This article about 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
- Subrogated claims
- Aggravated and punitive damages
- Battery and lack of informed consent
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. For an overview of this type of damages, please see our article here.
Pecuniary losses that can be claimed by FLA claimants include, among other things, serviced 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. Examples of this include a parent that now spends more hours than what they would have otherwise spent caring for their child, in order to provide care such as grooming, diaper changes, feeding, general hygiene, monitoring for issues, therapy, and more. These claims can also be used to compensate for housekeeping or other services provided. There are a variety of ways that these claims can be assessed, including as an hourly rate at market value for services, or as a lump sum.
FLA claimants can claim for expenses reasonable incurred for the benefit of the person who was injured or killed. These can include out of pocket expenses, such as for medical equipment, supplies, the cost to hire healthcare workers to care for the injured person, and more. Travel expenses, such as gas, car maintenance, hotel room accommodations, and parking are also compensable. Another example of reasonable expenses are funeral expenses, where the injured person has died.
Other pecuniary losses
The FLA sets out specific pecuniary losses that are compensable. These provisions are not comprehensive. For example, any loss of income as a result of the injury to your loved one is compensable. One thing to note is that a FLA claimant can generally make either a services rendered claim or a loss of income claim, but not both, in order to avoid duplication of recovery. An experienced lawyer can help determine which method would have the highest chance of success and highest payment to the FLA claimant.
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.
Expert accounting evidence may be required if a family member is advancing a dependency claim for the loss of the benefit of a loved one who is deceased as a result of the alleged negligence, or there is a loss of income advanced on behalf of a particular FLA claimant.
As with other issues in medical negligence actions, this area is complicated and highly specialized - 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.
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.