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This article on damages for “lost years” 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

Future loss of income damages for “lost years”

Damages for “lost years” are awarded in cases in which a person’s life expectancy is shortened due to medical negligence. The calculation of loss of income in these cases is complex.

In Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital, the Supreme Court of Canada said: “[The Plaintiff] is entitled to an award for the loss of earning capacity, not only for the years she will actually live, but for the years she would have lived had she not been injured at birth.” The issue, however, was whether there should be a deduction from the claim for lost earning capacity for those “lost years” given that she would not be incurring ordinary living expenses during that time. The Court found that a fifty percent reduction for living expenses was reasonable. Each case, however, must be decided on its own facts.

Assume that medical negligence causes a woman at the age of 40 to become unemployable. Also assume that the same medical negligence reduces her life expectancy from the age of 80 to 50. She may claim for the loss of income from age 40 to 50 without any deduction. She is expected to live for this time and will incur ordinary living expenses. She therefore is entitled to her full income loss to age 50. Given that her life expectancy is now age 50, however, she will not be incurring living expenses beyond that age. The Court will assess her net loss of income from age 50 to age 80. The Court should also assess the effect of the loss of income on dependent family, for example, her children who would still be attending school. A negligent defendant should not benefit from a reduction of the plaintiff’s life expectancy which he caused and should fully compensate the plaintiffs for their losses.

Assessment of “lost years” claims

In assessing a “lost years” claim, the plaintiff’s likely income without the medical negligence must be determined.

Expert evidence is required to determine the plaintiff’s likely income. This includes an expert review of past earnings data, as well as future opportunities (promotions, etc.) and risks (layoffs, etc.). Additional expert opinion evidence is required to review the medical evidence to determine life expectancy.

Once the plaintiff’s likely income is determined, the Court then considers whether and to what extent there should be a deduction for expenses which would otherwise have been incurred but which no longer will be incurred. This deduction is highly context specific. Factors that are relevant include evidence of employment and prospective earnings, whether the household is a dual-income household, and actual living expenses.

Evidence to prove the loss of income is crucial, and expert evidence often is required to quantify the actual loss.

As with other issues in medical negligence actions, this area is complicated and highly specialized – 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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