Damages in Medical Malpractice Cases

young female doctor consulting with elderly male patient

Medical malpractice cases are complex and often take years to reach a resolution. The process can be intimidating to patients who were the victims of alleged negligence by their doctors. Lawyers who handle these types of cases will guide their clients through the process and explain what’s going on and what they can expect next. A medical malpractice action is commenced when a Notice of Civil Claim is filed. The Notice of Civil Claim creates a foundation that includes key elements like:

  • Parties to the action (including the plaintiffs and defendants)
  • A statement of the material facts of the claim
  • A description of the plaintiff’s injuries
  • Damages claimed by the plaintiff against each defendant named in the claim
  • A summary of the legal basis on which the plaintiff seeks relief

Lawyers who handle medical malpractice cases typically conduct an investigation before the claim is filed so that all material facts are included, and the case is presented well because the Notice of Civil Claim should contain the critical information that the judge will need to consider. They will consider the medical issues of the malpractice event in question as well as the legal ramifications. In order to assess potential amounts of damages in the medical malpractice action, they will collect and review medical records and may seek expert opinion evidence. They will use that information to determine what types of damages should be sought and the likely range of quantum one might expect to receive from a judge or jury for those damages. This process continues throughout the life of the claim and develops as additional evidence and expert opinions are obtained. Medical experts, as well as financial experts, may be key in determining the quantum of damages to be awarded in a case. In this blog, we will closely examine the types of damages that can be sought by a plaintiff in a medical malpractice claim in Canada.

Types of Damages

The general types of damages medical malpractices claims can include are:

  • Non-pecuniary or general damages
  • Income loss
  • Loss of earning capacity
  • Past and future care costs
  • Subrogated claims
  • Aggravated damages
  • Punitive damages

As the result of several key decisions made by the Supreme Court of Canada in the late 1970s, a limit has been established on the quantum of damages a plaintiff can be awarded for general or non-pecuniary losses. General or non-pecuniary damages include compensation for pain and suffering, loss of enjoyment of life, and loss of amenities. In 1978, when the cap was first established, the limit was $100,000 but that rate is adjusted for inflation over time. It is currently set at $381,481.48. There are some exceptions to the cap, but these are only in extremely rare circumstances.

Limits also exist for the quantum of punitive damages that a court can award. Punitive damages are intended to punish the defendant for reprehensible conduct, to provide retribution, to deter them from future action, and as a statement of denunciation. The range for punitive damages limits is very broad. Punitive damages are rare and only awarded in extraordinary cases.

If a wrongful death claim has been filed, the legal representative can also pursue damages like the loss of economic support, household contributions and inheritance, cost of medical expenses incurred before the death, and the cost of funeral and burial or cremation expenses.

Non-Pecuniary General Damages

Non-pecuniary or general damages are awarded for the plaintiff’s pain and suffering and loss of enjoyment of life. They include the pain and suffering that the plaintiff has experienced and will experience as a result of the medical malpractice event. Determining the extent of loss of enjoyment of life will involve assessing the plaintiff’s ability to enjoy their life prior to the medical malpractice and comparing that to their current and future abilities to obtain enjoyment from their life. The court will consider their health prior to the medical malpractice event, their state at the time of trial, and the likelihood that their condition may not improve or may worsen over time. They will assess the plaintiff’s injuries, impairments, degree of pain, and the impact the injury or harm has had on their function. They will also consider how the outcome would have been different if they had received an appropriate level of care that met the established standard. Non-pecuniary damages will only be awarded if the plaintiff’s injuries were a direct result of the medical professional’s negligence and not solely as a result of the natural progression of a disease or condition that pre-existed the medical negligence event. The court will assess the plaintiff’s physical and psychological injuries and the impact that occurred as a result of the negligence.

The plaintiff must establish causation between the doctor’s negligence and their injury and current condition. Extensive evidence and testimony provided by medical and scientific experts are required to assess the plaintiff’s condition, establish causation, and predict future implications of the injury. These damages are not viewed as complete restitution for what has been lost, as it is generally accepted that no financial compensation can replace or mitigate pain and suffering or loss of enjoyment of life. The maximum amount allowed is only awarded in cases of catastrophic injury.

Aggravated Damages

Aggravated damages aim to compensate the plaintiff for the consequential damages caused by the alleged medical negligence. They can only be sought if the damage to the plaintiff was aggravated or made worse by the way in which the medical negligence occurred. Aggravated damages would consider elements of the alleged medical malpractice event like humiliation, indignation, psychological harm, grief, and fear. They involve cases where the medical professional’s conduct was egregious and outrageous. Aggravated damages are considered a subset of general damages and thus subject to the cap for non-pecuniary general damages. These damages are typically only awarded in cases where the plaintiff establishes that the physician caused them mental distress resulting in the need for additional treatment or where defamation or fraud on the physician’s part has occurred.

Pecuniary Losses

Pecuniary losses are those damages that can be monetarily measured and usually relate to losses like loss of property, personal injury, services rendered, expenses incurred, loss of income and loss of assets. To establish such losses, clear supporting documentation is necessary, including receipts, bank statements, invoices, and contracts. In addition, expert evidence will again be needed to further solidify the case for these damages. Awards for these damages generally aim to provide a legal remedy by which restoration to the original condition is achieved. This means that the award of damages should provide a successful plaintiff with the financial position they had before the medical malpractice occurred.

Income Loss

Past and Future Income Loss

If a plaintiff has experienced income loss as the result of a physician’s negligence, they can advance a claim for past and future income loss damages. This can occur when the plaintiff misses work or is no longer able to work as a result of their injury. These damages can be assessed by reviewing the plaintiff’s work history and considering contingencies (both positive and negative) like their probability for future promotions and risks of job loss. The plaintiff may also claim a loss of competitive advantage at work. This occurs when the plaintiff is able to return to work but, because of their injury, is limited in their ability to obtain opportunities that would have otherwise been available to them before their injury. For these damages, accounting and economic experts are sometimes used by the plaintiff’s lawyers to establish and forecast the amount of the losses, and medical experts will be used to establish the causal link between the injuries and the doctor’s negligence. It will be critical to first determine what the plaintiff’s likely income would have been if the alleged negligence had not occurred. The court will also consider the plaintiff’s future plans, including retirement, when determining the total past and future income losses. If the plaintiff loses a benefit like a pension, that may also be considered as an additional loss of income. Calculating these types of damages is difficult, and the courts recognize that it is often impossible to accurately determine future income loss. These calculations are considered more of an art than a science.

The defendants will only be forced to pay for the plaintiff’s income losses if they are found liable for medical negligence. While the plaintiff may be able to access short or long-term disability benefits through their employer or obtain income loss benefits from a private insurance company, those benefits will only come into play if a subrogated claim is submitted on behalf of the insurer.

Future income loss claims can also be advanced in claims involving birth injuries. The plaintiff will attempt to establish a causal link between the child’s impairments or sustained injuries that were the result of the physician’s negligence and their current condition as it relates to their ability to obtain and maintain employment. For children who experience catastrophic injuries, like brain injuries, their legal team may claim that the physician’s negligence rendered them permanently unemployable. In these instances, where the plaintiff does not have an established work history, the court will consider statistical evidence relating to key factors like education in order to determine a probable earning potential and future income loss.

Lost Years

Lost years damages are only awarded to a plaintiff whose life expectancy was shortened as a result of medical malpractice. These types of damages also take into account the way in which the loss of income will affect the dependents of the plaintiff (for example, the amount of money they would have been able to contribute towards the cost of their child’s education.) Expert evidence is again necessary to help the court determine the appropriate amount of lost years damages to award. Experts will present information on the plaintiff’s past earnings, their potential future opportunities and risks, and medical data regarding life expectancy.

Calculating the amount of lost years damages is a complex process. In some cases, the court may identify a deduction based on the absence of living expenses that the plaintiff is expected to incur for a period of time. The court will first attempt to calculate the years lost or the number of years by which the person’s life expectancy has been reduced. This is critical to the calculation because the court will want to assess how many years the person will no longer be expected to incur ordinary living expenses. Next, the court will want to determine what the plaintiff’s likely income would have been without the injuries that resulted from the medical negligence. For example, consider a person who experiences an act of medical negligence at age 50 that prevents them from working for the remainder of their life and reduces their life expectancy from 80 to 60. From age 50 to age 60, this person will incur ordinary living expenses and would likely be entitled to loss of future income damages. Since they are now expected to die at age 60, however, the damages they may be entitled to from age 60 to their original life expectancy age of 80 would be reduced by the deduction of living expenses. This will identify the net loss of income the person is expected to experience during the lost years. These deductions are determined on a case-by-case basis, allowing the court to carefully consider all the evidence specific to that case. Variables like the amount of living expenses for a person and their family, the plaintiff’s predicted future income, and whether or not the household has a dual income must be carefully considered.

Contingencies to Loss of Income Damages

Contingencies are the factors and variables that affect the amount of risk of future economic loss and the likelihood that those losses are directly related to the alleged medical negligence and its ongoing impact on the plaintiff. Loss of income damages have many contingencies that need to be considered in order to quantify an appropriate amount to be awarded to the plaintiff.. Positive contingencies are those that would have increased earning potential while negative contingencies would have reduced earning or employment potential. Both of these contingencies will relate to both income and medical history. Contingencies may include promotions, market variables, layoffs, and pre-existing health conditions. Contingences considered fall into two categories: general and specific. General contingences are those that affect everyone, like the prospect of a promotion. Specific contingencies are unique to the plaintiff, like their work history or a special skill or trade they have developed.

Past and Future Expenses

A plaintiff can ask the court to award damages for past and future expenses incurred as a result of the alleged medical negligence. These expenses may include things like:

  • Cost of ongoing health care, including care from specialists
  • Cost of mobility aids like a wheelchair or cane
  • Medication costs
  • Cost of the upkeep of a home and property
  • Cost to modify a home or vehicle to make it wheelchair accessible
  • Cost for in-home nursing and healthcare
  • Travel costs to and from healthcare appointments, including parking and mileage
  • Cost for vocational training or rehabilitation

Again, expert evidence is vital to provide the court with a quantitative assessment of these losses, including forecasting how long the patient would need access to future expenses like health care. Experts will also help to determine if any pre-existing conditions contributed in part to the plaintiff’s current condition. Also, as is the case with all damages claimed in medical malpractice cases, the defendant will only be required to pay future expenses if they are found liable for medical negligence or if the two parties reach an agreed upon settlement that includes payment for these damages.

Subrogated Claims

Subrogated claims occur in a medical malpractice case when a third party seeks reimbursement from the plaintiff for damages received by the plaintiff in compensation of losses that were offset by benefits provided by the third party. The subrogating entity, often in these cases a private insurance company, has the right to be reimbursed according to the terms of their contract with the plaintiff or by virtue of a statute in cases where the plaintiff recovers these amounts from the defendant(s). The Canada Health Act provides the Ministry of Health and Long-Term Care the right to subrogate. They can seek to recover funds they paid as benefits for hospital and other medical costs when a person is injured as a result of medical negligence. The subrogating entity does not become or need to be a named party to the lawsuit. Their claim is associated with the plaintiff’s claim and the plaintiff’s recovery or a portion thereof would be paid by the plaintiff to the subrogating entity as reimbursement.

Punitive Damages

Unlike general damages which are meant to compensate a plaintiff, punitive damages are intended to punish the defendant for their negligence and behaviour. Their intent is to make an example of the defendant in an effort to deter other medical professionals from doing the same thing they did. The courts will generally only award an amount that is in line with the purpose they wish to accomplish. The misconduct of the defendant must have been egregious and extreme and may have otherwise gone unpunished. For example, if the defendant has already been subject to criminal or other penalties arising from the wrongful conduct, punitive damages will not be awarded because punishment has already occurred. Since the bar set for punitive damages is so high, they are rarely awarded in medical negligence cases. Punitive damages will only be awarded in cases in which the combined award of general and aggravated damages is insufficient to achieve the goal of punishment and deterrence.

What to Do If You Believe You Have a Medical Malpractice Claim

The results of medical malpractice can be devastating and far-reaching. Medical malpractice can be an especially complex and confusing area of the law. If you think you have a medical malpractice claim or just want to know more about your legal rights and responsibilities as a patient, you should consult with a medical malpractice lawyer.

At Klein Lawyers, we understand that the complications and aftermath of medical malpractice may feel overwhelming. The damage you experienced has the power to change the course of your life. If you believe you have suffered at the hands of a negligent doctor, contact the Klein Lawyers’ medical malpractice team today. The team at Klein Lawyers is here to help you and your family recover the compensation you deserve for the losses caused by a doctor who has committed medical malpractice. For more than 20 years, our team has been advocating on behalf of clients in a wide range of complex legal matters.

Contact Klein Lawyers at (604) 874-7171 today for a free consultation with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia. There’s no obligation, and it’s completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.