Wrongful Death Claims

What Is a Wrongful Death Claim in Medical Malpractice?

In Ontario, when medical negligence leads to a patient's death, surviving family members may have the right to pursue a wrongful death claim. In the context of medical malpractice, a wrongful death claim arises when an individual dies because of the negligent acts of a doctor, nurse, or other healthcare professional. 

Medical malpractice leading to wrongful death can take many forms. 

Common Causes of Medical Malpractice Wrongful Death

These claims can arise in situations which include, but are not limited to: 

• Misdiagnosis or delayed diagnosis 
• Surgical errors
• Medication errors
• Birth injuries resulting in the death of a newborn or complications leading to the death of the mother
• Hospital negligence, such as infection control failures or inadequate post-operative monitoring

Proving Negligence in a Wrongful Death Claim

In order to succeed in proving negligence, the individual(s) bringing the lawsuit must prove that the defendant physicians and/or nurses breached the applicable standard of care, and that the breach caused the death, leading to compensable damages. Both standard of care and causation must be proven for a lawsuit to succeed.

Who Can Bring a Wrongful Death Claim in Ontario?

Under Ontario's  Family Law Act, certain family members are entitled to bring a wrongful death claim. These family members include: 

• The deceased's spouse (including common law, but this requires cohabitation for at least 3 years)
• Parents
• Children 
• Siblings 
• Grandchildren

Each of these family members may have the right to claim specific losses recognized under Ontario law. 

Types of Damages in Ontario Wrongful Death Claims

A wrongful death claim in Ontario typically contains several categories known as “heads of damages” that reflect the different ways a family suffers after losing a loved one. Common heads of damages include:

1. Loss of care, guidance, and companionship: Compensation for the emotional loss of a loved one
2. Loss of dependency (economic loss): For family members financially dependent on the deceased's income.
3. Loss of services: Compensation for the household and caregiving services the deceased provided.
4. Funeral and burial expenses.
5. Medical expenses incurred prior to death, if any.

What Is a Dependency Loss Claim?

A dependency loss claim compensates family members who relied financially on the deceased. This often includes a spouse or children who depended on the deceased's income to support day-to-day living. The purpose of this claim is to replace the financial contribution the deceased would have made had they lived. The following must be examined when assessing this type of claim:

• The deceased's income and benefits (including wages, pensions, and employment insurance)
• The deceased's projected career path and likely future earnings
• The financial needs and life expectancy of the surviving dependents

Experts such as actuaries or economists quantify these amounts for the anticipated lost income over the deceased's expected working years, adjusted for tax and other contingencies.

What Is a Loss of Services Claim?

While a dependency claim focuses on the loss of financial support, a loss of services claim compensates the family for the loss of unpaid work the deceased performed around the home. Even if the deceased did not earn an income outside the home, the services they provided carry real economic value. For example, if a stay-at-home parent was responsible for childcare, their death may require the surviving parent to hire caregivers or cut back on employment to fill that role. Loss of services claims focus on childcare, housework, maintenance, yard work, or assistance in caring for elderly relatives.

Limitation Period for Wrongful Death Claims in Ontario

Wrongful death cases arising from medical malpractice are complex. They require technical knowledge of both medical and legal standards. It is important to note that wrongful death claims carry a strict 2-year limitation period. This means that in Ontario, a claim must be filed in court within 2 years from the date of passing. Following this time, a plaintiff's right to sue may expire, and they will not be able to pursue a wrongful death claim. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.