For many people, when considering a medical negligence (also known as a medical malpractice) action, the amount of the potential damages (financial compensation) is not the paramount concern. Often persons who have suffered harm at the hands of a health care professional want to ensure that what happened to them does not happen to anyone else. A medical negligence action is a civil lawsuit to seek financial compensation; it is not a process that allows individuals to seek discipline of a health care professional or changes to policies and practices. As financial compensation is the goal of a lawsuit, it is important to understand the different categories of damages that can be advanced as part of a medical negligence claim.
Types of damages in a medical negligence case
The following is a series of articles that discuss the types of damages that may be claimed as part of a medical negligence case. However, 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.
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. The following topics will be the subject of additional posts in the coming weeks:
- An introduction (current article)
- Non-pecuniary general damages (pain and suffering, and loss of enjoyment of life)
- Income loss
- Past and future income loss
- Lost years
- Past expenses 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
Damages in a medical negligence case differ from a personal injury case following a motor vehicle collision. The same underlying principles of calculating damages apply, but there are legal and practical differences in how damages for injuries are assessed and calculated as between cases of medical negligence and personal injury cases that are subject to the Ontario Insurance Act (i.e. a motor vehicle collision) will have insurance policies which provide certain benefits. These affect how damages are calculated and are not applicable to medical negligence action.
The harm suffered as a result of medical malpractice may extend beyond the type of traumatic injuries suffered in motor vehicle collisions. These harms may include injuries to vital organs and structures resulting in stroke, brain damage or quadriplegia, etc. Delay in diagnosis cases are even more complex. These cases may involve stroke or cancer. Life expectancy may be shortened, which adds to the complexity of assessing damages
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. In assessing a potential medical negligence action, this team considers:
- The legal and medical issues;
- gathers the medical evidence for the particular case;
- and based on their extensive experience, assesses 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.