Patients who suffer injury or lose a loved one as a result of medical negligence can find the concept of damages for pain and suffering to be confusing. It is important to understand that there are two types of recoverable damages in a personal injury case. Pecuniary damages include the economic costs incurred as a result of someone’s negligence or wrongdoing while non-pecuniary or general damages are meant to compensate for the non-economic impacts of an injury.
Damages for pain and suffering fall into the non-pecuniary or general damages category. Ultimately, victims of medical negligence may be entitled to compensation for both pecuniary and non-pecuniary losses.
Our knowledgeable lawyers can assess your claim for medical malpractice and determine the full value of your pain and suffering and other losses. Call Klein Lawyers at (604) 874-7171 today for a FREE case review.
What Is Pain and Suffering, Exactly?
Damages for pain and suffering compensate you for the physical pain and emotional anguish commonly associated with serious injuries. Broadly speaking, damages for pain and suffering in a medical malpractice claim may include compensation for:
- Chronic and recurring pain
- Physical and/or mental impairment
- Anxiety, depression, and other mental health issues
Medical errors can have a devastating impact on a patient’s well-being. Depending on the nature of the error and the severity of the harm, the effects of malpractice can be permanent and life-altering.
It is important to note that the cost of treating the issues above is distinct from pain and suffering. Medical expenses (e.g., expenses related to physical therapy, psychiatric counselling, pain management, etc.) are considered pecuniary damages while pain and suffering falls under the category of non-pecuniary or general damages (i.e., non-quantifiable losses to the patient’s quality of life).
Are Doctors Liable for Pain and Suffering?
Doctors may face medical malpractice lawsuits for a host of different errors. Potential grounds for a medical malpractice claim may include:
- Misdiagnosis, delayed diagnosis, and failure to diagnose
- Failure to treat a complaint in accordance with the standards of the medical profession
- Medication errors
- Surgical errors
- Birth injuries
Whether or not a doctor can be held liable for medical malpractice depends on the plaintiff’s ability to prove that the doctor was negligent. Negligence is more than a simple mistake; it comprises a failure on the doctor’s part to provide the appropriate care given a patient’s complaint and the training, knowledge, and skill expected of the doctor.
Read More: Do I Have a Case for Medical Negligence?
The plaintiff must also present evidence that the negligence of the doctor resulted in injury. In addition, evidence of the damages the plaintiff has suffered, including pain and suffering, must be presented.
Furthermore, it is important to consider any additional parties that may be sued. A number of different doctors and healthcare providers may be liable for medical malpractice (individually and/or as employees of a hospital).
The Negligence Act of British Columbia sets a “joint and several liability” standard for negligence actions where two or more parties are at fault. Liability for damages is accorded “in proportion to the degree to which each [party] was at fault.” A knowledgeable lawyer can identify all of the parties responsible for a medical malpractice injury, determine the proportion of fault, and fight for the compensation you deserve for pain and suffering and other damages you are due.
How Are Pain and Suffering Damages for Medical Malpractice Calculated?
Unlike pecuniary damages, pain and suffering is not represented through bills and receipts. However, Section 2(a) of the Negligence Act requires that all damages from another party’s negligence be “be ascertained and expressed in dollars.” To accomplish this, a medical malpractice lawyer will carefully review your medical records and consult expert witnesses (such as your doctor and other medical experts, economists, etc.) to identify all of the ways your injury affects you physically, mentally, and emotionally.
Your lawyer will be committed to seeking maximum compensation for your losses (including pain and suffering). Parties on the other side, however, will take a different approach.
Insurance Companies
The insurance companies that represent individual medical providers and hospitals focus on reducing costs and minimizing payouts. If the insurer considers pain and suffering damages (which is not guaranteed), the company will likely employ a formula calculating the cost of the injury per day (known as the per diem method) or adjusting the settlement offer by multiplying your pecuniary losses by a number representing the severity of the injury (known as the multiplier method).
The Canadian Medical Protective Association (CMPA)
Most doctors in British Columbia are members of the CMPA, which provides legal defence to physicians accused of malpractice. Unlike insurance companies, the CMPA prioritizes defensibility over cost in determining whether to challenge a medical malpractice claim. If lawyers for the CMPA believe that they can defend a claim, a settlement offer is highly unlikely and it will be necessary to go to trial to recover compensation.
Read More: The Canadian Medical Protective Association and How It Differs from an Insurance Company
Is There a Cap on Pain and Suffering in British Columbia?
In 1978, the upper limit on general personal injury damages was set in a series of decisions by the Supreme Court of Canada. Known as “The Trilogy,” these decisions initially established a $100,000 cap on the recovery of non-pecuniary damages in torts arising from negligence (including medical malpractice claims).
Over time, the damages cap has been increased to keep up with inflation. A comparison of Canada’s inflation rate from 1978 to 2022 shows that the damages cap for pain and suffering today is between $350,000 and $400,000.
Damages from injuries sustained as a result of medical malpractice may be substantial. However, an award for non-pecuniary losses cannot exceed the pain and suffering cap set forth by the Supreme Court of Canada.
Klein Lawyers Can Help You Sue a Doctor for Pain and Suffering
Patients sue doctors for a number of reasons. Unfortunately, obtaining fair compensation for medical malpractice can be extremely challenging.
At Klein Lawyers, our team will assess any and all pain and suffering damages for medical malpractice and other losses you have sustained. We will fight to maximize compensation on your behalf.
Contact Klein Lawyers today for your FREE case review. Our lawyers handle medical malpractice claims on behalf of clients in Vancouver and throughout British Columbia.
