Medical Negligence – What can a medical negligence action accomplish?

Written by on August 04, 2017.

Many individuals who have suffered an adverse event within the health care system may consider pursuing a medical negligence action. For information and a discussion on what constitutes a medical negligence action, please refer to our previous article, which can be accessed here. Within this article, the purpose of a medical negligence action will be discussed. When contemplating commencing a medical negligence action, individuals and their families may wonder:

  • What can be accomplished in a medical negligence action?
  • What expenses or losses can form part of a medical negligence claim?
  • Can a medical negligence action compel an apology, loss of privileges or other disciplinary matters?

Within this article, the answers to these questions will be explored in a general sense. If you are contemplating whether or not to pursue a medical negligence action, it is important that you contact a lawyer in a timely fashion to address the specifics of your potential case, including any applicable limitation periods.

What can be accomplished in a medical negligence action?

As with any negligence action, the purpose of a medical negligence action is to endeavour to put the harmed party in the position they would have been but for the negligence. In a medical negligence action, financial compensation is claimed for pain and suffering, as well as any expenses, caused by the medical negligence.

Financial compensation is usually important for those individuals who are no longer able to work, or who require extensive future care and treatment, as a result of medical negligence (i.e. quadriplegic, brain injury, stroke survivor, cerebral palsy, etc.). In situations where these losses are ongoing, both past and future expenses are calculated to form part of the claim.

What expenses or losses can form part of a medical negligence claim?

Generally speaking, a claim for medical negligence may include compensation for the pain and suffering caused, past expenses (including medications, therapies, aids, attendant care, etc.), past loss of income, future health care costs, and future loss of income or loss of competitive advantage in the work force. In Ontario, certain family members of an injured individual may also claim for financial compensation for “loss of care, companionship, and guidance”, as well as compensation for expenses incurred and services rendered.

In the usual course, the Ontario Ministry of Health and Long-Term Care will have a subrogated claim for health care expenses. There may also be other subrogated claims for benefits received by the injured individual (i.e. insurance benefits, short-term disability, ODSP, etc.). Although a claim can be made for punitive damages, such damages are rarely awarded in medical negligence actions.

The expenses and losses that can be claimed in a medical negligence action, as well as the factors considered in assessing those claims (known globally as damages) in a medical negligence action, will be covered in more detail in upcoming articles.

Can a medical negligence action compel an apology, loss of privileges or other disciplinary matters?

No, a medical negligence action cannot compel and apology, loss of privileges or other disciplinary matter. A medical negligence action is a claim for financial compensation for the losses or harm caused by the alleged medical negligence.

A medical negligence action cannot compel:

  • An apology
  • The discipline of a health care provider
  • Loss of privileges or licensing of a health care provider
  • The termination of a health care provider’s employment
  • The change of policies of a health care institution

The governing bodies of health care providers (i.e. College of Physician and Surgeons Ontario, College of Nurses Ontario, etc.) provide mechanisms through which complaints against a health care provider may be lodged and investigations conducted. These governing body have discretion about what, if any, disciplinary measures may be taken against the health care providers for which they are responsible.

After an adverse event within the health care system, individuals and their family members are often looking for answers and explanations from the health care providers and institutions that were involved. As part of a medical negligence action, there is usually documentary and oral discovery. These processes are in place to facilitate a record of the relevant information. There are no guarantees as to what information will be discovered. Only relevant and available information is compellable.

A medical negligence action aims to compensate individuals who have been injured by medical negligence through financial compensation. If you or a family member have experienced an adverse event in the health care system and are considering a medical negligence action, it is important that you contact a lawyer, in a timely fashion, to discuss the specifics of your potential case.

At Siskinds LLP, we have a group of lawyers and staff that specialize in medical negligence cases and health law. Kimberly N. Knight is an associate lawyer practicing health law, with a focus on medical negligence litigation. If you have any questions or would like more information on this topic, please contact Kimberly N. Knight at kimberly.knight@siskinds.com or call 877-672-2121.

Posted in Medical Malpractice, Practice Areas, Publications