In a personal injury claim, medical malpractice claim or motor vehicle claim (what in legal terminology are called “tort” claims) damages are available for pain and suffering and loss of enjoyment of life, past and future loss of earnings, loss of earning capacity in the future, cost of medical care and household assistance in the past and future and out of pocket expenses. Family and friends who have provided assistance can be awarded reasonable compensation in what is known as an “in trust” claim. Developing a claim for damages may require experts in vocational rehabilitation, occupational therapy, and labour economics in addition to medical and employment evidence. The nature and extent of damages depends on the nature of the case.
In Canada, there are no caps on damages that are particularly targeted at medical malpractice claims, but the Supreme Court of Canada has created a cap on damages for pain and suffering and loss of enjoyment of life that is applicable to all serious personal injury claims. The maximum amount a court can award for pain and suffering is at present more than $350,000 and it increases with the cost of living. That maximum amount is only awarded to catastrophically injured victims, such as those who have become quadriplegic or who have suffered major brain damage. Given the huge expenses that go along with pursuing a medical malpractice claim, the court’s cap on damages for pain and suffering and loss of enjoyment of life presents a serious barrier to fair recovery for the innocent victims of medical malpractice. However, there is no cap on all other heads of damages, so substantial amounts can be awarded for cost of care, loss of earning capacity and other heads of damages.
A “structured settlement” may be advantageous. A structured settlement is one in which the defendant and the insurance company arrange for an annuity which can provide for lifelong periodic payments to the injured person. The advantage is that the injured person does not have the bother and risk of managing a large sum of money and instead receives tax-free payments. The payment schedule can be tailor-made and provide for larger payments when needs might increase (for instance, when it is expected that the cost of future care will increase with age or when school tuition might be needed).
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