Losing a loved one is extremely difficult, no matter what the circumstances are. When a death was the result of someone else’s negligent behaviour, the devastation can be insurmountable.
If a doctor or healthcare professional’s negligent action caused the death of your loved one, you may be entitled to financial compensation for that loss.
In today’s post, NOVA Injury Law will be helping Atlantic Canadians understand when and how they can receive financial compensation for a loved one’s fatal injury caused by medical malpractice.
What is Medical Malpractice?
Medical malpractice occurs when a healthcare provider fails to provide reasonable care under the circumstances. The term “provider” includes doctors, nurses, surgeons, members of a surgical team, pharmacists, or any other individual rendering healthcare services, as well as to hospitals and other medical facilities.
Medical malpractice can result from many different errors, some of which include misdiagnosis, failure to diagnose, prescription drug errors, inadequate surgical aftercare, faulty medical equipment, improper administration of anesthesia and subpar facility management practices.
Injuries from medical malpractice can come in many forms with varying degrees of severity. Medical malpractice claims can help compensate the victim for some of their losses. Damages include economic losses such as lost wages and medical expenses, and non-economic harms such as pain and suffering.
What is Wrongful Death?
Wrongful death refers to the death of a person due to a fatal accident or injury as a result of the wrongful act or negligent actions of another person, either intentionally or unintentionally.
Wrongful death claims are considered civil actions, as opposed to criminal. This means if you have lost a family member due to wrongful death, you may be able to bring a claim for wrongful death claim, also referred to as a fatal injury claim, and receive financial compensation for the losses and expenses you incurred as a result of the death.
Wrongful death can occur as the result of many different forms of negligence, one of which is medical malpractice. Other causes of fatal injuries that give rise to a wrongful death claim include:
- Motor vehicle accidents
- Premises liability (slip and falls, dog bites, pool accidents, etc.)
- Workplace accidents
- Pedestrian accidents
- Defective products
Medical Malpractice Resulting in Wrongful Death
Not every instance of medical malpractice will result in a wrongful death claim, and not every wrongful death claim is accompanied by a medical malpractice claim. When someone dies as the result of medical negligence, two claims exist.
First, a medical malpractice claim exists for all injuries and damages caused by the negligence that were suffered by the deceased up until the moment of death. Even though the person has died, their medical malpractice claim may be brought by their estate.
Second, there is also a potential wrongful death claim available for specific losses experienced by close family members of the deceased. The specific family members that are eligible to file a claim will depend on what province you reside in and the circumstances of your situation.
Who Can File a Wrongful Death Claim?
In general, it is the close family members of the deceased that are eligible to bring a claim for compensation for fatal injuries or wrongful death. Each province in Canada has its own specific laws that stipulate which family members are entitled to make a claim. In Nova Scotia, the Fatal Injuries Act limits eligible family members to:
- Common-law partners
- Parents of the deceased, including stepparents
- Children of the deceased, including stepchildren
- Grandchildren of the deceased
- Grandparents of the deceased
Unfortunately, siblings and other extended family members are not allowed to file a claim in Nova Scotia. If you are interested in finding out who is eligible to file a claim in other Atlantic Canadian provinces or want to review the additional rules and restrictions that exist around fatal injury claims, the relevant legislation can be found here:
Prince Edward Island
Newfoundland and Labrador
What Types of Damages are Available in Fatal Injury Cases?
The types of damages that are available in a wrongful death claim also vary from province to province and depend on the situation. Generally, there are two types of damages that are available for those with a valid wrongful death claim: economic/monetary and non-economic/non-monetary.
Monetary Damages: Financial Expenses
Wrongful death claims will inevitably come with associated monetary losses caused by the fatal injury. Also referred to as pecuniary damages, these are the out-of-pocket financial losses resulting from the person’s death.
One example of monetary damage that is available in a fatal injury claim is dependency loss. These are considered the financial losses the surviving family will experience following the death of their loved one.
When awarding damages for dependency loss, the courts will consider factors such as the wages of the deceased before their death, the surviving family’s income, ages of the surviving family, insurance benefits and benefits from the deceased person’s estate.
Other examples of monetary losses include:
- Funeral and burial expenses
- Medical bills and expenses
- Loss of financial support
- Travel expenses incurred in visiting the deceased between hospitalization and the death
- Loss of future earnings anticipated over the victim’s lifetime
- Reasonable other out-of-pocket expenses incurred for the benefit of the deceased
Non-Monetary Damages: Loss of Care, Guidance and Companionship
Losing a loved one will additionally result in non-financial losses such as the grief and sorrow experienced by family members and the loss of care, guidance and companionship that the deceased may have provided had they not passed away.
Of course, if you have experienced the death of a loved one in the past, you understand that no amount of money could ever make up for the loss of that person. Consequently, it is extremely difficult for courts and lawyers alike to attach a monetary amount to these non-economic losses.
In determining an amount for these non-pecuniary damages, the court will consider your closeness with the deceased. If it is your spouse, they will look at the length of your relationship, your shared activities, whether you had children, your shared expenses and your general commitment and compassion for each other.
Children are also considered for compensation for their own loss of care, guidance and companionship. Younger children are typically awarded greater amounts in damages because they will be without their parent or guardian for a longer time. The courts generally consider the loss of guidance elements of a claim to be more significant for a younger child who did not have the opportunity to learn from their parent.
How Long do I Have to File my Claim?
As you may be aware, all legal claims have some form of limitation date. That is, you must file your claim before that limitation date has passed or you might miss your opportunity to sue. While the standard limitation date in Nova Scotia is two years, fatal injuries have a shorter expiration date. As per the Fatal Injuries Act, you must start your claim within one year after the death of the deceased person.
How to Start a Medical Malpractice Fatal Injury Claim
While it is always a personal choice as to whether or not you hire a lawyer for your claim, medical malpractice suits can be some of the most complex and challenging cases to succeed in, especially when there is a death involved.
We recommend contacting an experienced personal injury lawyer as soon as possible if you think a loved one has passed away as the result of medical malpractice. NOVA Injury Law’s free case review process is a risk-free way of understanding whether you not there is a valid claim. If there are enough grounds to file a wrongful death lawsuit, we can help you move forward with your claim and start collecting evidence.
How can NOVA Injury Help you?
Doctors and other healthcare providers have massive insurance funds, meaning they often have a wealth of resources to defend their actions. This can be understandably intimidating for those who have just lost a loved one and are wanting to receive compensation for their losses. To maximize your chances of receiving fair compensation, preparation is key.
NOVA Injury Law is the only firm in Atlantic Canada with a doctor on the team, which gives us a unique advantage when advocating for the interests of our clients. Chief Medical Consultant, Dr. Laura Mitchell is a practicing emergency room physician with special training in occupational medicine. She helps NOVA Injury Law support our clients’ medical malpractice claims by gathering the most complete, accurate and convincing medical evidence available.
If you would like to learn more about medical malpractice fatal injury claims, contact us now to book your free case review. Our team at NOVA Injury Law is available to answer all your questions and represent you throughout this challenging process. We promise to provide you with the compassion and support that is needed during this extremely difficult time. If you believe that your loved one has passed away as the result of medical malpractice, call NOVA Injury Law today for FREE CASE REVIEW at 1-800-262-8104.