This article on damages for Family Law Act (FLA) claimants is part of a series of articles that discuss the types of damages that may be claimed in a medical negligence case. It is important to note, however, that each case is unique, and the damages claimed will differ between individuals.
The assessment of damages is a process that evolves as the evidence becomes fully developed; specifically, in cases involving significant injury, medical and expert assessments are required to fully understand the extent of the harm suffered and the required future care.
Damages in a medical negligence action
Generally, in a medical malpractice action in Ontario, damages are meant to compensate a person for the injuries suffered as a result of medical negligence. The basic principle is to restore plaintiffs to their pre-injury financial positions. Income loss to the date of trial and into the future are usually quantified based on past earnings, employment history and data, as well as on expert evidence for prospective earnings.
Other categories of damages, such as non-pecuniary general damages (pain and suffering), are more qualitative in nature and are usually quantified based on previous case law that attributes a financial value to the impact that injury or impairment has had on the person's life.
For more information on the requirements for a successful medical malpractice case and the purpose of a medical malpractice case, please follow the links below:
Assessing medical malpractice damages
Generally, in a medical negligence case in Ontario, the following are potential categories of damages that may be claimed depending on the facts of the potential case.
Below are a series of articles related to assessing medical malpractice damages. The topics not linked will be the subject of additional posts in the coming weeks.
- An introduction
- Non-pecuniary general damages
- Income loss
- Past and future expenses, including health care costs
- Family Law Act damages
- Services rendered, expenses incurred, and pecuniary losses - (current article)
Family Law Act damages-services rendered, expenses incurred, and pecuniary losses
In Ontario, the Family Law Act ("FLA") permits individuals who have a particular relationship to an injured person to advance a claim for their loss of guidance, care, and companionship, as well as for their pecuniary losses resulting from the injury to that person, including their loss of guidance, care and companionship. For an overview of general FLA damages, please see our article here.
Pecuniary losses that can be claimed by FLA claimants include services rendered, expenses incurred, and other pecuniary losses.
Services rendered claims are often included for "extraordinary" care - care that is above and beyond what is reasonably expected, which would not otherwise have been necessary if there was no negligence. Examples of this include a parent that now provides additional or specialized care to a child or adult dependent that is beyond that which they would have otherwise provided, such as such as grooming, diaper changes, feeding, general hygiene, monitoring for issues, physical therapy, etc.
Individuals may also be compensated for housekeeping or other services provided as a result of the alleged negligence. This often includes services such as snow shoveling, lawn maintenance, extra duties cleaning the house, outdoor housing upkeep, improvements or repairs to the house, and providing transportation to appointments, etc.
The value of claims for services rendered may be calculated in a variety of ways, including as an hourly rate at market value for services, or as a lump sum. In certain cases, expert accounting evidence may be required to properly assess these claims.
FLA claimants can also claim for expenses (that have already been paid by the FLA claimant) which were reasonably incurred for the benefit of the person who was injured. These expenses include out of pocket expenses, including the costs paid for medical equipment such as mobility aids, supplies such as catheters, additional health care therapies not covered by the provincial health insurer (such as physiotherapy, massage therapy, etc.), the cost to hire healthcare workers to care for the injured person, and more.
Travel expenses, such as gas/mileage, car maintenance, hotel room accommodations, and parking are also compensable.
In the event of an estate claim, when an individual is alleged to have died as a result of the negligence, funeral expenses are also compensable.
If claims are advanced for services rendered or incurred expenses, supporting documentation may be necessary to substantiate these claims. It is important to retain all supporting documentation (receipts, invoices, bank accounts, etc.) if you are considering a potential medical negligence action.
Other Pecuniary Losses
While the FLA sets out specific pecuniary losses that are compensable, there are additional claims that can be made if they are linked to the alleged negligence. For example, a family member who has lost income because of the injury to a loved one may wish to advance a claim to be compensated for this loss. Generally, a FLA claimant can advance a claim for either a services rendered claim or a loss of income claim, but not both, in order to avoid duplication of recovery (i.e. if you took time off work to provide care to your injured family member you can be compensated either for the lost time off work, or the value of the services provided but not both). An experienced lawyer can help determine which method would have the highest chance of success and highest payment to the FLA claimant.
If the injured individual has died because of the alleged negligence, then any dependents of that individual (usually a spouse and minor children) may advance a dependency claim for the loss of the benefit of the income from their parent/partner. Expert accounting evidence is usually required to properly value and advance this claim.
As with other issues in medical negligence actions, this area is complicated and it is imperative to retain experienced counsel to maximize your claim, streamline the process, and provide you with reliable advice.
In assessing the damages for a potential medical negligence action, we:
- consider the legal and medical issues;
- gather the medical and expert evidence for the particular case;
- and based on our extensive experience, assess a reasonable range of damages that can be claimed and proven.
Do you require assistance with a potential medical malpractice action?
At Siskinds LLP, we have a team of lawyers and staff with expertise in medical negligence cases and health law, with extensive experience in assessing and litigating complex medical negligence cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.