This article on subrogated claims 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.
- An Introduction
- Non-pecuniary general damages
- Income loss
- Past and future expenses, including health care costs
- Family Law Act damages
- Subrogated claims (current article)
- Aggravated and punitive damages
- Battery and lack of informed consent
Subrogated claims arise when a third party has incurred expenses on your behalf as a result of the alleged negligence. The third party is entitled to recover those costs from the defendant. Generally, these claims are in addition to your claims and make the overall claim larger. The most common subrogated claims in a medical malpractice action are those of the provincial health insurer, as well as any benefits or long-term disability provider (depending on your specific contract with the insurer).
Provincial health insurer – the Ontario Ministry of Health and Long-Term Care
In Ontario the provincial health insurer is the Ontario Ministry of Health and Long-Term Care (i.e. OHIP). In Ontario, when an individual receives health care it is usually paid for by OHIP (there are some exceptions where you personally may have to pay a portion of the costs of treatment – if the costs are the result of the alleged negligence then they can be claimed as past expenses, as discussed in this article). If the health care treatment is proven at a trial to be caused by the alleged negligence then OHIP is entitled to recover the costs that they have incurred from the defendant. This entitlement is established by the Health Insurance Act in Ontario.
Private health benefits and disability benefits insurance providers
Another common subrogated claim is that of private health benefits and disability benefits insurance providers. The potential entitlement of these insurance companies is governed by the terms of the specific policy or contract that you executed with the insurance company. If there is a specific subrogation clause in your contract, these insurers may be entitled to any income loss or health benefits they have paid on your behalf, if those costs are proven at trial to be caused by the negligence of the defendants.
Government disability benefits providers
Across Canada there are a variety of government disability providers whose benefits may give rise to subrogated claims or re-imbursement obligations. In Ontario, the two most common government disability providers are Ontario Works and the Ontario Disability Support Program. Obligations and impacts of these claims may be significant. It is important to retain an experienced lawyer to assist with identifying and successfully navigating these potential complex claims appropriately.
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.
Kimberly N. Knight 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 Kimberly at [email protected] or call 877-672-2121.