyers, courts, and in many cases, accounting experts, will adopt a methodical approach to reviewing the impact of the amputation on the individual’s life. This approach makes objective considerations, such as how much the amputee has paid for their medical expenses, and subjective considerations, such as the emotional and physical discomfort they have endured. Broadly speaking, two categorical ‘heads’ of damage influence this analysis.
First, general damages focus on aspects of an amputee’s pain, suffering, and loss of enjoyment of life. If, for example, an amputee experiences recurrent instances of phantom leg syndrome, they may be compensated higher for their pain and suffering. General damages are more dependably proven when a plaintiff can provide supportive documentation, such as notes from visits with a family physician who documents the persistent complaints and limitations.
Second, special damages focus on the more objective or provable damages of a claim. For example, courts may compensate amputees if they experience past and future income loss, medical costs, out-of-pocket expenses, housekeeping, or home maintenance expenses. Unlike general damages, which has a maximum cap of approximately $420,000.00 in 2022 as established by caselaw, special damages depend solely on what the plaintiff amputee lost because of their injury.
In the previously discussed case, Dowhan v Coates et al, 2000 CarsewellOnt (ONSC), Justice Brockenshire assessed Ms. Dowhan’s damages associated with her below-knee amputation. The inflation-adjusted figures are summarized as follows:
(a) Pain and suffering $254,235
(b) Past wage loss $142,707
(c) Future lost opportunity $79,448
(d) Future housekeeping $103,283
(e) Transportation $5,695
Future lost earnings can be substantial, depending on an amputee’s age and occupation. However, plaintiffs cannot recover compensation for damages they could have reasonably mitigated. What that means is that if an amputee can continue working and this is medically supported, a court will not compensate them if they decide to stop.
The quantum of damages awarded to amputees will often come down to the fact-specific details of each case, which is why Bogoroch & Associates LLP strives to obtain compensation for our clients while also ensuring implementation of necessary lifestyle supports, including prosthesis, wheelchairs, and home assistance devices for amputees to mitigate their damages, and live as productively and safely as possible.
Since the long-term effects of an amputation can be challenging for both victims and their families, we recommend speaking with a specialized amputation lawyer as soon as possible after injury. Bogoroch & Associates LLP offers free consultations to empower the victims of amputation, and to provide access to justice. We work hand-in-hand with medical and accounting experts, as well as experts in medical rehabilitation, to obtain the best possible outcome for our clients.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.