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.
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).
The past several weeks have been a challenging time for everyone. Health professionals have been bombarded with Emergency Orders and other pronouncements that can be confusing and at times seem contradictory.
With the rules and restrictions changing so rapidly, it is advisable to keep an eye on the website, social media feeds, and other communications from your respective regulatory College for your College’s interpretation and position on what you should and should not be doing during the pandemic. While the Emergency Orders and pronouncements apply to a broad spectrum of health professionals, individual Colleges can provide guidance and interpretation about how those orders and pronouncements relate to your specific profession.
But what if you’re still unsure about whether you can provide a particular service to a specific patient/client; or some other aspect of your professional obligations at this uncertain time?
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.