The term "damages" refers to the compensation sought by plaintiffs in their actions against another party, which, in a health law matter, is often one or more health care professionals. The usual cause of action is based on negligence. An assessment of damages is made in every action whether the plaintiff is successful or not.
The global quantum of damage awards in health law actions has been on a steady rise. This is so despite the reported decrease in the number of actions commenced against health care professionals. What then is the process of assessing damages in such actions and why is the average quantum awarded on a steady rise?
The methodology of assessing such damage awards was set out in 1978 by the Supreme Court of Canada (SCC) in Andrews v. Grand & Toy Alberta Ltd. Although this involved a motor vehicle accident, the principles of assessment are the same. The SCC’s general approach was as follows:
There is a duty to be reasonable. There cannot be "complete" or "perfect" compensation. An award must be moderate and fair to both parties. Clearly, compensation must not be determined on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution. But, in a case like the present, where both Courts have favoured a home environment, "reasonable" means reasonableness in what is to be provided in that home environment. It does not mean that Andrews must languish in an institution which on all evidence is inappropriate for him. The ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims against him are legitimate and justifiable.
The courts have established various heads of damage through which the goal of fair compensation is determined. There is also an important distinction made between pecuniary (money) and non-pecuniary losses. The goal is to award as close to perfect pecuniary compensation as is possible while limiting the award for non-pecuniary losses, such as pain and suffering, loss of amenities and loss of expectation of life.
The heads of damage are as follows:
The quantum of gross damage awards becomes easier to understand knowing what the heads of damage are. It is easy to see that as the costs of goods and services rise, so do the awards for future care and special damages. Further, as the income earned by individuals rises, so do the awards for loss of future earnings. Finally, the upper limit of non-pecuniary damages awarded by a court is now $388,319 as of June of this year. That in itself is almost a four-fold increase.
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).