The McKinnon v. Grand River Hospital court decision was released by the Ontario Superior Court of Justice on June 25, 2007.

Cheryl McKinnon, a single mother of three children, suffered from Thoracic Outlet Syndrome. As a result, for several years she had endured symptoms caused by the compression of her vessels and nerves. On March 22, 2002, Ms. McKinnon was operated on by a surgeon at the Grand River Hospital in Kitchener for the purpose of correcting this problem.

Difficulties arose during the surgery and Ms. McKinnon was airlifted to University Hospital in London. As a consequence of the surgery, Cheryl McKinnon suffered permanent, debilitating injuries including vascular and nerve damage.

Prior to the surgery, Ms. McKinnon was a self-supporting, single mother, who was a close companion to her children. After the surgery, she is in constant pain, lived an isolated life, withdrew from her family and children, and was not expected to ever be able to work again.

Ms. McKinnon hired a Kitchener medical malpractice lawyer and sued the surgeon and Grand River Hospital for medical malpractice.

At trial, Ms. McKinnon testified that she was told the surgery was an “in and out” procedure. She would have the operation at 9:00 a.m., which would take 30 to 35 minutes, and leave the hospital three hours later. She was not told about possible nerve damage or damage to the vein or artery. She testified she would not have agreed to the surgery had she been made aware of the risks and the potential negative outcomes of the surgery.

The court agreed that Ms. McKinnon would not have consented to the elective surgery had she known the consequences by being properly informed about it.

Various experts gave testimony as to whether the surgeon met the expected standard of care. The court commented that not every bad surgical outcome constitutes negligence or malpractice. The test was whether the surgeon met the appropriate standard of care expected of an average or normal thoracic surgeon.

The court noted that the surgeon proceeded with the surgery in Kitchener without a backup vascular surgeon. He was aware that if difficulties occurred he would have no assistance and would be left to deal with all the consequences on his own. Without assistance, he was left to resolve the problem by himself trying to stem the flow of blood with one hand while dealing with the situation with the other hand. As a result, the court found he breached the standard of care.

After examining all the details of the operation, the court found that the injuries suffered by Ms. McKinnon were caused by or materially contributed to by the negligent actions of the surgeon.

Justice Tucker stated the following: “Ms. McKinnon will never work again. She has no function of her left arm and hand. She has constant pain and has to take large amounts of narcotics. She is depressed and unable to take part in her family’s life due to her physical and psychological problems. She cannot drive or swim or even do up a zipper. She will never get better.”

The court awarded Ms. McKinnon the following damages:

• $175,000 – General damages for pain and suffering
• $37,500 – to the children of Ms. McKinnon under the Family Law Act

(The decision was silent on the amount future care costs, past and future lost income, and special damages)

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