Filing a Wrongful Death Lawsuit for Medical Malpractice

May 30, 2023

There is never a good time to say your final goodbyes to a loved one, but somehow the tragedy worsens when an untimely death is caused by the negligence of a trained healthcare professional. Having to navigate the legal system amidst the grieving process is burdensome, and you shouldn’t have to bear it alone. This article is designed to outline your options when it comes to holding medical professionals accountable for wrongful death.

What is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a cause of action that allows individuals to bring a claim in civil court against individuals and/or organizations whose negligence caused the death of their loved one. This type of claim is available for undue fatalities caused by motor vehicle accidents, medical malpractice, and other professional negligence.

Standard of Care

In order to determine whether the facts alleging wrongful death actually rise to a lawsuit, the applicable standard of care must be analyzed together with the actions and omissions of the healthcare professional. If it is found that the health care professional has deviated from the standard of care and thereby caused the wrongful death, there will be a legal basis to commence a lawsuit.

What Does the Law Say?

Family Law Act (FLA):

Who Can Sue?

Under the Ontario Family Law Act, close family members and dependents of the deceased have a right to sue for the wrongful death of their loved one.

While the law recognizes spouses, children, grandchildren, parents, grandparents, siblings, and other relatives as close family members, anyone who can establish dependence on the deceased may be eligible to pursue a claim.

What are the Different Types of Compensation?

Compensation for the claimant(s) varies based on the nature of the relationship between the deceased and the claimant. Claimants may be entitled to the following types of compensation:

Loss of Dependency Income:

While no amount of money can replace a loved one, a sudden death in the family inevitably affects the financial stability of those dependent on the deceased whether it’s in the form of unexpected funeral expenses and/or loss of income.

Courts consider various factors when determining the appropriate compensation for loss of income, including the expected earnings of the deceased, the percentage of the deceased’s income that was consumed by the family, and post-death benefits already received or to be received by the family.¹

Loss of Claimant’s Income:

Loss of income sustained by the claimant(s) may be compensated if the court finds that the claimant was unable to work due to the pain and suffering caused by the death.

Loss Of Guidance, Care and Companionship:

This type of compensation is awarded based on the nature of the relationship, age and suffering of the claimant(s).

Other Related Expenses:

Additional expenses may be subject to compensation, including funeral and burial expenses, medical expenses of the deceased, travel expenses incurred by the dependent while visiting the deceased during treatment, as well as loss of household or childcare services that would have been provided by the deceased.

Limitation Act: Limitation Period

Wrongful Death claims are subject to the Ontario Limitation Act, 2002, which requires a claimant to commence the proceeding before the statutory limitation period expires. After the limitation period runs out, the claimant’s right to sue terminates.

The limitation period is generally two years after the date of the incident giving rise to the claim, or the date of the discovery of the incident giving rise to the claim.

The particulars of each specific case determine when the limitation period starts to run. In medical malpractice cases, the limitation period is triggered on the date of the death, or the date the negligent act resulting in death was committed. The latter is often seen in medical malpractice cases of misdiagnosis or mistreatment leading to wrongful death.

It is important to note that the limitation period also differs for claims that are minors at the time. Minors are permitted to advance their wrongful death claims when they reach maturity or retain a litigation guardian to act on their behalf.

Threshold for Medical Malpractice

Doctors are protected by the national legal insurance fund known as the Canadian Medical Protective Association (CMPA). Physicians pay a premium for CMPA membership, and in turn receive legal assistance with absolutely no financial limits.² As over 80% of the premiums are subsidized, the doctor’s legal defence team is largely funded by none other than the taxpayer’s money. Considering their resources, pursuing a lawsuit against a doctor may be challenging but it isn’t impossible. There are also other avenues for taking action against negligent health care professionals.

Different Avenues for Holding Health Care Personnel Accountable

Medical professionals are regulated by agencies such as the College of Physicians and Surgeons of Ontario (CPSO) and College of Nurses of Ontario (CNO). Membership to these agencies are required for practice in Ontario, and each agency has a committee designated to receive and investigate patient complaints. The agencies have the authority to implement disciplinary measures such as restrictions to practice, as well as the temporary or permanent revocation of membership.

Patient Care Relations

Complaints may also be submitted to the hospital’s Patient Care Relations team. Larger medical facilities such as hospitals typically have Patient Care Relations teams that are responsible for reviewing and investigating patient complaints.

However, due to employer-employee confidentiality, the disciplinary process becomes an internal matter that is not subject to public disclosure, and patients will not receive any updates regarding the outcome of the investigation. Nevertheless, the complaint will be noted as the employer is required to investigate and if necessary, discipline the party behind closed doors.

Conclusion

There are several avenues available for those seeking recourse after a wrongful death has occurred. While the idea of pursuing a lawsuit may be intimidating for those without any prior experience or knowledge in the legal field, your lawyers will support you throughout your journey to justice. This way, you can focus on healing while your trusted team takes care of your recourse.

At Gluckstein Lawyers, we here to answer your personal injuries questions. We have offices across Ontario and your initial meeting is free and without obligation on your part. We will never charge you legal fees until your claim is settled. Contact us today.