Derivative claims

The Family Law Act and Derivative Claims

Ontario’s Family Law Act (the FLA) creates a cause of action (i.e. grounds to file a lawsuit) for the family member of anyone who has been injured or killed as a result of the fault or negligence of another person. This includes the negligence of a health care professional.

Who is Considered a “Family Member”?

Under the FLA, a “family member” is an immediate family member only, and includes a spouse, parents, grandparents, brothers, sisters, children, and grandchildren.

What Can Family Members Claim For?

Family members may file a claim for:

  • Expenses that were reasonably incurred “for the benefit of the person injured or killed”;
  • Reasonably incurred funeral expenses;
  • A reasonable allowance for travel expenses incurred while visiting the injured person during their treatment or recovery;
  • A reasonable allowance for nursing, housekeeping, or other services provided for the injured person, or for loss of income resulting from these activities
  • Compensation for loss of guidance, care, and companionship that the family member may have reasonably expected to receive from the person had their injury or death not occurred.

What Does This Mean in a Medical Malpractice Case?

In the context of a medical malpractice case, this means that a family member can make a “derivative claim” that is secondary to the main medical malpractice lawsuit.  In many cases, these derivative claims can be significant, sometimes in the hundreds of thousands of dollars.

At Sommers Roth & Elmaleh, a large portion of the derivative claims that we bring on behalf of clients have to do with extraordinary expenses and time that parents or family members have spent caring for a disabled child (i.e. a claim for “services provided” by the parents to that child) or for loss of income as a result of providing those services.

Services Provided

Parents often seek to recover damages for services or care provided to their injured child in the wake of a medical error. Questions that commonly arise in the context of such a claim include:

  • Were the services or care provided reasonably required;
  • What is the value of those services or care?

Services or care provided to a child injured by medical error or negligence vary depending upon the severity of the injuries. However, care and services can include things such as grooming, changing diapers, feeding through feeding tubes, hygiene, monitoring for seizures, therapy or skills development, accompanying to the hospital or appointments, etc. Where a parent can establish that such services or care were reasonably required, they can claim damages for that care. Caselaw has recognized that such expenses can be claimed even where the injured child is in hospital, rehabilitation, or care facility.

The larger question in such cases often becomes what is the monetary value of such services provided by parents? There are generally two approaches used in such cases. One involves calculating a general global total, which is the approach most often proposed by defense counsel.  The other involves calculating cost for services based on an hourly rate.  In some cases, the hourly rate is calculated using the rate charged by personal care workers or agencies.

Loss of Income

Family members can claim their own income loss resulting from the death or injury suffered by their parent, spouse, child, sibling or grandchild.

In many cases, income loss due to an inability to work because of bereavement or assisting an injured family member is sufficient grounds to make a claim. However, there may be limits to what is reasonable.

Medical malpractice claims and derivative claims stemming from medical error and negligence should be handled by lawyers with extensive experience in this area and the knowledge necessary to skillfully and effectively guide clients through this process.

At Sommers Roth & Elmaleh we have been representing patients and the families of patients affected by medical negligence for more than 40 years. We have set a number of ground-breaking legal precedents, and are frequently at the forefront of major developments in medical malpractice litigation. We have represented clients in all parts of Ontario and from across Canada, including Newfoundland, Quebec, Saskatchewan, Alberta, and British Columbia. Call us at 1-844-777-7372 or contact us online for a free consultation.

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