In medical negligence cases, patients and families are often left dealing with physical injuries, emotional trauma, financial stress, and uncertainty about the future. In Ontario, medical malpractice claims are designed to compensate individuals and families for those losses.
If you are considering a claim, it helps to understand the types of compensation (also referred to as damages) that may be available.
General Damages (Pain and Suffering)
General damages compensate for:
- Physical pain
- Emotional suffering
- Loss of enjoyment of life
- Psychological injuries (such as depression, anxiety, PTSD)
In Canada, general damages are subject to a cap established by the Supreme Court of Canada. The cap applies to all personal injury claims, including medical malpractice, and is adjusted for inflation. The cap currently stands at approximately $470,000.
Past and Future Income Loss
If medical negligence affects a plaintiff’s ability to work, they may be able claim past loss of income. This is compensation for wages or business income from the date of the injury to trial. If an injury permanently impairs an individual’s ability to work, they may be compensated for future losses as a result of their reduced earning potential over their lifetime.
Factors such as age, education, career trajectory, and what the plaintiff likely would have earned but for the negligence, are all taken into consideration when assessing these claims.
Past Attendant Care
If family members have provided care to an injured plaintiff since the time of the injury, a claim can be made for the reasonable value of those services. This is the case even if family members provided care without pay.
Ontario courts recognize that caregiving has economic value. Detailed records, which include time logs and descriptions of the care tasks provided are particularly helpful in proving these claims.
Future Care
In serious malpractice cases, especially birth injury or catastrophic injury claims, future care can be the largest component of damages. This can include treatment such as:
- Therapy (physiotherapy, occupational therapy, speech therapy)
- Medications
- Personal support workers
- Rehabilitation support workers
- Assistive devices
- Home modifications
- Mobility equipment
Typically, plaintiffs are assessed by medical professionals (such as an occupational therapist) who opine on the level of care a plaintiff will require into the future and for the remainder of their lifetime. The cost of this care is also quantified by experts.
Out-of-Pocket Expenses
These are quantifiable financial losses that are incurred by plaintiffs such as:
- Funeral expenses (in the case of a wrongful death claim)
- Travel to medical appointments
- Prescription costs
- Medical equipment
- Rehabilitation expenses
- Parking and accommodation costs
Documentation is vital when advancing these claims. It is very important to keep all supporting invoices and receipts in order to substantiate a claim.
Family Law Act Claims
Ontario’s Family Law Act allows certain family members to claim compensation when a loved one is injured or dies due to negligence. These are often referred to as “Family Law Act claims” or “FLA claims.”
Eligible claimants may include:
- Spouse
- Children
- Parents
- Grandparents
- Siblings
Family members may claim damages for a loss of care, guidance and companionship, loss of household services and expenses incurred as a result of the injury.
Loss of Services
When an injured person can no longer perform household tasks such as childcare, cooking, cleaning and general home maintenance, the cost of replacing those services may be claimed.
In a wrongful death claim, a loss of services claim compensates the family for the loss of unpaid work the deceased performed around the home. Even if the deceased did not earn an income outside the home, the services they provided carry real economic value. Loss of services claims focus on childcare, housework, maintenance, yard work, or assistance caring for elderly relatives.
Dependency Loss Claims
When medical negligence results in death, surviving family members may bring a dependency claim.
A dependency loss claim compensates family members who relied financially on the deceased. This often includes a spouse or children who depended on the deceased’s income to support day-to-day living. The purpose of this claim is to replace the financial contribution the deceased would have made had they lived.
The following must be examined when assessing this type of claim:
- The deceased’s income and benefits (including wages, pensions, and employment insurance)
- The deceased’s projected career path and likely future earnings
- The financial needs and life expectancy of the surviving dependents
Experts such as actuaries or economists quantify the anticipated lost income over the deceased’s expected working years, adjusted for tax and other contingencies.
OHIP Subrogated Claims
In many cases, the Ministry of Health advances a claim to recover the cost of publicly funded healthcare services provided to an injured person. While we have government funded healthcare, the Ministry is statutorily entitled to recover for any healthcare services provided to an injured person, due to the defendant’s negligence.
This is typically advanced as part of the plaintiff’s claim. It does not reduce the injured person’s compensation directly, but it is a component of the overall claim. It is important to note that these claims can be very substantial depending on the care and treatment provided.
Pre-Judgment and Post-Judgment Interest
Ontario law allows successful plaintiffs to claim interest on damages, recognizing the time it takes for cases to resolve.
Medical malpractice cases are complex and vigorously defended. Understanding the full scope of damages is essential to maximizing recovery for an injured party. Contact us today to discuss your case and ensure you receive the compensation you deserve.
