Medical malpractice cases are very complex.
This series of articles by BC personal injury and BC medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Find out what is involved in these difficult cases.
#1 Quantifying Damages in Medical Malpractice Cases
Damages in BC medical malpractice claims are quantified just like any other personal injury action in BC.
There are several categories of damages which you can claim for, including:
- Damages for Pain and Suffering
- Loss of past wages and future wages
- Costs of future care
- Out of pocket medical costs
- A portion of your Legal fees
- Other (“ In Trust” claims, Loss of interdependent relationships, punitive damages)
A) PAIN AND SUFFERING
This is an amount to compensate you for the effects the injury has had on your life, the “pain and suffering”, and “loss of enjoyment of life”.
The lawyers ( and court) will compare your injuries to similar injury awards given by courts in the past ( a “precedent”). These can often vary dramatically , even for seemingly similar injuries.
The amount for “pain and suffering” is capped in Canada. No matter how severely injured you are, your damages for this head of damages cannot exceed the guidelines set down by the Supreme Court of Canada in 1978 in three cases that dealt with this issue. In the SCC decision known as “The Trilogy” (as there were three cases all dealing with the same issue..what is the maximum you can get for this head of damage)the SCC arbitrarily set the amount at $100,000 . This was in 1978 dollars, so the amount today, with COLA since 1978, is a little over $330,000. This would be the maximum amount for pain and suffering for someone who suffered a catastrophic spinal or brain injury.
The amount awarded for lesser injuries varies depending on previous awards for similar injuries.
B) LOSS OF INCOME
This is an amount that compensates you for your loss of income , past and future. These claims are complex when you have infants or adolescents. They are also complex if you were self-employed prior to the injury. Many experts are often required to prove pre-accident incoming potential, and your employability with your injury.
C) COST OF CARE
This is an amount to compensate you for the costs of all future medical care. This can be very complex, and often requires numerous experts on mobility issues ( wheelchairs, vans, lifts), housing options, care aid costs, medication costs, and alterations to the home. Large claims are often comprised of substantial care costs, into the millions of dollars. One of the issues dealt with in future care claims, is the issue of how may years in the future will the costs be required? This is the life expectancy issue, which is hotly debated between plaintiff and defence teams. The defence will always argue in serious injuries ( brain injuries and spinal injuries particularly), that the injury will likely reduce the life expectancy of the injured party. Both sides retain experts on this issue.
D) OTHER DAMAGE ISSUES
Many other issues arise in damage claims, including “in trust” claims (an amount to compensate family for care giving prior to trial) Loss of Interdependent Relationships ( an amount may be awarded for this if the person is so severely injured their likelihood of entering into a long term relationship is reduced), and others. These claims often require many experts in various fields.
E) SPECIAL DAMAGES
These include certain out of pockets expenses incurred prior to trial or settlement.
F) COSTS
These include allowable out of pocket expenses to bring the matter to trial, and a small portion towards actual legal fees . The amount towards fees is set out in a tariff, and is very small in comparison to actual legal fees in a complicated personal injury action.
SPECIAL CONSIDERATIONS IN WRONGFUL DEATH ACTIONS
Should someone die as a result of poor medical care, their immediate family is entitled to sue for damages under the Family Compensation Act.
These actions are complicated, and the Family Compensation Act limits the amount of damages. In essence, the award is limited to the financial contribution the deceased provided to his/her family. There is nothing awarded for grief or solace. Very little is awarded for the loss of a child, making pursuing medical malpractice cases in these instances non-economic. Many groups and individuals are trying to have this legislation changed, as they deem it very unfair for families who have lost a loved one. They want the province to repeal the Family Compensation Act, and amend the Estate Administration Act, which together prevent damages from being awarded in wrongful death suits in cases where the victim was a child, or not a breadwinner. Some are suggesting a Wrongful Death Accountability Act that would extend the ability of family members to sue for the loss of all loved ones, regardless of age or earning capacity. So far the provincial government does not have the appetite to change the status quo.
In summary, quantifying damages in medical malpractice actions is very complex and very expensive, given the substantial number of experts involved.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.
Paul has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
