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This article on past and future income loss 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

Past and future income loss

If an injured person is unable to work because of medical negligence they are entitled to advance a claim for the loss of that income. The quantum of an individual’s income loss claim will depend on the employment history and circumstances, as well as the medical details of the negligence claim. Accounting and medical expert evidence is required to properly and fully evaluate a case and establish a link between the injuries suffered and a loss of income. Expert opinion evidence is usually required to assess the value of the past and future income loss, based on employment data and future contingencies (such as promotions) and risks. Expert medical evidence is usually required to establish the impairments and injuries caused by the negligence that impair the ability to continue with work.

Additional expert evidence is required when a medical negligence claim involves a child injured at birth with resultant impairments such as cerebral palsy, brain injury, or other impairments that render the child permanently unemployable. The future income loss claim for that child will require specialized evidence and calculations to assess, quantify, and present the loss.

No access to funds unless successful at trial or a settlement

Unlike motor vehicle accidents, where there may be access to “accident benefits” under the Statutory Accident Benefits Schedule, no financial compensation is paid by the defendants unless there is a settlement, or the injured person has been successful at trial. There is no requirement for payment of any income losses unless and until the defendants are found to be liable for medical negligence or there is a settlement.

An injured person may be able to access short term or long term disability benefits through their work or income loss benefits from a private insurer (independent of the medical malpractice action) but the defendant health care professionals have no obligation to pay unless the medical negligence action is successful at a trial or there is a settlement.

Income loss benefits provided by a private insurer (Canada Life, Manulife, etc.) may give rise to a subrogated claim on behalf of that insurer depending on the contract between the injured person and the insurer. We will discuss these potential subrogated claims in a later article.

No deductions for private insurance

Claims for past and future income loss in medical negligence actions may be subject to deductions of income that have been received, or will be received, depending on the individual circumstances and whether the income received is subject to the private insurance exception. The private insurance exception, articulated by the court in Cunningham v Wheeler1, provides that if the injured person has paid for private insurance, the defendants should not get the benefit of the injured person’s prudence. Whether or not this exception applies to a particular injured person will depend on the specific facts of that case. This is different from a motor vehicle accident where the Ontario Insurance Act sets our specific rules and regulations around income loss benefits and deductibility.

Assessment of past and future income loss in a medical negligence action

In assessing the past and future income loss of a plaintiff, the plaintiff’s likely income without the medical negligence must be determined. This often requires expert evidence to assess the past earnings date, as well as positive contingencies (promotions) and negative contingencies (layoffs) to quantify the loss. Only the income loss attributable to the alleged negligence is compensable.

For example, if a plaintiff suffers a significant injury, such as brain injury, stroke, or quadriplegia, and are no longer able to perform the duties of their job they are entitled to their loss of income. In contrast, if a plaintiff was unable to work due to a pre-existing condition prior to the alleged negligence then they would be unlikely to receive any award for income loss.

If a plaintiff has an established employment history, factual evidence is needed regarding future plans and retirement, combined with expert evidence to evaluate the loss. Loss of pension income can also be claimed in addition to loss of employment income.

If a plaintiff does not have an established employment history, economic and statistical evidence can be assembled to establish probable lifetime earnings based on education. In obstetrical or pediatric cases, further medical or neuropsychological evidence may be required to establish education and earnings potential pre-injury compared to post-injury.

Loss of income from an inability to carry on a business requires accounting and other evidence to establish the loss of income, including lost potential for future earnings.

The courts in Ontario have recognized that future loss of income claims cannot be precisely determined. Contingencies for the future are based on a “real and substantial possibility” test, for both positive and negative contingences. Specific contingences are also considered based on medical evidence specific to the plaintiff. This is especially significant in medical malpractice cases where often the plaintiff had a pre-existing condition requiring treatment which may have had longer term consequences even without the effects of a delay in diagnosis or negligent treatment. We will discuss the effect of contingencies in a later article.

A plaintiff may also advance a loss of competitive advantage claim. This is often advanced in circumstances where a plaintiff has returned to employment but is at a disadvantage for future opportunities and advancement due to the alleged negligence.

A plaintiff who has a shortened life expectancy due to the alleged negligence may also advance a claim for “lost years”, which is discussed in further detail in a later article.

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 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.

1 Cunningham v Wheeler, [1994] 1 SCR 359, 1994 CanLII 120 (SCC)

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