To answer the question "how much can you sue for medical malpractice," you’ll have to consider a number of factors. While it’s best to always consult your lawyer for this, we’ll provide some initial information to help you assess if your case is worth the shot, or not.
How much can you sue for medical malpractice?
The damages that you can ask the court when suing for medical malpractice or negligence will depend on:
- your injuries and their impact on your daily life
- the gravity of the defendant’s acts or negligence
- actual and future expenses for your recovery and sustenance
- your own negligence (called contributory negligence in law)
As such, each case will have its own amount of damages, although different cases may have similar facts or injuries. You can get the definite amount for your case after consulting with your lawyer, who’ll do the assessment based on your specific case. Consulting a lawyer is not just for the computation of damages, but also to determine if the elements of suing for medical malpractice or negligence are present in your case.
Amount of settlement claims
There are personal injury cases, including medical malpractice claims, that do not make it to court because a settlement has been reached between the parties. A settlement is legally binding, which can be enforced through the help of the courts when one of the parties fails to fulfill what has been agreed upon.
Computing the settlement amount may be similar to computing the damages that you’re going to ask the court for when filing a medical malpractice case. This video below explains how settlement amounts are computed, in relation to the process of reaching a settlement agreement:
To know more about how much you can sue for medical malpractice or about settlement amounts, consult the best medical negligence lawyers in Canada as ranked by Lexpert.
What are the most expensive awards of damages in Canadian history?
Common law has provided us with a lot of cases that have awarded the most expensive damages in Canadian history. Aside from knowing what tops the list, learning about these cases can give a glimpse of how courts award damages in medical negligence or malpractice cases.
Here are just some of most expensive awards of damages in Canada:
- Boyd et al. v. Edington et al., 2014 ONSC 1130: $15 million
- Armstrong v. Ward, 2021 SCC 1: $1.3 million
- Reibl v. Hughes, [1980] 2 SCR 880: $225,000
If you want to know more about these cases, check out our article on the biggest medical negligence cases in Canada. It also discusses other important case laws on how much you can sue for medical malpractice.
What are the types of damages when suing for medical malpractice?
Just like in other tort cases, there are two general types of damages that you can claim when you sue for medical malpractice or negligence:
- compensatory
- non-compensatory
Under these two types, there are more classifications of damages that the court can award in your favour. We’ll discuss these more below.
Compensatory damages
Compensatory damages are awarded to you for the mental and physical injuries caused by the defendant’s acts or omissions (here, that would be their malpractice or negligence). Its goal is restitution, which is legally restoring you to your previous condition before the injury happened. This is why the compensatory damages consist of actual damages you’ve suffered (special damages) or compensate you for your pain and suffering (general damages).
Special damages
Special damages are your actual expenses to recover from the injuries caused by the defendant. Simply put, it’s the financial or monetary aspects of your loss. In torts cases, this can refer to your personal medical expenses and payment for damage to property. It’s also not restricted to “actual” expenses, since it can also cover future expenses, if it’s substantiated.
When suing for medical malpractice or negligence, special damages can refer to:
- hospital bills
- prescribed medicines
- cost of future therapies
- lost and future income
- expenses for caretakers
- other future daily expenses
Think of special damages as those which can be reduced to receipts and financial statements, whether present or future ones.
General damages
On the other hand, general damages are the non-financial or non-monetary aspects of your loss because of the injury you’ve suffered, such as:
- personal pain and suffering
- grief for the loss of a loved one
- emotional distress for the loss of capacity
Currently, general damages are capped by case law, although it increases every year due to inflation; in 2024, it’s around $400,000. While the amount of special damages is based on evidence, general damages are awarded based on case law precedents. This is where your lawyer can also help you with – finding the appropriate court decision that is somehow like your case as a basis for these damages.
Non-compensatory damages
As against compensatory damages, non-compensatory damages are awarded not simply because you ask for it, but because it more so depends on the court’s discretion. It’s only awarded by the court in specific cases, in relation to the specific acts or omissions of the defendant or to your suffering.
Aggravated damages
Aggravated damages are awarded after proving that indeed you’ve suffered emotional distress (e.g., anguish, anxiety, humiliation, wounded pride). The basis of this type of damages is the ill feelings you’ve suffered because of the defendant’s acts or negligence.
Nominal damages
When you fail to prove that you’ve been gravely injured by the plaintiff, but the court agrees that your legal rights have been violated, nominal damages can be awarded to you. However, as its name suggests, it’s just a minimal amount as compared to general or special damages.
Punitive damages
To punish the defendant’s exceptional wrongdoing or reprehensible behaviour, the court can order them to pay you punitive damages. This is also to ensure that future similar acts are prevented, either by the same or different person.
Read next: The evolution of medical malpractice
Do you have more questions about how much can you sue for medical malpractice in Canada? You can reach out the best Canadian law firms for medical negligence cases.