Medical Malpractice Claims: What can I get compensated for?

by John McKiggan

The goal of the court in any claim for compensation for personal injuries is to try and put the injured person (or their surviving family members) in the same position they would have been had the negligence (malpractice) not occurred.

Money cannot replace the loss of a loved one or truly compensate for the loss of a limb or a catastrophic injury. But the courts try to provide a fair and reasonable measure of financial compensation to innocent victims who have been injured as a result of the negligence of others.

These basic principles apply to all compensation claims, including medical malpractice claims.

Non-Pecuniary Damages: Pain and Suffering

A non-pecuniary claim is one that does not result in a direct out of pocket financial loss but is still considered to be worthy of compensation. Non-pecuniary damages are sometimes referred to as compensation for “pain and suffering” but they cover any non-financial loss.

A better way to describe non-pecuniary damages is that it is compensation for pain and suffering and loss of amenities of life. In other words, the court tries to compensate the injured person for their pain and the loss of all of the enjoyable activities that they were able to perform before they were injured.

How Do The Courts Calculate Pain and Suffering?

There is no such thing as a “pain-o-meter”. A medical malpractice victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge (or jury) does in determining your compensation for pain and suffering in a medical malpractice claim is use their experience and discretion to consider how your injuries have limited your ability to function, your normal day to day activities, your hobbies or your ability to work?

Cap on Compensation Claims

The Supreme Court of Canada has placed a cap on the amount of compensation that medical malpractice victims can receive for non-pecuniary damages. The cap was set in 1978 at $100,000.00, taking inflation into account, it is now generally accepted to be around $300,000.00.

But that amount is only paid to the most severely injured victims. If you are considering a medical malpractice claim for non-pecuniary damages, it is important to have an experienced lawyer assisting you to ensure that you provide the court (or the jury) with all of the relevant information that they will need to consider when assessing your claim for “non-pecuniary damages”.

If you or a loved one have suffered injuries that you think may be due to medical malpractice you can contact me through this blog or by calling toll free 1-877-423-2050 for a free copy of my book: The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation.

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