Medical Malpractice Compensation Limited to Harm Caused by Doctors Negligence: Ontario Court of Appeal
Many Calls but Few Claims
I get hundreds of calls each year from people who think they have been the victim of medical malpractice.
Often the patient has very serious residual injuries or long term disability.
Sometimes a family member has passed away and the family is wondering if their loved one was a victim of medical malpractice.
But relatively few claims actually proceed to file a lawsuit or go to court. One of the reasons for that was examined in detail in a recent decision by the Ontario Court of Appeal.
No Causation = No Compensation
One of the most difficult concepts to explain to victims of medical malpractice is that their claim for compensation is limited only to the injuries caused by the defendant’s negligent conduct.
Causation is often the most difficult hurtle that a victim of medical malpractice has to overcome in order to receive compensation.
The Ontario Court of Appeal has confirmed this fundamental principle of medical malpractice claims
In Rollin v. Baker the plaintiff broke he wrist. The doctor that treated her in the emergency room was found to be negligent. However, the Ontario Court of Appeal reduced the amount of compensation that she was entitled to receive. The Court of Appeal found that the plaintiff’s damages were limited to the harm caused by the poor medical treatment and did not include all of the damages caused by the broken wrist.
The Court of Appeal summed up the evidence on causation as follows:
“In assessing non-pecuniary damages at $90,000, Dr. Baker submits that the trial judge improperly awarded Ms. Rollin damages for all of the pain and suffering associated with her broken wrist rather than for that resulting from the delayed detection of the displacement during the healing process.
The trial judge’s reasons contain only the following sentence with respect to non-pecuniary damages. “After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages would be $90,000.”
While that single sentence does not explain the basis of the amount, the trial judge’s unqualified review of how Ms. Rollin’s injured wrist has affected her life, plus her identification, in para. 14 of her reasons, of one of the issues before her as “the damages that Carole Rollin sustained as a result of the Colles’ fracture of her left wrist”, strongly suggest that the trial judge did assess damages as though Dr. Baker was responsible for all of the injuries his patient suffered as a result of the fall.
Furthermore, as I will discuss below, $90,000 is several times the usual quantum awarded for non-pecuniary damages in the case of a defendant fixed with full responsibility for a broken wrist, however severe the after-affects. Given the lack of reasons for assessing the damages at this amount and the strong suggestion of an error, this aspect of the judgment is not entitled to deference.”
If you want more information about the law of causation as it relates to medical malpractice claims, you can take a look at my book, The Consumers Guide to Medical Malpractice Claims in Canada.
The book is for sale on Amazon.
But, if you live in Atlantic Canada, I will send you a copy of the book free if you contact me through this blog.
