The potential damages attainable in a medical malpractice suit (if successful in proving negligence and causation) is a key consideration in determining whether or not a lawsuit is worth pursuing. The reality is that pursuing a medical malpractice claim comes with significant expense and risk that if unsuccessful, the Plaintiff/claimant may be ordered to pay the Defendants’ costs in addition to being left to bear the costs they incurred in pursuing the claim.
For these reasons, it is essential to weigh the potential upside of pursuing the claim against the financial risk.
In order to determine what potential value a claim in Alberta or elsewhere in Canada may have, one must consider the various heads of damages that can be pursued. The following heads of damage should be considered where an individual has suffered injury as a result of medical negligence:
- General damages (or non-pecuniary damages) are awarded to compensate injured individuals for the pain, suffering and loss of amenities of life that have resulted from the Defendants’ negligence. Unlike the United States, where huge amounts are sometimes awarded by Judges and Juries under this head of damages, in Canada there is a maximum amount that can be awarded for general damages. With inflation, the maximum award for general damages in Canada is approximately $360,000. This award would be granted only in the case of the most catastrophic, life altering injuries.
- Special damages (or out-of-pocket expenses): One can pursue a claim for any out of pocket expenses that they have incurred, which they would not have occurred but for the Defendant’s negligence and resulting injury/outcome. For example, if as a result of a surgeon’s negligence, a fractured leg does not heal properly and the individual is left with chronic pain and restricted mobility, they could claim expenses they incurred for a walking cane, pain medications, etc.
- Income Loss or Loss of Earning Capacity. Where a person is left with injury or disability that has affected or will affect their employability or ability to earn an income, damages can be sought for any loss of income to date, expected future loss of income and/or loss of earning capacity. Where a person is left with permanent disability or restriction, this portion of a claim can be extremely significant.
- Loss of Housekeeping Capacity. A claim for loss of housekeeping or home maintenance capacity should be pursued where an individual’s injury has resulted in limitations or inability to complete chores or tasks around the house that they would have completed themselves prior to their injury. While there are divergent views in the court decisions in Alberta as to whether loss of housekeeping capacity should form its own head of damages or whether it forms a part of the general damages, we take the position that where a person has suffered significant injury that has limited their abilities around the house, compensation for that specific loss is warranted.
- Cost of Future Care. Along with loss of income, in many cases of medical negligence (particularly those involving birth injury), cost of future care makes up the most significant portion of the claim. The majority of medical negligence claims our office handles deal with catastrophic and permanent injuries, for which the individual will require life-long medical care and supports. While certain aspects of their care may be covered by the Provincial healthcare system, a significant portion of treatment and supports required must be privately funded and can result in an enormous financial burden on the injured individual and their family. Where an individual is left with catastrophic injury and disability for which they will require ongoing care in the form of: therapies, medications, medical equipment and supplies, home modifications, home support, housekeeping assistance, transportation, etc., any claim for damages against the Defendant(s) must include a claim for the expected future costs of these items.
There are other specific heads of damage that can apply in certain cases of medical negligence, such as loss of shared family income and in-trust claims for family members, the applicability of which is determined on a case-by-case basis.
Where a claim is being brought by the family or estate of someone who has passed away as a result of a medical error or medical negligence, many of the above outlined heads of damage cannot be claimed. Different heads of damage are claimable pursuant to the Fatal Accidents Act in Alberta and similar legislation in other provinces. In these cases, the surviving parents, spouse and children may claim damages for bereavement (which claims are limited to specific amounts set out by legislation), loss of support (in the form of income and household support), funeral expenses, etc.
There are a number of factors that go into the decision on whether or not to pursue a legal claim, one of the most important of which is considering what damages can be claimed and the potential quantum of those damages.
Commencing a medical malpractice claim is not something that should be taken lightly. We strongly urge anyone considering pursuing a medical malpractice claim to obtain legal advice from a lawyer with experience in this area.