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.
It is no surprise that the COVID-19 pandemic continues to affect the delivery of health services and the regulation of various health professions.
In a welcomed move, the College of Physicians and Surgeons of Ontario (CPSO) Council recently approved a new registration policy allowing the Registration Committee to issue a Certificate of Registration authorizing Independent Practice to applicants who have not completed Part II of the Medical Council of Canada Qualifying Examination (MCCQE).
The test for the standard of care in medical negligence cases has remained untouched since the Supreme Court of Canada’s 1995 decision in ter Neuzen v. Korn.
On January 18, 2021, the Supreme Court of Canada heard the appeal in Armstrong v. Ward. Their unanimous decision maintains the status quo with respect to the standard of care in medical negligence cases.
Like other professionals, pharmacists have been adjusting to an expanded scope of practice as all health professionals work to combat the COVID-19 pandemic. We wrote about some of these changes in our previous blog posts.
Last week, the Minister of Health made additional changes to the Regulated Health Professions Act relevant to pharmacy professionals. Now, members of the Ontario College of Pharmacists — including pharmacists, interns, registered pharmacy students, or pharmacy technicians — can administer coronavirus vaccines by injection. These individuals must be certified to administer vaccines and must do so while being engaged by an organization that has an agreement with the Minister governing the administration of the vaccine (e.g., a hospital).