Medical malpractice is an all-too-common and unfortunate reality in Canada. The Canadian Patient Safety Institute notes that medical errors lead to 28,000 Canadian deaths annually[1] and, a 2004 study noted that 185,000 Canadian patients in acute care settings experienced adverse events.[2]
While many Canadians may be negatively affected by medical malpractice, it is notoriously challenging for counsel to launch a successful medical malpractice suit. In 2014, plaintiffs were successful in 30% of medical malpractice cases and, of 1,092 legal actions, over half were discontinued, abandoned or dismissed.[3]
Medical malpractice suits are challenging for several reasons. The plaintiff must prove a doctor-patient relationship existed, the doctor’s treatment fell below the standard of care, and that the injuries resulted from the doctor’s inactions. With many lawyers not having a medical background, this can be difficult to prove. Additionally, physicians have the resources to retain very competent counsel. The subsidized Canadian Medical Protective Association defends most health care practitioners accused of medical malpractice and spent $168 million on legal costs in 2017.[4]
Considering these realities, counsel needs to be strategic when launching medical malpractice suits. Including expert witnesses is a necessary part of this strategy. Expert witnesses are required to comment on the standard of care and why it was breached in any particular case (often from an expert in the same field), causation (why the breach(es) caused the plaintiff’s injuries) and the quantification of the plaintiff’s damages, including the use of forensic accountants. Without these experts, the plaintiff’s medical malpractice will fail.
Calculating Loss of Income, Both Past and Future, and Loss of Earning Capacity
Injuries caused by medical malpractice can impair someone’s ability to work or work a high-paying job. Counsel must ensure that their client obtains the compensation they deserve. Effective forensic accountants are a crucial part of this effort.
In Robbins v. Bajwa, for example, the Court awarded the plaintiff $63,000 for loss of past income, calculated by an actuary retained by the defendant (as opposed to the $110,000 advanced by the plaintiff’s counsel).[5] The presiding judge noted that the plaintiff’s expert witness relied too heavily on assumptions but the actuary report prepared by the defendant’s expert witness was “balanced.”[6]
Loss of Valuable Services
Medical malpractice injuries may also impair a plaintiff’s ability to provide valuable services, including housekeeping and home maintenance. Such damages can only be awarded if “direct economic loss can be proved” and assessment of these damages is within the trial judge’s domain.[7] An occupational therapist, or other expert, will assist in identifying the services needed, but high-quality evidence from a forensic accountant is needed to quantify the value of those services, and can push towards a higher assessment.
Dependency Claims
Under the Family Law Act,certain relatives of individuals impacted by medical malpractice can launch dependency claims for lost income, household keeping services and potentially broader grounds in the future.[8] Counsel can retain forensic accountants to calculate such claims and forensic accountants can provide reasonable amounts.
[1] Lynn Desjardins, “Thousands die from medical errors yearly, notes advocacy group”, Radio Canada International (28 October 2019), online: https://www.rcinet.ca/en/2019/10/28/thousands-die-from-medical-errors-yearly-notes-advocacy-group/.
[2] Lee et al, “Canada’s System of Liability Coverage in the Event of Medical Harm: Is it Time for No-Fault Reform” (2021), 17:1 Healthc Policy 30 at 32.
[3] Elaine Gibson, “Is it Time to Adopt a No-Fault Scheme to Compensate Injured Patients” (2016) 47:2 Ottawa Law Review 303 at 310.
[4] Lee et al, “Canada’s System of Liability Coverage in the Event of Medical Harm: Is it Time for No-Fault Reform” (2021), 17:1 Healthc Policy 30 at 32.
[5] 2020 NSSC 311 at paras 308-312.
[6] 2020 NSSC 311 at paras 308-312.
[7] Awalt v. Blanchard, 2013 NSCA 11 at paras 47-53.
[8] Stickel v. Lezzaik, 2008 CanLII 10057 (ON SC).
