Four years after tearing cartilage in his knee while leaping from an armoured vehicle, Cpl. William Gardner underwent the last in a string of orthopedic procedures to fix the problem. As the surgeon cut away a wedge of bone and installed a metal plate, however, he accidentally severed key blood vessels, cutting off circulation and eventually requiring the leg to be amputated above the knee.
It was a horrific outcome, but did Cpl. Gardner lose his leg as a result of military duty?
The Canadian Forces’ insurer said no, but a judge has overturned that decision, ordering that Cpl. Gardner receive a $125,000 dismemberment benefit — the same paid to soldiers whose legs were blown off by Taliban IED blasts.
The ill-fated surgery and subsequent amputation “arose out of his military service,” concluded Justice Timothy Ray of the Ontario Superior Court in a ruling this month.
It may not have been a classic military injury, but there should be no question that the 32-year-old deserves compensation, said Wayne Johnston, founder of the group Wounded Warriors Canada.
“There’s some moral obligation, for God’s sake,” said Mr. Johnston, whose organization advocates for veterans suffering mental and physical injuries. “If there is even a shadow of a doubt, it should be to the benefit of the soldier … Had he not have originally injured himself, this wouldn’t have happened.”
Cpl. Gardner, a member of the Royal Canadian Dragoons when the knee injury occurred, could not be reached for comment and William Walker, his Belleville, Ont.-based lawyer, refused to talk about the case. Gordon Jermane, lawyer for Manulife, which administers the policy, did not return calls.
It is unclear whether the soldier has also filed a medical malpractice lawsuit against the orthopedic surgeon from Collingwood, Ont., who performed the operation.
According to the judgment, Cpl. Gardner suffered a meniscal tear — a type of cartilage injury — in March, 2006, as he jumped from a Coyote armoured vehicle, the workhorse transport for the Dragoons, a reconnaissance regiment whose duties include gathering intelligence on enemy forces.
Over the following years, he had four operations to try to heal the knee, culminating on Oct. 27, 2010, with an “osteotomy” — where a wedge of bone is removed to realign the knee and take weight off the damaged cartilage.
When the surgeon realized later there was no blood flow to the left leg, he reopened the joint and discovered that the main artery and vein in the limb had somehow been torn, possibly with the “osteotome” — an instrument used to cut into bone. “But it wasn’t my recollection that I had gone that deep,” the doctor said in a report quoted by the judge.
The error could not be reversed and four days after the elective operation, Cpl Gardner’s leg had to be amputated.
Mandatory insurance provided through the Forces pays $125,000 per dismembered limb, but requires that the loss be directly related to military service, happen by accidental or violent means and occur within 90 days of that accident.
Manulife denied the claim, saying the medical mishap was too far removed from military service.
Cpl. Gardner argued in an appeal that the accident for which he was requesting compensation was actually the surgeon’s mistake, itself related to the original, military injury. He testified that he was worried his knee problems would undermine his army career, and a Forces doctor had recommended that he see the civilian surgeon.
Mr. Johnston said the dismemberment benefit is “paltry” compared to what most civilians would receive through their insurance. And he noted that the future for such disabled soldiers is uncertain, given the Forces’ “universality of service” rule that requires that all regular-force troops be capable of combat if necessary. Many have been let go from the army after losing limbs in Afghanistan.
“Everybody seems to abdicate responsibility for veterans,” said Mr. Johnston.
