Changes to Tort

Author(s): Sloan H. Mandel

March 1, 2003

The following are some of the important proposed changes affecting an innocent accident victim’s right to sue an at-fault party (ie. a tort claim) that will be of interest to Health Care Professionals.

Recovery of Health Care Expenses

Currently, innocent accident victims who have suffered catastrophic injury (as defined by the regulation) can sue for “health care expenses”. Health care expenses include medical goods and services, rehabilitation goods and services and care costs. Conversely, innocent accident victims who have not suffered catastrophic injury cannot sue the at-fault party for medical, rehabilitation and care costs.

This restriction in the right to sue has resulted in terrible hardship to a number of innocent motor vehicle accident victims who have suffered serious and permanent injury and impairment. For example, under the current scheme, the innocent victim of a motor vehicle accident who has required an amputation of her leg, by definition, has suffered a non-catastrophic injury. Accordingly, this individual cannot sue for the medical, rehabilitation and care costs that are related to this horrific injury. Rather, the victim’s recovery of healthcare expenses is limited to accident benefits (up to 10 years of medical and rehabilitation coverage and a sum not to exceed $100,000 and up to 2 years of care, such recovery not to exceed $3,000 per month). In the example provided, the innocent victim cannot recover medical and rehabilitation goods and services after 10 years, she cannot recover more than $100,000 for her medical and rehabilitation needs and she cannot recover the costs associated with her care after 2 years.

The proposed change under Bill 198 expands the rights of innocent accident victims to sue for health care expenses. More particularly, innocent victims of a motor vehicle accident can sue for health care expenses if the victim has sustained:
Permanent serious disfigurement; or,
Permanent serious impairment of an important physical, mental or psychological function. In the context of a tort claim, the definition of catastrophic is no longer operative. This is an important and welcomed change to the current legislative scheme.

Pain and Suffering Deductibles

Our legal system permits innocent victims to sue wrongdoers for compensation. One element of this compensation is to address the victim’s “pain and suffering”.

In the context of a motor vehicle claim, an innocent victim may sue the wrongdoer for pain and suffering if the victim has sustained permanent serious disfigurement, or alternatively, permanent serious impairment of an important physical, mental and psychological function. If the injury is not permanent and serious, the innocent accident victim has no right to sue for pain and suffering. Even when the victim has suffered permanent and serious injury, claims for pain and suffering are reduced by a $15,000 deductible.

Importantly, one of the proposed changes under Bill 198 is to eliminate the deductible in cases where the award for pain and suffering exceeds the sum of $100,000. In most cases, awards for pain and suffering will not exceed the sum of $100,000, and as such, the deductible will continue to apply. However, the most seriously injured accident victims will benefit from the removal of the $15,000 deductible.

Similarly, when an innocent victim has been injured, family members may be entitled to compensation, including compensation for the “loss of care, comfort, guidance and companionship” that the injured party would otherwise have rendered to the family member had the accident not occurred. Currently, there is a $7,500 deductible that applies to a family member’s claim in this regard. In most cases, the deductible serves to eliminate any recovery that a family member might receive for this element of damage. However, the proposed changes under Bill 198 recommend that the deductible be eliminated in cases where the damage for the loss of care, comfort, guidance and companionship exceeds the sum of $50,000. Again, very few family members of victims will benefit from this provision. However, in some cases that have resulted in a death, or alternatively, where the victim has suffered a horrific amount of compromise, the proposed change will be of benefit to the victim’s family.

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