In British Columbia, patients affected by medical mistakes can take doctors and/or medical institutions (like hospitals) that employ them to civil court to seek compensation for injuries. This compensation consists of monetary damages awarded to victims of medical negligence in cases when a court finds physicians and other medical professionals responsible for the mistakes that led to harm. This is called medical malpractice, and patient compensation can cover damages such as economic losses, non-economic losses, and, in some cases, punitive damages in instances where egregious recklessness or carelessness led to mistakes by a health provider.
What You Can Receive Compensation For
These examples of medical malpractice damages outline for what reasons a plaintiff (the injured patient) can seek damages. Each is tied to an aspect of a victim’s life impacted by the injuries they experienced, including the inability to earn a living or diminished quality of life.
- Permanent disability
- Emotional distress
- Permanent disfigurement
- Pain and suffering
- Loss of enjoyment of life
- Loss of relationships
Classifications of Damages
Pecuniary damages are damages recoverable in medical malpractice cases that include the economic losses the victim experienced. Any medical malpractice verdict in favour of the plaintiff will include pecuniary damages in the form of financial compensation. These are sometimes called “actual” damages, or compensatory damages, because these losses have a quantifiable financial value and can be assigned a number. The total amount of economic damages can vary depending on the individual and case. Sometimes, pecuniary damages can include future damages when prospective lost income is verifiable. Examples of pecuniary damages are:
- Loss of income
- Loss of earning capacity
- Future medical expenses not covered by insurance
- Non-medical costs associated with injuries
Non-pecuniary medical malpractice damages, sometimes called general damages, provide compensation for damages that don’t have a concrete financial value but nonetheless dramatically impact the victim’s life. While abstract, these losses can be significant to the functioning and overall quality of life experienced by the medical malpractice victim. Unfortunately, the Supreme Court of Canada has limited the total amount plaintiffs can receive with a legal cap on financial awards related to non-pecuniary damages. In 2023, that number is less than half a million dollars in most cases and about three-quarters of a million dollars in rare cases where wrongful death related to medical malpractice or catastrophic injury is at play. The losses medical malpractice victims can receive compensation for include:
- Pain and suffering: This may be granted if the individual experiences significant physical pain or emotional distress due to the incident.
- Loss of amenities: An inability to participate in hobbies, recreational activities, social events, or other daily activities that previously brought joy or fulfillment.
- Emotional distress: This may be granted if the individual suffers from symptoms such as depression, anxiety, or other emotional distress due to the incident.
- Loss of enjoyment of life: This may be granted if the individual experiences a lasting decline in their overall quality of life as a result of injuries.
- Loss of opportunity: This may be granted if the individual’s ability to work in the future is compromised due to their injuries.
- Loss of companionship: This may be granted if the individual’s relationships with family, friends, colleagues, or others suffer.
Punitive damages in medical malpractice, while rare, can be substantial. The term punitive refers to “punishment” and the courts will award these damages when seeking to set an example for other physicians or medical practitioners who would otherwise act with similar recklessness and negligence in the future. Punitive damages are designed to deter bad behaviour and incentivize physicians to avoid medical mistakes by keeping the best interest of the patient in mind at all times.
In some medical malpractice cases, third parties such as the patient’s insurance or disability provider are also owed damages. These are called subrogated damages and they occur when a third party covers the expenses the malpractice victim incurred prior to a legal judgment, at which time they are entitled to recover payments made prior to the courts confirming the validity of the malpractice claim by ruling in the plaintiff’s favor. Subrogated claims are typically added to the overall award a patient receives as a result of a successful medical malpractice claim but are always separate from compensatory or punitive damages awarded to the patient. In most cases, the offending physician’s medical malpractice insurance provider will pay the aggrieved third party after the medical malpractice trial is complete.
Every medical malpractice case is unique and there is no single static formula used to calculate damages resulting from medical malpractice injury. However, the accepted practice is to account for all economic damages incurred, plus all non-economic (non-pecuniary damages) when applicable.
Calculating pecuniary damages: Pecuniary damages are awarded to compensate medical malpractice victims for the costs incurred by their injuries. These can include out-of-pocket medical expenses not covered by public or private insurance or lost income as the result of an inability to work due to injury. Your lawyer will collect records such as medical bills, rehabilitation bills, and other non-medical costs in addition to previous paychecks to make a full accounting of your total losses. This is usually relatively straightforward. The losses incurred by those with irregular incomes such as contract workers or small business owners may be a little more difficult to calculate, but your lawyer can use your tax returns or access publicly available data related to your job and industry to make an educated estimate of your lost income.
Calculating non-pecuniary damages: Non-pecuniary damages can be ambiguous and therefore more difficult to count. How much is someone’s quality of life worth? For someone who has had their ability to enjoy life ripped away from them by a negligent doctor, the answer is quite a lot. Over time, standards for calculating these non-economic damages have evolved to give your medical malpractice lawyer a good idea of what you’re owed. Unfortunately, the cap on non-pecuniary damages in Canada is approximately $400,000, meaning that even if injuries are severe and a person is permanently disabled, with standard projections for non-pecuniary damages in a given case far exceeding this cap, this is the maximum amount you can receive.
Making Your Medical Malpractice Claim
While only a small percentage of medical malpractice cases are found in favour of the patient, a sizable portion of claims results in a medical malpractice settlement instead of a court judgment. However, it is estimated that a large number of valid incidents of medical malpractice are never brought to trial because the patient never files a claim. Learn more about submitting a medical malpractice claim or contact the compassionate professionals at Stephens & Holman today, and don’t forgo the damages you are owed. If you are a surviving family member who believes a deceased loved one is a victim of medical malpractice, you may recover damages via a wrongful death claim.