Assessing medical malpractice damages—past and future expenses including health care costs

This article on past and future expenses including health care costs 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
   • Past and future income loss
   • Lost years
   • Contingencies
4. Past and future expenses, including health care costs (current article)
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

Past and future expenses, including health care costs

An individual who has been injured or killed by the alleged negligence, may advance a claim for any past expenses that have been incurred as a result of that negligence. They may also claim for any reasonable future expenses that will be incurred as a result of the negligence. These expenses include health care costs paid for by both the individual as well as the Ontario Ministry of Health and Long-Term Care (“OHIP”) and possibly third-party benefits providers. Past and future expenses are not limited to medical expenses, although that is what this article focuses on. For example, if an individual requires additional services such as housekeeping, yardwork, etc., as a result of the alleged negligence then those expenses may also be advanced in a medical negligence action.

Assessment of past and future medical expenses

Expert evidence is required to properly assess a case and determine the quantum and duration of health care costs causally related to the injuries caused by the negligence. Expert medical evidence is usually required to establish which injuries and impairments were caused by the negligence and what future care will be required for the treatment and management of those injuries and impairments. Further expert evidence is usually required to properly quantify the cost of the care (past and future) that is related to the alleged negligence.

Past medical expenses

Claims for medical expenses incurred through medical negligence by the individual or family may include:

• hospital parking
• mileage for travelling to medical appointments
• medications
• medical treatment that are not covered by the province or a benefits provider

For example, an individual who has suffered a stroke or is a paraplegic/quadriplegic, may require mobility aids such as a cane or wheelchair. In order to be claimed, these expenses must be the result of the negligence, such that if the negligence had not occurred the expenses would not have been incurred by the individual (i.e. if the individual used a wheelchair prior to the alleged negligence then the cost of the wheelchair would not be compensable).

If there are pre-existing conditions that are unrelated to the alleged negligence than expenses for those conditions would not be included. To the extent that a pre-existing condition is proven to have been worsened by negligence then partial compensation of those expenses may be warranted.

Future medical expenses

Future expenses that flow from the negligence may also be claimed. Ongoing health care expenses, as a result of the negligence, are a common and often significant portion of claims for future expenses. For example, a person who has suffered a significant brain injury may require 24-hour care or supervision for a specific time period or indefinitely. If it is established that this brain injury was caused by the negligence and would have been avoided had the defendant met the standard of care, then these future expenses should be included in a medical malpractice claim.

No access to funds, including health care funds, unless successful at a 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 medical expenses, health care costs, rehabilitation costs, or other related expenses 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 health benefits through their work or 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.

Health care 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. Health care costs covered the provincial health insurer (i.e. the Ontario Ministry of Health and Long-Term Care), give rise to a subrogated claim on their behalf. We will discuss these potential subrogated claims in a later article.

You may wish to consult with a tax lawyer to determine whether medical expenses arising from a medical negligence action are eligible CRA medical expenses and what, if any, implications may arise if you are successful in recovering those expenses during a lawsuit.

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.