Do Canadian Courts Award Punitive Damages to Medical Malpractice Victims?

All physicians in Canada who are in private practice or who work for hospitals must have medical liability insurance. Liability insurance, available through the Canadian Medical Protective Association (CMPA), has its premiums (also referred to as membership fees) determined by the type of medicine a Canadian physician performs and the region in which he or she works. There are three fee regions for CMPA coverage, Ontario, Quebec, and the rest of Canada. Not based upon a doctor’s medical record or history of complaints and payouts, insurance premiums are standardised through these three regions.

Fees that are paid to CMPA provide physicians with insurance coverage as well as the right to obtain legal representation when medical malpractice lawsuits arise. But don’t be deceived into thinking that doctors pay astronomical premiums for this coverage as provincial governments reimburse doctors for some of the CMPA membership fees they pay, with the amount provided by each government not made public. The Canadian government claims that it offers these reimbursements to their physicians in order to discourage doctors from moving their practice to another province or to the United States. Many believe that the fact that the CMPA does not base fees upon a doctor’s record means that doctors aren’t appropriately penalized when they commit an act of medical malpractice, thus putting the general populace at risk of further injury. Most disciplinary action inflicted upon Canadian doctors is accomplished on the provincial level by the licensing body there, with disciplinary actions ranging from losses and suspensions of medical practice privileges to fines.

Many have criticized the CMPA for its zealous defence of Canadian physicians and accuse the organisation of not entertaining reasonable medical malpractice offers as a means to discourage the filing of such cases in the first place. And, since the losing party of a Canadian medical malpractice
lawsuit must pay approximately two-thirds of the successful party’s legal fees and the CMPA’s practice of incurring large legal expenses when it defends medical malpractice claims, many legitimate medical malpractice claims are never filed.

Characteristics of Medical Malpractice Punitive Damages that are Awarded in Canada

The most often seen damages that are sought by victims of medical malpractice are punitive damages. And where punitive damages are concerned, Canadian courts usually can be characterized as follows. Canadian punitive damage compensation:

  • Are most often the exception rather than the rule
  • Awarded only in cases of the degree from which the ordinary standards of behaviour are malicious, arbitrary, high-handed, or highly reprehensible
  • Are assessed in proportion to harm caused, degree of misconduct, vulnerability of the injured party and advantage or profit gained by the doctor involved
  • Only is taken into consideration with no other penalties or fines are assigned
  • Is often awarded in cases where the doctor’s misconduct would otherwise go unpunished and monetary damages are inadequate to represent deterrence, retribution or denuniciation
  • Is not used for compensation to the injured person
  • Is used to deter the doctor from participating in the behaviour again
  • Is awarded in an amount no greater than necessary to accomplish their purpose
  • Is considered a “windfall” to the injured party

Characterized as moderate, punitive damages in Canada are considered by the government to been generally sufficient for their purpose.

When to Consult with a Canadian Medical Malpractice Lawyer in Your Area

Punitive damages are effective in regulating the behaviour of Canadian physicians; but, don’t let the many stipulations or the behaviour of the CMPA dissuade you from filing a medical malpractice suit should you suffer injury at the hands of your doctor or other healthcare provider. If you can collect any monetary award of damage, you will greatly enhance your ability to take care of your medical issues that have been created from the medical malpractice. Contact a personal injury lawyer experienced in handling medical malpractice lawsuits in your area for a consultation concerning your claims.

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