In medical malpractice claims, children or others who have been injured due to the negligence of a physician or other health care professional may be able to claim for future care costs.
Future care costs often form the largest financial component of an injured person’s claim, and it is helpful for families and individuals who are considering filing a medical malpractice suit to understand these costs in detail.
What Are Future Care Costs?
Future care costs can generally be defined as the amount required to purchase medical and other professional assistance, items and services that will, as much as possible, restore the injured person to the position they were in before their injury occurred.
Future care costs can include:
- Modifications for a home or vehicle;
- Costs of a personal support worker (PSW), Registered Nurse (RN), Rehabilitation Support Worker (RSW) or other caregiver;
- Therapies including physiotherapy, speech-language therapy, occupational therapy, psychological counselling, behavioral therapy, music therapy, hippotherapy etc;
- Home maintenance services;
- Tutoring and educational assistance;
- Special transportation needs;
- Drugs not covered by OHIP or medical insurance such as botox; and
- Healthcare services including, chiropractor, massage, and similar.
These are only some of the many costs that injured individuals and their families may expect to incur following an injury for which they can seek compensation.
Costs Depend on Severity of Injuries
The amount awarded as future costs damages could be millions of dollars, depending on the extent and severity of the person’s injuries and the amount of care that is required to meet their needs.
In some cases, the injured person’s care may involve additions and modifications to their current lifestyle. In other instances, the individual’s injuries may be so severe that they require a complete lifestyle change, requiring a new, custom-accessible home and around-the-clock care at home.
A person who was seriously injured due to medical malpractice, but who is able to generally maintain their previous lifestyle, may be able to claim for future costs of specific expenses such as physical therapy, equipment, counselling, massage therapy, chiropractic treatments, attendant care or similar.
In such situations, costs for future care will be calculated based on a projected value for these services for the expected length of the injury or disability, or for the person’s lifetime, depending on the circumstances.
Total Lifestyle Change
In cases where there is a catastrophic injury and, for example, the victim ends up in a wheelchair or suffers a traumatic brain injury, large-scale changes to their lifestyle will generally be required and that person will need substantial future care expenses.
These may include regular rehabilitation treatments, massage therapy, physiotherapy, full-time care of a nurse or personal support worker, medical treatments, expenses for travel to and from appointments, and similar. Additional, non-medical costs may include the re-design and renovation of a home, modifications to a car or other vehicles, wheelchairs and other equipment, installation of overhead lifts or elevators, housekeeping and other home maintenance services, cooking services, and similar.
Calculating Future Care Costs
Future care costs are evaluated and calculated based on the injured persons needs at the time of the assessment and their anticipated future needs, using insight from various experts and medical professionals.
Decisions about individuals who require significant, ongoing care in their home are made by a judge or jury, and usually involves a Life Care Planner who will prepare a Life Care Plan or a Future Care Cost Report.
Schrump v. Koot
The Ontario Court of Appeal’s decision in Schrump v. Koot is generally cited as one of the leading cases in assessing damages for future care.
The case was an appeal, by defendants, of a previous decision that awarded an injured plaintiff $20,000 for a severe back injury resulting from a car accident. The main issue on appeal was whether the trial judge had failed to tell the jury to disregard the potential of the plaintiff requiring additional future back surgery. The plaintiff’s expert had testified that the probability of additional surgery being required was between 20-50%, whereas the defendant’s expert had testified that the possibility of future surgery being required was “remote”.
The defendants argued, on appeal, that personal injury damages should exclude the possibility of certain future events. The appeal was ultimately denied, but the decision set out a number of principles that are still followed to date, including the fact that it is not necessary for an injured plaintiff to prove that future care loss or damage will occur, only that there is a reasonable chance of such loss or damage occurring.
In every instance of calculating costs for future care, this and other case law provides a guide in determining what the appropriate award is for the person in question.
Graham v. Rourke
In Graham v. Rourke, the Ontario Court of Appeal again held that the plaintiff does not need to prove that they will certainly incur future costs or expenses. If the Plaintiff establishes a real and substantial risk of future expenses, s(he) is entitled to compensation.
At Sommers Roth & Elmaleh, our team of compassionate and skilled medical malpractice lawyers have been helping families affected by medical error or negligence for over 40 years. We have represented injured clients in some of Canada’s leading medical malpractice trials and have helped our clients secure awards that have been the largest in Canadian history. We take care of every element of our clients’ case, so that they can focus on moving forward. Call us at 1-416-961-1212 or contact us for a free consultation.
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