Medical Malpractice Compensation Caps: The Difference Between the United States and Canada

by John McKiggan

Caps on Medical Malpractice Compensation

Several jurisdictions in the United States have a cap on the amount of compensation that victims are entitled to receive in their medical malpractice claims. The amount of the cap, and what is capped, varies state by state.

No Malpractice Caps in Canada (sort of)

In Canada, while there are no caps specifically targeted at medical malpractice claims, the Supreme Court of Canada has created a cap that applies to all serious personal injury claims.

Since most people who contact me for medical malpractice claims have suffered catastrophic injuries, the Supreme Court of Canada’s ruling effectively caps the amount of compensation they are entitled to receive.

Supreme Court Caps Claims

In 1978 in a landmark case known as Teno v. Arnold the Supreme Court of Canada ruled that no matter how seriously injured you are the maximum amount for compensation you can receive for non-pecuniary damages (what is commonly referred to as “pain and suffering”) is $100,000.00.

Cap Supposed to Lower Insurance Rates

The reasoning behind the cap was primarily to prevent insurance rates from skyrocketing and becoming unaffordable for consumers. Unfortunately there was little evidence before the court that insurance rates would be effected by a compensation cap.

Taking inflation into account the amount capped on pain and suffering is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims, persons who suffered quadriplegia, severe brain damage and similar injuries.

Victims Often Don’t Get Full Award

Even plaintiffs that receive awards that seem large often never see the amount decided by the judge or jury. Many personal injury compensation awards are dramatically reduced on appeal. These reduced or reversed judgments are almost never reported by the media.

But doctors in Canada are not insured by for profit insurance companies like in the United States. In Canada malpractice coverage is provided by a non-profit defence fund called the Canadian Medical Protective Association. Consumers don’t pay for this insurance, so rising rates are not an issue.

Given the enormous costs of pursuing a medical malpractice claim, the Supreme Court of Canada’s cap on compensation presents a real barrier to fair recovery for innocent victims of medical malpractice.

Is It fair?

What do you think? Is it fair that compensation for malpractice victims is capped? When a patient is injured as a result of a doctor’s negligence is it fair that the victim’s compensation is capped so that the doctor may have lower insurance premiums?

For more information about medical malpractice claims in Canada, you can contact me 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 Get a Penny in Compensation.

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