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What is my misery worth? Compensation for Pain and Suffering in Canada

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More than 90% of the callers to our office are motivated by the fact that they have had to endure a great deal of pain and suffering as a result of what they believe was medical negligence. Within minutes of our conversation however, virtually all of those callers are disappointed to learn that in Canada, even with catastrophic injuries, the maximum amount that our courts will award for their misery is considerably less than they expect. So why are the awards for pain and suffering so low?

These sorts of awards are referred to as nonpecuniary damages[1] and it is no accident that they are low in Canada; it is in fact the result of deliberate decisions made by the Supreme Court of Canada. In a trilogy of cases in 1978[2], the Court addressed the issue of compensation for pain, disability and loss of quality and enjoyment of life, grappling with the reality that no amount of money can return a plaintiff to their previous state of good health and that it is difficult to come up with an objective method to measure the impact of a person’s loss. The problem that faced the Court was that the basic legal premise for awarding compensation for the damages was to restore the harmed person to the position they would have been in prior to the negligence of the defendant. The difficulty in awarding damages for nonpecuniary losses is that those losses are both difficult to measure and, often, impossible to adequately compensate. The Court held that extremely high awards for general damages would place an undue burden on society in terms of increasing insurance premiums and the social costs that can go along with that. As a result, the Supreme Court set a maximum of $100,000 for nonpecuniary damages. That number was tied to inflation so the maximum is now about $365,000, which is only available for catastrophic injuries, for example if a healthy and active person becomes paraplegic or quadriplegic, or suffers severe brain damage due to negligence. As a result, while it is not unusual for Pacific Medical Law to achieve settlements for our clients of several million dollars, these awards are primarily to compensate them for their lifelong cost of care, as well as loss of income arising from this injuries.

The Court came to their conclusion as a matter of public policy and noted that the primary concern when awarding compensation is to assure that the injured party has adequate care in the future. Given that such costs as the cost for care or income loss were not capped, the Court was concerned about the social burden of large non-pecuniary awards, recognizing that no amount of money can give back what was lost:

“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. …

… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”

So then, why are our expectations so far out of line? There really is no mystery here; almost all Canadians are exposed to a flood of American news stories many of which include reference to multi-million dollar awards for what seem to be the most innocuous degrees of pain and suffering. For instance, while our maximum for nonpecuniary damages is $365,000 today, in 2011, New York’s appellate courts awarded amounts of at least 10 times that amount (US$3,500,000) for pain and suffering in 10 cases[3]. But, even more interesting is the fact that a number of American states are enacting legislation to change all of that by putting limits on awards for pain and suffering. For example, New Hampshire has a limit of US$875,000 while the limit is US$350,000 in Maryland. In fact, Ohio, Idaho and California have capped pain and suffering damages at US$250,000[4]. All of which begs the question; was the Supreme Court of Canada actually ahead of its time?

[1] Non-pecuniary damages are damages, commonly called “pain and suffering” and also referred to “loss of enjoyment of life” or “general damages”, are an assessment of how much money is suitable to compensate for losses that cannot be more accurately calculated such as income or medical expenses.

[2] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, the claimant was a 21 year-old young man who was rendered quadriplegic as a result of a traffic accident.

Arnold v. Teno, [1978] 2 S.C.R. 287, the plaintiff was a 4½ year-old girl who suffered severe brain injuries when she was hit by a car while she was enjoying an ice cream cone, new-bought from a curb-side vendor truck.

Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, the plaintiff was 18 year-old lad who was rendered a quadriplegic from an accident during a physical education class.

[3] New York Injury Cases Blog, <http://www.newyorkinjurycasesblog.com/2012/01/articles/amputation-injuries/review-of-the-10-largest-pain-and-suffering-awards-approved-by-new-yorks-appellate-courts-in-2011>

[4] http://www.nolo.com/legal-encyclopedia/state-state-medical-malpractice-damages-caps.html

Four Reasons Why Awards are Less in Canada than the USA

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A Canadian courtroom never looks like the American television courtroom. Heated courtroom battles where lawyers dressed in business suits yell at each other using theatrical outbursts to persuade the jury and breathless investigators run into the courtroom at the 11th hour with a newly discovered piece of evidence, culminating in the court ordering a multi-million dollar medical malpractice award for the plaintiff – that doesn’t happen in Canada. Of course some of this excitement is purely tv-land drama, but some of it can be explained by the differences in our legal systems.

While there are many differences between the Canadian and American legal systems, a few of these differences contribute directly to the lower compensation a plaintiff can expect to receive for medical malpractice cases in Canada. This is true even if the negligence is caused by doctors’ mistakes or nurses’ mistakes. Here are some of those differences:

  1. Lower awards for pain and suffering in Canada – In 1978 the Supreme Court of Canada put an inflation-adjusted cap on how much a plaintiff can be compensated for the pain and suffering caused by a negligent defendant. In 2015, the most compensation that can be awarded for pain and suffering in Canada, no matter how catastrophic the injury, is about $350,000. Compare that to New York State alone where in 2011, 10 cases were awarded more than $3,500,000 for pain and suffering. Many US states are starting to put limits on claims for pain and suffering, and some of those limits are even lower than the Canadian cap. Nonetheless, there continues to be large awards available in a number of US jurisdictions.
  2. Socialized medicine lowers plaintiffs’ future costs – Plaintiffs can be awarded compensation for health care costs they will have to pay for themselves in the future. In Canada, defendants do not pay the plaintiff for provincially-funded health care, such as hospital in-patient care or physician appointments. In the United States, since an injured plaintiff may have to pay for future hospitalizations out of their own pocket, defendants can be required to compensate for those costs as well – this can amount to tens of millions of dollars.
  3. Jury awards are smaller in Canada – When judges decide how much a successful plaintiff should be awarded they must explain their decision in detailed written reasons. They are bound by the evidence presented and by decisions made in previous cases. Juries, on the other hand, do not write reasons to explain their findings. A sympathetic jury can award extremely high awards. Canadian juries tend to be much more conservative than their US counterparts, in part because the money to pay the awards often comes from tax funded programs such as ICBC, or hospitals. Large awards are viewed by some Canadian juries as coming out of their pockets as taxpayers. In addition, Canadian jury awards can be appealed if they are inordinately high and fall well outside the range of damages a judge would award.
  4. Punitive damages are less common in Canada – Our tort law system is aimed at compensating victims of negligence, not punishing the defendants. The compensation is intended to put the plaintiff back in the condition they would have been in if the negligence had not occurred – to the extent that is possible. In Canada, punitive damages are much less common than they are in the USA – in fact in medical malpractice lawsuits punitive damages are exceedingly rare.

People who have been injured by the negligence of a doctor, nurse or other health care professional can expect to be fairly compensated in Canada, and although the compensation awarded here is more modest than in the US, it can still provide some measure of comfort and assistance as people try to move forward with their lives after an injury caused by medical malpractice.

Supreme Court of Canada Win for Twelve-year old with Cerebral Palsy

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On Friday, May 24, 2013, the Supreme Court of Canada delivered a judgment that is of interest to judges and lawyers across the country, and has special significance for one BC family.

As a result of this decision, a child who suffered a significant brain injury as a result of medical negligence will obtain over $4 million in compensation to pay for the extensive therapy and support that he requires.

The Injury

Monica Cojocaru gave birth to her first child by ceasarean section. In the spring of 2001, when she was approaching the delivery of her second child, her physician recommended to her that she deliver the baby vaginally. A vaginal birth after a caesarean section is known as a VBAC delivery. Mrs. Cojocaru was not warned about the implications of this procedure with regard to the health of her baby should a uterine rupture occur.

During this delivery, her uterus did indeed rupture and the baby was extruded into the mother’s abdomen, depriving him of oxygen for over 20 minutes. As a result, Eric Cojocaru suffered a brain injury known as hypoxic ischemic encephalopathy. He was left with cerebral palsy, a severe and permanent condition that affects every aspect of his life. Described as a sweet-natured and likeable boy, Eric is not able to carry out the most basic daily activities and has memory problems and communication difficulties due to his brain injury.

The First Win at the BC Supreme Court

Eric and his mother sued the hospital, nurses and doctors for negligence causing his brain injury. The judgment from the BC Supreme Court was released in April 2009. The trial judge found the hospital, a nurse and three doctors liable in negligence and awarded Eric and his mother $4 million in damages.

Defence Appeals the Win

A substantial portion of the plaintiff’s submissions were copied into the judge’s decision, and the defence appealed the decision. The defence’s appeal centred primarily on the allegation that the reproduction of large portions of the plaintiff’s submissions showed that the trial judge had not given full and fair consideration to their position. The defence asked that the judgment be set aside and a new trial ordered.

In a judgment released in April 2011, the BC Court of Appeal did just that, stating that the judge’s reasons were “substantially a recitation of the [plaintiff’s] submissions” which, to their mind, was sufficient to displace the presumption of judicial integrity and impartiality.

This was a terrible loss for Eric and his mother, but they were not prepared to give up.

The Supreme Court of Canada

On November 13, 2013, Paul McGivern  argued Eric’s case in front of the Supreme Court of Canada. In his opening remarks Paul told the court that

“This case deals with a brain damaged child and his mother who are trying to deal with the ramifications of an issue which in many respects sits outside the legal disputes between the parties. …

The manner in which the judiciary expresses itself is something that my client has no control over. …

At the end of the day I need a judgment so this child can get the care that he needs.”

And that’s exactly what the Court did.

Victory for Eric

In a unanimous decision, the Court addressed the two major issues in the case.

They first addressed and clarified the law on judicial “copying.” This is a procedural matter of keen interest to judges and lawyers, but of interest to Eric and his mother only because it had the potential to send the case back for a new trial. The Supreme Court of Canada acknowledged that it would have been better if the trial judge had not copied extensively from the plaintiff’s submissions, but determined that was not reason enough to set aside the decision of the trial judge and require a new trial.

The Court then turned to the issue of liability and found one doctor negligent on the issue of informed consent. The Court found that the doctor did not provide Eric’s mother with the information she needed to make an informed decision about having a VBAC. The information which was provided fell short on two fronts. First, the doctor over-estimated the likelihood of a successful VBAC given Ms. Cojocaru’s particular situation. More importantly, the Court agreed with the trial judge’s finding that while the doctor discussed the statistical risks of a VBAC including the risk of uterine rupture, she didn’t explain what those statistics meant in terms of the risk to her life and the life of her baby if a uterine rupture were to occur.

The Supreme Court of Canada ordered that the doctor compensate Eric for his injuries. The original award of $4 million was reinstated. Over half of the award is for the costs of the care that Eric will need for the rest of his life to maximize his health and quality of life despite his permanent injuries. After years of struggling to manage the special challenges of a life with cerebral palsy, Eric and his mother will now be able to obtain the equipment, housing and care that Eric so desperately needs.

Read the Supreme Court of Canada judgment here

Read the BC Court of Appeal judgment here

Read the BC Supreme Court judgment here

Paul McGivern Interviewed by Lawyers Weekly

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Paul McGivern  was interviewed by Lawyers Weekly on the significance of the recent decision of the Supreme Court of Canada in the case that he argued. The decision was important in two respects: it clarified the threshold for rebutting the presumption of judicial integrity and impartiality and raised the bar for physicians in terms of explaining the risks of the proposed procedure when obtaining informed consent from patients.

The Supreme Court of Canada essentially confirmed, in Paul’s words, “that trial judges are entitled to rely on the lawyers that appear before them, and are entitled to rely on the written submissions that counsel make. They’re entitled to copy from those submissions, and put them into their judgments. But the more complex the case, the more the judge is encouraged to put the reasons into their own words”.

On the issue of informed consent, the decision, according to Paul, “emphasizes the need for physicians to explain to their patients exactly what they’re going to be doing, what the risks are, and most importantly what the potential consequences are if the risk that the procedure entails actually materializes. In other words it isn’t enough to say ‘there might be a uterine rupture.’ You actually have to explain to the patient what that means, in real terms, for the patient. And in this case, what it meant, was it would be unlikely at best that they could rescue the child before brain damage set in.”

Win for an injured infant at the Supreme Court of Canada

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Paul McGivern and Susanne Raab were among the team winning the hard-fought battle at the Supreme Court of Canada for an infant with cerebral palsy injured as a result of a failed attempt at a forceps delivery – April 4, 2013 (Full decision available here)

Paul McGivern  and Susanne Raab were among the four lawyers representing the plaintiff Cassidy Ediger in a birth trauma lawsuit. Cassidy was born on January 24, 1998. The circumstances of her birth were tragic: she was born “flat” (asphyxiated) and had to be resuscitated. She suffered a severe and permanent brain injury during her birth resulting in grave disabilities: spastic quadriplegia and cerebral palsy. As a result of her injuries, she is unable to speak, is tube-fed and uses a wheelchair. Her life expectancy has also been reduced to 38 years of age.

The Trial Decision

After years of investigation and preparation, the case went to trial in spring of 2008. The trial judge’s decision came out in 2009 finding the obstetrician negligent for using the forceps to assist the delivery without explaining the risks of the procedure to Cassidy’s mother when obtaining her consent to the procedure, and failing to ensure that immediate surgical backup was available to deliver Cassidy by cesarean section in the event that the attempt at forceps delivery fails. The placement of the forceps displaced Cassidy’s head allowing the umbilical cord to become compressed during the contractions and leading to bradycardia, a decrease in a baby’s heart rate, which deprived her brain of necessary oxygen. The trial judge awarded $3,224,000 in damages to Cassidy.

The BC Court of Appeal

The defence appealed the decision of the trial judge to the BC Court of Appeal, and the appeal was heard in the fall of 2010. The judgment of the Court of Appeal came out in spring of 2011 overturning the trial judge’s award of damages to Cassidy and dismissing her claim, essentially saying that the trial judge erred in her finding that the forceps procedure caused the bradycardia which led to Cassidy’s injuries.

The decision of the Supreme Court of Canada

Our lawyers did not abandon Cassidy’s claim, but appealed it to the Supreme Court of Canada, which is the final court of appeal in our country and only hears cases of national importance. Before the case is heard by our highest court, the appealing party needs to demonstrate that the case involves an issue of public importance or raises an important issue of law. Out of approximately 600 applications for leave to appeal filed each year, the Supreme Court only hears about 80 cases.

The Supreme Court of Canada granted leave to hear Cassidy’s case and heard the issues in the fall of 2012. In April of 2013, the Supreme Court restored the trial judge’s decision finding the obstetrician liable for Cassidy’s injuries. Cross-appeals about the amount of damages were referred back to the B.C. Court of Appeal for consideration.

Standard of Care

The Supreme Court of Canada upheld the trial judge’s finding that Dr. Johnston did not meet the standard of care. The Court stated at para. 53,

[53]…Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia persists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s causation finding is sound.

The Supreme Court of Canada also found that the standard of care must be “responsive” to the risks involved.

Causation

The Supreme Court of Canada reaffirmed the legal test for causation enunciated in Snell v. Farrell, [1990] 2 S.C.R 311 at para. 36,

[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases – as in any other case – assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).

The Supreme Court of Canada concluded that in the face conflicting expert testimony, it was open to the trial judge to accept the plaintiff’s theory of causation over that of the defence having regard to all of the evidence:

[39] Faced with this conflicting expert testimony on the feasibility of the “displacement” theory and evidence of other potential causes, it was incumbent upon Holmes J. to weigh the evidence before her and determine whether Cassidy had proven causation on a balance of the probabilities. Holmes J. ultimately concluded that Cassidy did satisfy this burden for three reasons. First, as already described, Drs. Shone’s and Farquharson’s testimony regarding the physical effects and distortions of labour contractions, as well as the timing of the steps leading up to a cord compression, were consistent with what occurred here. Second, multiple experts testified that mid-level forceps procedures are potentially dangerous and carry the risk of acute cord compression. Third, the close proximity in time of the forceps attempt and the bradycardia supported the conclusion that the forceps attempt was connected to the cord compression. As a result, Holmes J. concluded that, although she could not be certain of the precise mechanics leading to cord compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia” (para. 135).

[40] There was no palpable and overriding error in this conclusion. It was open to Holmes J. to accept Drs. Shone’s and Farquharson’s testimony regarding the displacement theory over Dr. Johnston’s testimony. It was also open to her to conclude that the close proximity in time between the forceps attempt and the bradycardia, combined with the well-recognized risk of bradycardia associated with mid-level forceps deliveries, supported a finding of causation in this case.

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