The Claims-Free Architect

“The Flying Doctor”: How an $18M Claim Collapsed When His Pilot Licence Proved He Could Still Fly

• Pro-Demnity Insurance Company • Season 4 • Episode 13

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In a parking garage where a doctor slips on uneven stairs, a headlong crash threatens his career. Can an architect be held liable for this costly fall?

Learn why stairs can be treacherous, how site reviews can save you, and why a well-researched defense can dismantle dubious claims.

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This story deals with a minor discrepancy in a construction detail—the height of a stair riser—as the result of which, a young doctor slips and flies into a concrete wall. Predictably enough, we call this story “THE FLYING DOCTOR,” which may seem a little uncharitable on our part . . . except that the doctor’s actual aviation experience was what ultimately proved his undoing.


The scene of the accident was the stairwell in a parking garage across the street from the regional hospital in Mallady, Ontario. The time of the accident was 6:55 am, on a chilly December morning. The single individual involved was a Doctor Rainshaw, a resident in the hospital’s emergency department, training to be a heart surgeon.


Doctor Rainshaw had parked his SUV, as usual, on the second floor of the garage. On this particular morning, he had been held up by traffic, so he was running late for his 7:00 am shift, and was a little more rushed than usual. In his three months working in the hospital’s emergency room, he had negotiated the parking garage stairs at least a hundred times in each direction, so he should have known each tread and riser by heart. 


However, on this occasion, as he headed down the staircase, he somehow miscalculated and lost his footing. This would be unsettling enough, but instead of falling backward and sliding painfully down the stairs, he fell forward with enough momentum to become momentarily airborne, until his head struck the concrete wall of the landing. He lay unconscious for several minutes, until he was discovered and taken by stretcher . . . to his own emergency ward.


The Doctor’s diagnosis was better than might be expected under the circumstances. There were minor injuries to his right hand and elbow, severe abrasions to his forehead, and evidence of a concussion that would require several days’ hospitalization, and monitoring by his colleagues.


Completing his recovery at home, his head began to clear a little and he was able to think about his future, and how his accident might affect it. Surgery of any kind required a clear head and steady hands, but heart surgery was especially demanding. Meanwhile, stiffness in his right elbow and wrist had persisted, and his thinking remained foggy.


A general depression set in. He was facing the grim prospect that his once-promising medical career was now in ruins. What choice did he have but to seek compensation from the people he held responsible for his misfortune: all those who had created the stairway that launched him and his career into oblivion. This included the Owners of the parking garage who should have maintained it, the Engineers and Architects who designed it, and the Contractor who built it.


His claim was for $18 million plus costs.


Dr. Rainshaw retained a lawyer who specialized in personal injury lawsuits, and this lawyer was pressing for an accelerated timetable, with Discoveries to start in a few months. Since the doctor currently had no source of income to speak of, his counsel was probably working on a contingency basis, so the quicker the whole thing was resolved, the more likely he was to reap a handsome reward. He seemed to be exceptionally confident in his chances of winning.


The scheduling judge agreed to set a date for mediation, allowing the defendants four months to prepare. He suggested that the additional time and expense of Discoveries should only be entertained if the attempt at mediation failed.


With his Statement of Claim, Dr. Rainshaw had included a Construction Expert Report alleging that the stairs provided several dangerous conditions. First, the risers of the flight in question were not according to Code and were irregular, varying in height by up to 2.5 cm. Second, there was only one handrail, where there should have been two, and Dr. Rainshaw was unable to reach the single handrail when he slipped. Third, the unheated stair was slippery from ice—a recurring condition that could have been avoided through better design and maintenance.


These allegations, along with several others in the Report, represented a litany of dire predictions and assertions that the forthcoming technical and medical expert reports would no doubt support.


Like many personal injury claims, this one didn’t really revolve around an Architect’s usual and customary professional activities. Instead, it involved a single event that occurred after the work had been completed, for which a surprisingly large sum was being demanded as compensation. So, our task was to answer three questions. First, how did the accident happen? Second, how was an Architect—or anyone other than the plaintiff—involved at all? And third, what, if any, were reasonable damages?


All of the defendants had a common interest in answering these questions. If the Doctor, and no one else, were found to be responsible then we could close our chequebooks and heave a sigh of relief. But if liability were found to exist for any of the defendants, they were prepared, and could even be expected, to point the finger of blame at one another.


Pleadings were exchanged, with the usual crossclaims between the defendants. We alleged that the project Architects, Magruder, Cosky & Kitcherman, were totally innocent, and far removed from the line of liability. Joseph Butterthorpe, the local Architect who had been retained to review the work, had performed his task diligently, and any discrepancies that may have existed were minor—if such discrepancies did in fact exist, which we were not prepared to concede.


Our defense position had to be aggressive. We were facing an attempt to extract a “celebrity-level” personal injury settlement for an unfortunate mishap that had been grossly exaggerated. And the clock was ticking. 


We engaged an Expert Architect to examine the stair in question and weigh in on Code conformance and reasonable deviations that we could use in our defence. This Expert also surveyed similar concrete garages, to confirm our belief that rough stairs will normally exhibit variations in riser heights.


The plaintiff had engaged their own expert, Dr. Victoria Fallsmith, whose frighteningly long history of providing expert testimony in slip-and-fall cases was rumoured to have resulted in many plaintiffs receiving substantial damages.


Fallsmith’s preliminary report detailed an imaginative analysis of how small discrepancies in riser height in a stair can cause disorientation and confusion in the human motor system. She showed no hesitation in stepping outside her area of expertise by quoting previous legal decisions and opinions, some of which referred to very remote jurisdictions and regulations that didn’t apply.


But for us, the key issue in the Doctor’s claim was the mechanics of the fall itself. How did Dr. Rainshaw stumble in the first place, and how is it that he “flew” headfirst into the wall of the stairwell rather than sliding on his rear end, as might be expected from having lost his footing on a slippery stair?


Pro-Demnity initiated a search for someone who could provide insight into the biomechanics of the fall and credibly counter Dr. Fallsmith’s testimony. We had been told that Dr. Rainshaw was in the habit of jogging early in the morning and wearing running gear to the hospital, where he would then shower and change into his scrubs. It was our hunch that Dr. Rainshaw had hit the stair running, and his airborne trajectory was the result of momentum.


Our diligent search turned up an unusually qualified expert: University Professor, Boris A. Backridge. Originally a Structural Engineer, Dr. Backridge had spent the past 20 years studying the nature of injuries in a range of circumstances, from sports injuries to workplace accidents. His studies placed particular emphasis on how physical elements such as hard surfaces, objects, or construction features, may affect an injury. Steps and staircases were his specialty.


The Professor met with the Claims specialist at the site of the accident. He took measurements and photographs onsite and moved on to look at nearby staircases and buildings, for the purposes of comparison. We provided him with copies of the emergency room medical reports, the paramedics’ report and the results of subsequent medical examinations, which he took with him when he returned to his laboratory. Backridge was an affable, courteous individual with a disarmingly frank and open manner—the sort of expert who doesn’t get rattled under cross-examination. 


We felt that he would make an excellent witness. 


The mediation was held in a large, windowless room in downtown Mallady, inside a featureless 1970s-era office building. The mediator Leo Magistrati, the former president of a major construction firm, but now retired, was known to all the players, except Pro-Demnity and our lawyer. This familiarity, combined with his naturally deferential manner, tended to allow a little too much leeway for grandstanding, which was not a good sign for us, since the plaintiff’s counsel would certainly want to present his case in the form of a soap opera. After the usual preamble, he asked the Plaintiff’s counsel to open the proceedings.


Plaintiff’s counsel had earned a reputation as an aggressive lawyer in the scrappy world of personal injury and automobile litigation. He began his oration by describing the Plaintiff, whom he referred to as “the victim.” Here was a brilliant young doctor whose future had been cruelly destroyed by the incompetence of others. Although his hand had recovered, Dr. Rainshaw still suffered from permanent immobility in his elbow, giving him less flexibility than a heart surgeon required. So, his plan to become a highly paid heart specialist would have to be abandoned and replaced instead, by a career as a worthy but less well-paid General Practitioner. 


Not only that, but the concussion he had suffered had reduced his ability to concentrate, and as a result, he was no longer able to read lengthy reports or medical treatises—a critical disadvantage for any kind of doctor, but especially so for one engaged in the “cutting-edge” world of heart surgery.


The lifetime differential in earnings would be close to $15 million.


During his presentation, he took advantage of the mediator’s indulgence by using facial expressions and exaggerated body language—like an actor in a silent movie—to amplify the melodrama in the tragedy he was describing. It was clear that he had mistaken the mediation for a court trial, but there was no jury to be swayed by his performance.


Counsel went on to describe Dr. Rainshaw as a keen aviator. He had earned a private pilot’s licence and enjoyed taking weekend hops as a way of unwinding. However, since the accident he no longer felt safe operating an aircraft. He had lost confidence in his navigational skills and had even developed an acute case of aerophobia—aka “fear of flying.”


As if this weren’t enough, his private life had also been severely compromised. The intimate relationship between the Doctor and his wife had been destroyed. This tragic loss accounted for the extra $3 million being claimed.


During this last revelation, Dr. Rainshaw appeared to be more than a little uncomfortable—and it wasn’t just the personal embarrassment. His wife, seated beside him, was staring daggers, alternately at him and at his counsel. Clearly, she was not happy about what was taking place.


Counsel concluded by saying that, although the claim was $18 million, they were prepared to take substantially less if the matter could be settled at this mediation, since the strain of further litigation on Dr. Rainshaw’s marriage and career might prove unbearable.


The proceedings had taken us to lunchtime, and we gratefully recessed, to dine with our co-defendants and to recover from what we had just experienced. The Rainshaws ate at separate tables—separate from their counsel and separate from each other. There was definitely “trouble in paradise.”


The afternoon session opened with the Parking Authority’s lawyer, an urbane, grey-haired counsel, telling Dr. and Mrs. Rainshaw how sorry he was that they “had to be here.” He hoped that what he had to say wouldn’t add to the strain that this unfortunate matter was already placing on them.


He continued by saying that he would deal with the lesser issues first, including the matter of damages. Liability would follow.


With regard to Dr. Rainshaw’s flying abilities, counsel observed that on the day of the injury, Rainshaw had a VFR—visual flight rules—licence, which permitted him to fly only during clear weather conditions, relying on sight to navigate and control the aircraft.


Counsel then opened his briefcase and produced a photocopy of a licence bearing a picture of Dr. Rainshaw. He handed Rainshaw the copy and asked him to describe what it was. Rainshaw’s counsel grabbed the paper and asked for a recess, to confer with his Client.


Meanwhile, we all looked at a second copy of the document. It was a licence for instrument flying—IFR—permitting the holder to fly in more adverse conditions. Clearly, a sharper and more responsive pilot-brain was required for IFR flying, and the date on the licence was quite recent, in other words, the Doctor had tested for and received this licence since the accident. Accompanying this document was a copy of another document indicating Rainshaw’s enrolment in a multi-engine course, which required an even greater degree of aviation acumen. 


After a few minutes, the mediation resumed, with no comment or apology from Rainshaw’s counsel. He merely requested that his Client’s claim for the loss of flying ability be removed from the pleading.


The next lesser issue was the matter of the Rainshaws’ “married life.” The Parking Authority’s counsel noted that no medical evidence had been produced to support the claim that there had been a loss of intimacy, and that it would be very tricky to assess. He therefore felt obliged to ask some questions of an extremely personal nature. After all, his client was being asked to pay a great deal of money for “loss of libido.”


This “obligation” to ask a few personal questions set Mrs. Rainshaw off again. Tugging at her husband’s sleeve, she whispered to him, angrily. They excused themselves once more and left with their Lawyer for another private caucus. When they reappeared after 10 minutes of loud but indecipherable argument, heard through the closed door, Counsel withdrew this aspect of the claim as well. Mrs. Rainshaw obviously wanted no part of this.


Counsel then tackled the major “lesser issue”—the loss of lifetime earnings.


It was true that the difference in life earnings between a general practitioner at say $200,000 a year and a surgeon at around $500,000 could amount to 10 or 12 million dollars, over a 35-year career—not quite the $15 million claimed—but he had some good news for Dr. Rainshaw.


First, he had expert evidence from practising heart specialists that great elbow flexibility was immaterial to their procedures. There were examples of surgeons with prosthetic elbows and missing fingers doing very nicely in the field.


Second, Dr. Rainshaw’s superiors at the hospital had replied to enquiries, speaking very glowingly of his abilities in emergency surgery, and stating that his performance was, as far as they could see, unaffected by the fall he had suffered the previous year.


Third, modern surgery no longer involved heavy lifting, and current technology, as well as predictions of future developments, pointed in the direction of remote-instrument operations, and even the involvement of Artificial Intelligence.


Finally, counsel produced the inevitable spy-cam films of Dr. Rainshaw playing tennis quite vigorously since the accident. So, tennis skill aside, this brought into question the alleged lack of elbow mobility.


In other words, the “good news” was that there should be no loss of future income. The accompanying bad news was that his claim was entirely unfounded.


The Rainshaws and their counsel left the room yet again, for private caucus and, once again, commotion was heard. On their return, about a half-hour later, their counsel announced that he wanted to make a deal, requesting an offer from the Defendants.


Now it was the defendants’ turn to caucus and debate amongst themselves. We were sensitive to the fact that Dr. Rainshaw had suffered a fairly serious fall and had lost several weeks of work, so there was some validity to the claim, along with the virtual certainty that a greatly reduced offer would succeed.


But a few questions remained. Was the stair designed according to Code? Had it been correctly built?After construction, had it been properly maintained? And to what degree, if any, had Rainshaw been guilty of contributory negligence, by causing his own fall?


In the first three matters, the Parking Authority admitted that the stairs in this partially open structure did get wet and did freeze, from time to time, but they had trained staff to deal with it promptly. It just so happened that, on the day of the accident, they had been short-staffed, and the stair had possibly not been attended to. They did, however, note that the stair had a few irregular risers and was not according to Code—and those facts might easily have caused the accident.


The General Contractor Retrograde Construction pointed out that the differences in riser height—in some cases as much as 2.5 cm—were not unusual for a concrete stair in a parking structure, and that there were many examples around town that were worse. In other words, this was a rough stair, not a piece of cabinetwork.


Pro-Demnity believed that the stair had been designed in conformity to Code and that Magruder, Cosky & Kitchermanhad produced acceptable details. They had relied upon the local Architect Butterthorpe—also insured by Pro-Demnity— to conduct field reviews, and he had not spotted any large variations. It’s not an Architect’s duty to measure and inspect every single step.


Further to that, Pro-Demnity’s expert ergonomist Dr. Boris Backridge would testify that, according to his study of the accident reports, and in his opinion, the plaintiff had run and jumped down the stairs—he was, after all, wearing a track suit—and that his injuries were consistent with a dive forward, whereas a normal slip would have caused him to land on his tailbone. Dr. Backridge had convincing diagrams to prove his point, and he had testified in many such cases. This all seemed to indicate a large contributory negligence factor.


The Expert Architect we had asked to prepare a report, had discovered an anomaly that the original Architects, the Contractor, and the plaintiff’s experts had not noticed, and that we had yet to disclose: The formwork contractor had evidently miscalculated the slab thickness of the floors, resulting in a top-step riser that was almost 5 cm. higher than the rest of the flight. This revelation generated an instant sense of gloom, until our counsel reminded us that the plaintiff had not slipped at the top step, but halfway down, where the discrepancy was within normal limits, and on a tread, not a riser. In addition, Dr. Rainshaw had used the stairs every day for several months and should have been aware of any inconsistencies.


Counsel for the Structural Engineer Gert Flutterman had little to say. He felt that his client was not involved, and we tended to agree. The stairs were standard and had been shown diagrammatically on the Engineer’s drawings, merely following the Architect’s design. The Engineer had not inspected the stairs.


Rather than quibbling among ourselves, we came up with a formula, according to which, each of us would contribute to a settlement. The Building Owner’s share would be 50%, covering maintenance failure. The Contractor would add 25%. The Architects would each pitch in 12.5%. Our combined offer was $125,000—a far cry from the $18 million claimed.


The Plaintiffs discussed our figure in caucus and re-emerged with $175,000 as their final offer.


We had considered that, at a trial, the doctor would probably receive compensation for his lost time, his temporary discomfort, his legal fees and any medical expenses. Added to this, would be the cost of pre-trial discovery. All in, we might be looking at something in the seven-figure range. So, we had little difficulty accepting the plaintiff’s counter-offer. By the time legal and expert witness costs and other expenses were deducted, the doctor would be lucky if there was enough money left to salvage his marriage by taking his wife on a short tropical vacation.


Many of us may have found ourselves losing our footing on a stairway. A few of us may have stumbled and fallen, possibly causing minor injury. Very few of us, one hopes, have rushed down an icy stair, slipped on a tread and flown headlong into a concrete wall. From this frightening incident there are two lessons to be learned.


Lesson No. 1: This lesson is for Architects: Be vigilant when you review the construction of staircases. Accidents can be tragic and expensive.


Lesson No. 2: This lesson is for everyone, and it’s an old one, that we are all taught at a very young age: Be mindful when you use staircases. You don’t have to be an Architect or doctor with a flying licence to know this.