May 1, 2025
In recent years, Canada has witnessed a steady rise in the size of awards granted in medical malpractice cases. It is no longer uncommon to see awards upwards of $10 million.
In November 2024, the Superior Court of Quebec in Beaudoin c Jarcevic, 2024 QCCS 4669 (CanLii) rendered a historic judgment, awarding over $22 million to the family of a young child who suffered catastrophic injuries due to a delayed delivery. Of this amount, almost $8.5 million was future cost of care for the child, and approximately $1 million was loss of future income of the child. The other significant head of damage was $9.75 million for future loss of income of the mother, a former lawyer that the Court found was unable to continue working due to a severe and permanent disability linked to the defendant’s negligence.
While Beaudoin is a landmark case, it does not stand in isolation. The case of KY v Bahler, 2023 ABKB 280 involved the management of the birth of twins. In finding the physician negligent, the Alberta Court of King’s Bench awarded in the range of $19 million to one twin and $15 million to the other twin. As expected, the bulk of damages awarded to the twins were for the costs of their future care.
This trend of higher damages awards is substantiated by the Canadian Medical Protective Association‘s (CMPA) 2023 report, the latest in its annual series. In the report, the CMPA disclosed that close to $308 million was paid in compensation to patients — a reported $67 million more than its 10-year average (2014-2023).
Why are we seeing such an increase in the awards in medical malpractice cases?
- The state of our current economy. We have all seen it on the grocery shelves, and those same economic factors are driving up the damages awards in medical malpractice cases. An easy example is with respect to the hourly wage for healthcare aides or personal care workers. Their hourly wages are increasing, which in turn results in a higher figure for the future cost of care. There is also a similar inflationary factor with respect to the cost of medications or assistive devices required by the plaintiff.
- There is increased sophistication of plaintiff’s counsel, with more collaboration between counsel across the country. They are leaving no stone unturned with respect to heads of damage, expanding the scope to include guardianship/trusteeship fees and various therapies in cost of care previously not routinely sought. Consideration should be given as to whether the therapies sought will actually result in an increased or better standard of living for the plaintiff. An example is with respect to psychological counseling. Is this necessary for a plaintiff that has been assessed by medical professional to have little to no ability to improve or communicate?
- Advancements in medical technology and knowledge are resulting in plaintiffs living longer. An increased life expectancy results in a larger figure for future cost of care. These medical advancements are also making it possible for care to be provided in a home setting, building a “home hospital.” This results in driving up the quantum of damages.
- There is an increase in the request for structures by plaintiff’s counsel. The cost of these structures is highly sensitive to assumptions about the plaintiff’s life expectancy. It is important to note that structured settlement companies are risk-averse and for-profit. They do their own assessment of life expectancy and often will not apply a realistic life expectancy based on expert evidence. Currently, structures are not as expensive because of economic factors and changes in the interest rate environment. Previously, it was not unusual to get a structure quote that was substantially more than the present value assessment of damages.
Ultimately there are many factors resulting in the trend of higher damages awards in medical malpractice cases. As the frequency of these high-value claims increases, so do the costs of medical liability insurance for healthcare professionals and organizations.
Author
Melissa Rico
Partner and Co-Chair of our Health Law Group
T: 403.705.3308
E: [email protected]
We are one of the largest Health Law Groups in Alberta and Western Canada. If you have questions about damage awards in medical malpractice cases, please contact the Health Law Lawyers at Carbert Waite LLP.