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This article on punitive and aggravated damages is part of a series of articles that discuss the types of damages that may be claimed in a medical negligence case. It is important to note, however, that 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.

Damages in a medical negligence action

Generally, in a medical malpractice action in Ontario, damages are meant to compensate a person for the injuries suffered as a result of medical negligence, attempting to put them back into the position they would have been in had the negligence not occurred. Certain categories of damages, such as future income loss, are usually quantified based on past performance and data, as well as expert evidence.

Other categories of damages, such as non-pecuniary general damages (pain and suffering), are more qualitative in nature and are usually quantified based on previous case law that attributes a financial value to the impact that injury or impairment has had on the person’s life. In addition to knowledge of the existing case law, assessment of these qualitative damages requires an understanding of the complex medical and scientific issues underlying the injuries and impairments involved.

For more information on the requirements for a successful medical malpractice case and the purpose of a medical malpractice case, please follow the links below:

An introduction to medical malpractice: Do I have a case?

What can a medical negligence action accomplish?

Assessing medical malpractice damages

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.

Below are a series of articles related to assessing medical malpractice damages. The topics not linked will be the subject of additional posts in the coming weeks.

  1. An Introduction
  2. Non-pecuniary general damages
  3. Income loss
  4. Past and future expenses, including health care costs
  5. Family Law Act damages
  6. Other
    • Subrogated claims
    • Aggravated and punitive damages (current article)
    • Battery and lack of informed consent

Punitive Damages

Punitive damages are only available in the most exceptional of cases. Unlike other categories of damages, punitive damages are not intended to compensate the plaintiff for their loss. Rather, punitive damages are intended to punish the defendant for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency[1]”. Punitive damages may be awarded to deter others from engaging in similar behaviours and as a punishment. In a medical negligence action, the defendant’s conduct must be egregious to attract punitive damages[2].

Punitive damages are rarely awarded in medical or other professional negligence actions. There may be scope for a claim of punitive damages if there is egregious misconduct by a defendant practitioner, for example, in cases of sexual assault.  Other instances might include fraudulent conduct for profit, for example, the promotion of “treatments” that do not have therapeutic benefit and have the potential for harm, or “sham” treatments, which then cause harm.

Aggravated Damages

D’Souza v Home Depot,[3] a recent breach of contract case, outlines aggravated damages well.

Aggravated damages are compensatory in nature, which means evidence of injury is required to be awarded these damages. They are measured by the consequences to the plaintiff, as opposed to the conduct of the defendants. They are available where the damage to the plaintiff was aggravated by the manner in which the act was committed. They take in to account intangible injuries such as increased psychological harm, humiliation, distress, indignation, fear, grief and more. This type of claim is not categorized as its own head of damages, but rather is an augmentation of the general damages awarded. Due to this fact, if a plaintiff has already reached the “cap” on non-pecuniary general damages, no further damages would be awarded for aggravated conduct.

Aggravated damages are generally awarded in cases of breach of contract where mental distress is alleged, or for a separate cause of action like defamation, oppression, or fraud. It should also be noted that aggravated damages are not available to Family Law Act claimants. Despite this, aggravated damages can be claimed in the realm of medical negligence in some cases, based on the nature of the defendant’s conduct, if the conduct has caused significant mental distress requiring treatment. These damages are rarely ever awarded in the medical malpractice context.

Speaking to an experienced medical negligence lawyer can help determine if aggravated damages would be available to augment the claim in your case.

Conclusion on Punitive and Aggravated Damages

Punitive damages can be thought of as relating to misconduct or the motive behind an inappropriate “treatment” provided by the healthcare provider, whereas aggravated damages can be thought of as relating to the outcome for the patient. This area of law is complicated – retaining experienced counsel is important to maximize your claim, streamline the process, and provide you with reliable advice.

Do you require assistance with a potential medical malpractice action?

Contact our experienced medical malpractice lawyers.

At Siskinds LLP, we have a team of lawyers and staff with expertise in medical negligence cases and health law, with extensive experience assessing and litigating complex medical negligence cases.

Christopher A. Fazio is lawyer in Siskinds’ Medical Malpractice and Health Law Group. If you have any questions or would like more information on this topic, please contact Christopher at [email protected] or call 877-672-2121.

[1] Hill v Church of Scientology of Toronto, 1995 CanLII 59 (SCC)

Whiten v Pilot Insurance Co., 2002 SCC 18 (CanLII)

[2] Kram v Oestreicher, 2019 ONSC 3813 (CanLII)

[3] D’Souza v. Home Depot, 2019 ONSC 2330

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