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This article on contingencies 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 between individuals.

The assessment of damages is a process that evolves as the evidence becomes fully developed; specifically, in cases involving significant injury, medical and expert assessments are 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. The basic principle is to restore plaintiffs to their pre-injury financial positions. Income loss to the date of trial and into the future are usually quantified based on past earnings, employment history and data, as well as on expert evidence for prospective earnings.

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.

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
    • Overview
    • Services rendered, expenses incurred, and pecuniary losses
  6. Other
    • Subrogated claims
    • Aggravated and punitive damages
    • Battery and lack of informed consent

Contingencies and how they affect your potential damages award

Courts in Ontario have recognized that future loss of income cannot be precisely determined. Judges have described the process as more “art” than “science”. Positive and negative contingencies are a relevant factor that must be considered when trying to quantify a potential medical malpractice action. Graham v Rourke is a useful starting point for a discussion of these contingencies. A few key paragraphs of the case read:

A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss.

Factors affecting the degree of risk of future economic loss and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

Thus, when assessing a claim for loss of future earning capacity, one must consider factors that may increase or decrease the potential loss of earnings. For example, negative contingencies can include labour market variables such as non-participation in the work force due to unemployment or part-time employment. Other negative contingencies may be health related.

Positive contingencies, on the other hand, are contingencies which may have increased future earnings. For example, someone starting a career may be expected to advance in that career, be promoted and correspondingly receive increased earnings. Someone may have greater earnings potential with education, training or experience, which now cannot be realized.

One must also consider contingencies that are general to all people, as well as specific to an individual plaintiff. This is especially true in medical malpractice cases, where plaintiffs often have pre-existing conditions that require treatment and may result in long-term consequences to their ability to work, even without considering the effects of surgical negligence, a delay in diagnosis, negligent treatment, etc. As Graham says:

… contingencies can be placed into two categories: general contingencies which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness; and “specific” contingencies, which are peculiar to a particular plaintiff, e.g., a particularly marketable skill or a poor work record. The former type of contingency is not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs.” A trial judge may, not must, adjust an award for future pecuniary loss to give effect to general contingencies but where the adjustment is premised only on general contingencies, it should be modest.

If a plaintiff or defendant relies on a specific contingency, positive or negative, that party must be able to point to evidence which supports an allowance for that contingency. The evidence will not prove that the potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of the contingency is a realistic as opposed to a speculative possibility.

Conclusion on Contingencies

When assessing damages in a medical malpractice action, one must keep contingencies in mind. One must consider the various positive, negative, general, and specific contingencies that may affect a potential damages award. As you can imagine, this area is complicated. It is imperative to retain experienced counsel to maximize your claim, streamline the process, and provide you with reliable advice.

In assessing the damages for a potential medical negligence action, we:

  • consider the legal and medical issues;
  • gather the medical and expert evidence for the particular case;
  • and based on our extensive experience, assess a reasonable range of  damages that can be claimed and proven.

Do you require assistance with a potential medical malpractice action?

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

Christopher A. Fazio is lawyer in of 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.

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