Tag: breast implant injury

$135,000 Non-Pecuniary Assessment for Ruptured Breast Implant, Chronic Physical and Psychological Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.
In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”
The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair.  In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:

[101]     In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:

1.       will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;

2.       would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and

3.       has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…

[103]     I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.

Dislodged Breast Implant and Voice Injury Result in $120,000 Non-Pecuniary Assessment

Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for breast implant disruption and a voice injury following a collision.
In last week’s case (Giczi v. Kandola) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The collision resulted in chronic soft tissue injuries, a dislodged breast implant requiring surgical correction and muscle spasms leading to voice disruption.  In assessing non-pecuniary damages at $120,000 Mr. Justice Sigurdson provided the following reasons:
[120]     In the instant case, the subject accident caused the plaintiff injuries, including: soft tissue injuries to her neck, jaw, and upper back which caused her chronic pain, functional thoracic outlet syndrome, and damage to her breast implant necessitating surgery months later.  The plaintiff’s injuries have resulted in symptoms that are significantly worse than her pre-accident condition and have affected her ability to cope and function.
[121]     I find the plaintiff suffers from a chronic pain condition which was caused by the subject accident.  Not only is the condition painful in the neck, arm and jaw, but the accident dislodged a breast implant requiring further surgery and a painful period of recovery. The chronic pain condition has also had a negative impact on the plaintiff’s relationship with her partner and the intimacy that the couple enjoyed. 
[122]     In addition, the accident has also caused difficulty in the plaintiff’s singing from muscles spasms as a result of her injury.   I find the accident’s effect on the plaintiff’s ability to sing has been profound, given the importance of singing to the plaintiff throughout her life.  The expert evidence of Ms. Davies and Dr. Morrison convinces me that her voice is impaired.  I think that this is a significant factor apart from its effect on her income earning capacity.
[123]     In all the circumstances, I find that the appropriate award of general damages is $120,000. 
 

BCSC Discusses Non-Pecuniary Damages for Ruptured Breast Impant

Reasons for judgement were released today by the BC Supreme Court discussing the value of non-pecuniary damages for a traumatically ruptured breast implant.
In today’s case (Gregory v. Penner) the Plaintiff was involved in a 2006 rear end car crash in Port Coquitlam, BC.  She suffered a variety of soft tissue injuries in this crash which largely resolved and had non-pecuniary damages valued at $30,000 for these.
The Plaintiff also suffered a more unique injury, a ruptured breast implant as a result of the forces of the crash.  The Plaintiff’s plastic surgeon, Dr. Ross Horton, gave evidence that the Plaintiff “had a blow to the left chest secondary to the motor vehicle accident which has resulted in force significant enough to rupture the saline implant and to cause some fat necrosis to the left breast.  Although the fat necrosis has improved, she has been left with a ruptured implant.  This will leave her with permanent disability with breast asymmetry.  At some point in time she should have the ruptured implant removed and replaced with a new intact implant.”
Madam Justice E.A. Arnold-Bailey had positive things to say about Dr. Horton as a witness and accepted “all of his testimony without hesitation“.
The Court went on to assess the Plaintiff’s non-pecuniary damages for the ruptured implant at $65,000.  In reaching this valuation the Court engaged in the following analysis:
[148] In the present case I accept the testimony of the plaintiff that prior to the accident she had symmetrical breasts after breast augmentation surgery.  I accept that she noticed that she had a substantially smaller left breast about three weeks after the accident, and that since the accident she had experiencing pain and burning sensations in the area of her left breast.  I further accept her evidence that at the same time she found the lump in her left breast.  Several weeks later, Dr. Horton diagnosed the lump to be a lump of necrotic fat due to trauma in the area of the ruptured left breast implant.  When I combine their evidence and consider that the plaintiff as the driver of a motor vehicle was wearing the usual shoulder/lap seatbelt across the area of her left upper body including her left breast, I find without hesitation that the plaintiff has established that the accident was at least a partial cause of rupture of the left breast implant and the associated complications.  Thus, the defendant is liable for the injuries sustained by the plaintiff to the area of her left breast, including the rupture of the implant…
[153] In relation to her ruptured left breast implant, I find that the plaintiff has experienced considerable pain, discomfort, disfigurement, and mental stress and anxiety that continue to the present time…
[161] In the present case the left implant will be replaced.  It is not known if the right implant will also have to be replaced to achieve breasts of a similar size.  The plaintiff has endured considerable pain and suffering, the painful and difficult injections of the lump of necrotic fat by Dr. Horton.  She has also had to endure the ongoing discomfort and emotional and psychological upset and distress caused by the ruptured implant remaining in her chest and the very significant disparity in the size of her breasts for a period of three years and three months.  In all the circumstances I find that a fit and proper award in non-pecuniary damages for this injury is $65,000.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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