March, 25 2003
Richard Bogoroch, assisted by Linda Wolanski and Tripta Chandler, successfully represented Edward Van Dyke in a medical malpractice lawsuit. Mr. Van Dyke sustained serious injuries and the permanent destruction of his vestibular function as a result of the administration of a powerful antibiotic called Gentamycin. Most recently, the Ontario Superior Court of Justice issued its endorsement regarding the total damages and costs for this case.
Edward Van Dyke and Dorothy Van Dyke v. The Grey Bruce Regional Health Centre, Alexander Marsh, J. Ostrander, John Doe, Grey-Bruce Home Care Program and VON Grey-Bruce Branch *
Reasons for Judgment
Before: J. Van Melle
Heard: January 7-10, 13, 14, 15, 17, 20-24, 27-31. February 3, 17, March 24, 25, 2003
Appearances: Richard M. Bogoroch, Linda Wolanski and Tripta Chandler for Edward Van Dyke and Dorothy Van Dyke, and Jonathan Lisus and Thomas Sutton for the Defendants. Dr. Marsh and Dr. Ostrander and Hugh Brown and Ann Mitchell for the Defendant VON Grey-Bruce Branch
Reasons for Judgment
[1] At trial, this case proceeded against Dr. Marsh and Dr. Ostrander and the Victorian Order of Nurses (VON). At the conclusion of the co-defendants’ case, the VON brought a motion for a non-suit which was granted.
[2] In 1995 Edward Van Dyke was a reasonably healthy, fit 35 year old man. He was (and still is) married to Dorothy, with four children, Kyle, Karrie, Karlynn and Kristen. He resided in Hepworth, just outside of Owen Sound and worked as a shipper/receiver at the Beaver Lumber store (now Home Hardware) in Owen Sound. His life revolved around his family, work, church and friends.
[3] On the Victoria Day weekend in May of 1995, Mr. Van Dyke started having terrible headaches, facial pain and nausea. As a result of the severe pain in his head, Mr. Van Dyke went to the emergency department of the Wiarton Hospital. He was prescribed painkillers and oral Amoxil. Mr. Van Dyke’s symptoms did not improve and he went to his family doctor, Dr. Jane Tucker on May 25,1995. She discontinued the Amoxil and prescribed oral Clarithromycin. She also ordered a series of x-rays from the Wiarton hospital.
[4] Initially, Mr. Van Dyke responded well to the oral Clarithromycin. However, soon after, his symptoms worsened dramatically. On June 2 he went back to Dr. Tucker. Dr. Tucker was immediately concerned and arranged for Mr. Van Dyke to be admitted to the Grey Bruce hospital. She also prescribed Gentamicin and Clindmycin to be taken intravenously and called in Dr. Alexander Marsh to assist.
[5] Dr. Marsh is an Otolaryngologist who has been practising as an ENT surgeon in Owen Sound since the fall of 1985. He received an undergraduate medical degree from the University of Western Ontario in 1979. After completing a rotating internship at St Joseph’s Health Centre in London, he entered a residency program in Otolaryngology.
[6] Mr. Van Dyke presented at the Grey-Bruce Regional Hearth Centre with a serious sinus infection, which was complicated by the fact that he had been in a serious car accident in 1979. In the car accident, he suffered multiple injuries, including a depressed skull fracture, a compound fracture of the frontal sinus, a flail chest injury, severe facial lacerations and a blunt trauma to the abdomen. Both the anterior and posterior walls of his frontal sinus were shattered into multiple fragments and the dura covering his brain was pierced, causing a leakage of cerebro-spinal fluid. The traumatized area was rebuilt using bony fragments, metal wires and tissue extracted from Mr. Van Dyke’s thigh.
[7] Dr. Marsh first met Mr. Van Dyke on June 3, 1995. He concluded that Mr. Van Dyke was suffering from an infection of the soft tissue, involving the nerves in the area by inflammatory spread or compression, and that this was complicated by Mr. Van Dyke’s medical history. Dr. Marsh also feared that Mr. Van Dyke might have osteomylitis. Dr. Marsh ordered a bone and gallum scan, Dr Marsh prescribed an aggressive course of antibiotics, and continued Mr. Van Dyke on Gentamicin, as originally prescribed by Dr. Tucker.
[8] On June 3, 1995 Dr. Marsh reviewed a CT scan, which had been ordered by Dr. Tucker.
[9] On June 5, 1995 the bone scan ordered by Dr. Marsh was carried out and on June 7, 1995 a report was filed on the chart. Also, as ordered by Dr. Marsh, a gallium scan was taken on June 8, 1995.
[10] Mr. Van Dyke’s condition improved steadily until June 10th but thereafter his condition deteriorated dramatically. Dr. Chatterson, an emergency physician who added intravenous Ceftazadine and continued Gentamicin, saw him on June 11th. Dr. Chatterson requested that Drs. Marsh and Ostrander consult on June 12. Dr. March ordered a further CT scan to assess the extent of Mr. Van Dyke’s infection.
[11] Dr. Jack Ostrander was consulted to review the antibiotic therapy already prescribed, and first saw Mr. Van Dyke on June 12,1995. Dr. Ostrander is a general internist. He received his undergraduate medical degree in 1968 from the University of Western Ontario, after which he entered a five year program of internal medicine with one year of neurologic sub specialization. He has been in private practice in Owen Sound since 1974. In his consultative note, Dr Ostrander recorded the complications arising from Mr, Van Dyke’s prior motor vehicle accident and the probable diagnosis of left peri-orbital cellulitis. Dr. Ostrander concurred with the antibiotic therapy. In particular. Dr. Ostrander concurred in the prescribing of Gentamicin for Mr. Van Dyke.
[12] The CT scan of June 12, 1995, indicated an abscess in the peri-orbital region. Surgery carried out by Dr. Marsh on June 14. 1995 confirmed an abscess. The abscess was drained and a drain was inserted. Mr. Van Dyke was maintained on the antibiotic regimen, including Gentamicin.
[13] Mr. Van Dyke was discharged from the hospital on June 20, 1995. He was to continue therapy at home under the supervision of the VON.
[14] According to Mr. Van Dyke, sometime on June 30, 1995, Mr. Van Dyke experienced symptoms of dizziness. The VON learned of this on July 3 and Mr. Van Dyke was advised to contact Dr. Marsh immediately which he did. The Gentarnicin was stopped immediately.
[15| Although the Gentamicin was stopped on July 3, Mr. Van Dyke had already suffered a bilateral vestibular loss.
[16] It is acknowledged by the parties that Mr. Van Dyke suffers from a bilateral loss of his vestibular apparatus as a result of Gentamicin toxicity.
[17] Gentamicin is an aminoglycoside, a potent antibiotic which carries the risk of significant toxicities, nephrotoxicity (damage to the kidneys) and ototoxicity (damage to the inner ear.)
[18] When Gentamicin is administered, it is taken up by hair cells in the ear, some of which are associated with hearing and some with vestibular function. When it accumulates, it begins to kill the hair cells, causing loss of either hearing or vestibular function, depending on which cells are killed. The longer the patient is on the drug, the more accumulation there is and the greater the risk of injury.
[19] The Plaintiffs claim:
- that the Defendant doctors were negligent in continuing to prescribe Gentamicin after the surgery of June 14,1995;
- that the Defendants were negligent in continuing to treat Mr. Van Dyke on the basis of a diagnosis of osteomylitis when virtually all of the evidence available to them pointed otherwise;
- that the Defendants were negligent in failing to order daily monitoring by the VON;
- that the Defendants were negligent in falling to keep proper medical records of their treatment of the Plaintiff and that the Defendants were negligent in failing to property inform Mr. Van Dyke and his wife of the risk associated with the prolonged administration of Gentamicin and the availability of alternative drugs, particularly in the time period after the June 14 surgery.
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Endorsement Re: Total Damages and Costs
Van Melle. J.
Total Damages
[1] Further to my Judgment dated July 16, 2004, I asked the Plaintiffs and Defendants to provide me with additional information from their experts. (Mr. Segal for the plaintiffs and Professor Pesando for the defendants.) The calculations presented at trial were made as of September 23, 2002. I asked for additional information so that the calculations could be made as at July 16, 2003.
[2] Regarding the Past and Future Loss of Earnings calculation, I accept Professor Pestando’s calculation. His calculation uses the more detailed approached referred to by Mr. Segal, but actually carried out by Professor Pesando.
[3] I find that Mr. Van Dyke’s past loss of earnings is $233,213.00 and his future loss is $503,226.00 both as at July 16, 2003. (Note that Mr. Segal’s calculation was $207,185.00 and $530,138.00.)
[4] Mr. Segal calculated the July 16, 2003 value of the Future Care costs assuming a start date of September 23, 2002. Professor Pesando’s figure assumes a start date of July 16, 2003, the day of the Judgment. In my view, the Future Care costs should be calculated as at the date of trial, which is the date the evidence as to Future Care costs was adduced. I have taken calculations into account and by applying a pro rata formula, find that the increase should be $3,500.00 for a total of $260,908.00.
[5] Mr. Segal and Professor Pesando agree that the tax gross-up should be expressed as a percentage of the award for the future costs of care. The gross up would therefore be $67,835.00.
[6] The total award pursuant to my Judgment of July 16, 2003 is as follows:
General damages $100,000.00 FLA claim $20,000.00 Past loss of earnings $233,213.00 Future loss of earnings $503,226.00 Future care costs $260,908.00 Gross up $67,835.00 OHIP $3,881.86 TOTAL: $1,189,063.80
[7] Pre- and post-judgment interest will go in accordance with the Courts of Justice Act.
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* Please note that in 2005, the Court of Appeal of Ontario reversed the decision of the trial judge.