This article on non-pecuniary general damages 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 as between individuals.
The assessment of damages is an ongoing process that evolves as the evidence becomes fully developed over the duration of a case; specifically, in cases involving significant injury, medical and expert assessments may be 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, attempting to put them back into the position they would have been in had the negligence not occurred. Certain categories of damages, such as future income loss, are usually quantified based on past performance and data, as well as expert evidence.
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 (current article)
- Income loss
- Past and future income loss
- Lost years
- 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
Non-pecuniary general damages (pain and suffering and loss of enjoyment of life)
Non-pecuniary general damages are awarded for the pain and suffering that an injured person has endured and will endure in the future, as well as the loss of enjoyment of life experienced by the injured person, as a result of the negligence. This involves comparing the injured person's current and prospective abilities and enjoyment of life to their abilities and enjoyment prior to the alleged negligence.
Limit on amount awarded for non-pecuniary general damages
In Andrews v Grand & Toy Alberta Ltd. (1978), the Supreme Court of Canada established a limit of $100,000.00 on the amount of pain and suffering damages that can be awarded. After inflation, this limit is approximately $390,000.00. The courts have acknowledged that it is not "true restitution" as no amount of money can replace what has been lost. The imposed limit is due to public policy reasons. The non-pecuniary general damages amount is to compensate for pain, suffering, and loss of enjoyment of life is in addition to any of the other applicable categories of damages, such as loss of income, future care costs, etc.
In Andrews v Grand & Toy Alberta Ltd, the Plaintiff, (the injured person) was a young adult quadriplegic who had been athletically active and socially outgoing prior to his injuries. Typically, non-pecuniary general damages in this upper range are for persons with significant life-altering injuries such as quadriplegia, paraplegia, brain damage, or a stroke. Obstetrical negligence, or children that are injured at birth, such as those with cerebral palsy or other significant brain damage or deficits, may be awarded this maximum amount if medical malpractice causing lifetime substantial harm is proven.
No deductible or threshold for medical negligence actions
Unlike a personal injury claim that is subject to the Ontario Insurance Act there is no statutory pre-set deductible or "threshold" in a medical negligence action.
Assessment of non-pecuniary general damages in a medical negligence action
In medical negligence cases, causation impacts the assessment of damages. Causation is the relationship between the negligence and the patient's ultimate condition. Damages are assessed based on the difference between the original medical condition (with standard care) and the impact (worsening) caused by the intervening negligence. It must be considered whether, and to what extent, the outcome would have been improved with appropriate care. The Court will only compensate the plaintiff for the harm caused by the negligence and not the natural consequences of the underlying condition managed with an appropriate standard of care.
In assessing non-pecuniary general damages, the Court will consider both the medical harm and its impact, physically and psychologically. The Court will consider the impairments suffered, the degree of pain or discomfort, and the impact on function. Medical evidence is necessary for the Court to assess impairments, the expected duration, and the likelihood of any improvement or worsening over time. Other evidence may be necessary for the Court to consider how impairments effect activities of daily living for the individual based on their previous and anticipated activity. The Court will also need to consider whether life expectancy has been impacted as a result of the negligent care.
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 that specialize in medical negligence cases and health law, with extensive experience assessing and litigating complex medical negligence cases.
Originally Published By Siskinds, November 2020
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.