This article is about tort law and how medical expertise plays a vital role in personal injury cases. It explains the concept of torts and negligence, as well as intentional torts. It also covers what types of claims are available to victims and outlines when a defense medical evaluation may be necessary.
The article provides an overview of experts that can be consulted for different types of injuries, such as traumatic brain injuries or permanent disability cases, pointing out relevant qualifications and experience these professionals should have to provide effective testimony before the court.
This clear explanation is designed for those injured who seek legal compensation from the wrongdoing party, including attorneys, insurance adjusters and anyone else interested in pursuing a civil suit through tort law in Canada.
Personal injury is an umbrella term that can refer to any injury sustained to the body, mind, or emotions due to an accident caused by the fault of another party. Personal injury cases often involve litigation. A tort arises when there has been a breach of a legal duty that is recognized under the law and the appropriate remedy is a claim for damages.
Tort medical, Defence Medical Evaluation, or “Med-Legal” are terms used interchangeably and mean the same thing. It is a comprehensive, independent, objective medical evaluation designed to define case issues and assist in conflict resolution.
What Is Tort Law?
Tort law is the area of the law that covers most civil suits. In general, any claim that arises in civil court, with the exception of contractual disputes, falls under tort law.
The concept of tort law is to redress a wrong done to a person and provide relief from the wrongful acts of others, usually by awarding monetary damages as compensation. The original intent of tort is to provide full compensation for proved harms.
Damages Awarded in Personal Injury Cases
Tort law requires those found to be at fault for harming others to compensate the victims. Typical harms include the loss of past or future income, payment of medical expenses, and payment for pain and suffering. There may also be additional punitive damages that are meant to punish the offending party in excess of full compensation. Tort law is considered a form of restorative justice since it seeks to remedy losses or injury by providing monetary compensation. There are three main tort law categories: suits alleging negligence, intentional harm, and strict liability.
Tort law is a cornerstone of the Canadian legal system.
It provides compensation for people who have been injured; or whose property has been damaged by the wrongdoing of others. The word tort comes from the Latin tortum, meaning “wrong, injustice.” The purpose of tort law is not to punish wrongdoers but to provide damages to victims as compensation for their losses.
Although most tort law is judge-made, some originate in statutes that vary from province to province. Unlike criminal law, which involves the state, tort law is used by individuals to claim compensation. It also differs from contract law, where parties have agreed to specific terms or conditions.
Intentional Torts and Negligence
Intentional torts are the most serious. They are deliberate acts intended to injure others or to interfere with another person’s rights. However, people are more frequently injured because of carelessness rather than the intentional acts of others. This is the tort of negligence. It is the most important of the modern torts.
The famous English case of Donoghue v. Stevenson, in which a manufacturer of a soft drink carelessly allowed a snail to crawl into a bottle (it decomposed and caused the plaintiff to become ill), established the principle that everyone is under a legal obligation to take reasonable care to ensure that others will not be injured because of careless conduct, save for a few exceptional situations.
Everyone must live up to the standards of the “reasonable person.”
This is an important concept of the negligence tort. Based on objective guidelines and built on precedents, the standard allows the court to adapt to the changing circumstances of what might be considered “reasonable.” Similarly, if people, through their own negligence, cause or contribute to their own injuries, they will be held at least partly responsible for their damages under the contributory negligence defence.
Negligence expanded significantly in the 20th century. It now covers a wide range of accidents. Bar owners, for example, can be held liable if they fail to ensure that their intoxicated customers take reasonable care when going home. Drivers can be held responsible if they do not ensure that the occupants of their cars are wearing seat belts; or if they allow incompetent persons to drive their cars.
Courts are reluctant, however, to hold public authorities liable for their negligent decisions instead of their negligent acts. It is felt that decisions that raise core policy issues involving the exercise of political discretion be left to elected officials and not be second-guessed by the courts.
If found liable, the defendant must compensate victims for losses. Compensation will not only include medical bills not covered by health insurance, lost past and future income and the costs of future care; it will also include awards for pain and suffering and the loss of the enjoyment of life.
If a tort causes death, the estate and dependents are entitled to seek compensation from the tortfeasor (the person guilty of tort) for their financial losses. Dependents are entitled to compensation for the loss of support they would have obtained from the person killed. Some provinces, such as Alberta, allow the recovery of damages for the sorrow and grief of survivors. Estates are limited to recovering only monetary losses caused by the death, such as funeral expenses.
Independent Medical Examinations
In circumstances involving injury, the defending party is likely to request an Independent medical examination (IME), also known as a defense medical or Tort Medical. The primary purpose of a defence medical examination is to respond to the medical diagnosis and evidence of impairments presented by the plaintiff.
An independent medical evaluation (IME), Tort Medical, or defense medical evaluation (DME) is an assessment performed by a physician who does not treat the patient. Disability insurers, employers or lawyers often request an IME when faced with uncertainty about the cause or nature of a claimed disability or the functional status and/or rehabilitation potential of the claimant. Independent medical evaluators are retained by the requesting party; therefore, their relationship with the patient differs from that in the traditional physician–patient model. It is not the role of the defence expert to try to solve the plaintiff’s medical problems or to provide treatment.
A qualified medical expert in these circumstances must be able to examine the material facts of the case, such as medical records and lay witness testimony, etc., prepare written reports, and provide expert testimony before the court. At the end of the day, although hired by a particular party, the Independent medical expert has a duty to assist the court above all else. The opinions of a medical expert may be based on their personal experience working in the medical field as well as relying on academic studies and other medical publications where warranted.
Types of Cases Requiring Expert Testimony
The expert should be able to break down the scientific, technical language and terminology so that someone without any medical training can understand the key issues of a case. A medical expert witness must be able to state opinions with “reasonable medical certainty” in order to be afforded “expert” status. They must also aid the judge or jury in reaching a more valid conclusion about the facts of the case than they would have without the expert’s testimony. The opinion of a medical expert witness testimony can be useful in a wide variety of cases.
Cases of life-altering injuries, such as traumatic brain injury (TBI), are common personal injury claims that require medical expertise during the litigation process. When litigating a traumatic brain injury case, experts that may be useful include neurologists and neuropsychologists, who can assess the extent of the patient’s TBI and discuss the cognitive impairments that can occur as a result. Depending on the severity of the injury, a life care planning expert may also be useful in projecting the cost of ongoing care throughout the patient’s life.
Considerations When Selecting an Expert Witness
Certain personal injury claims may require the perspective of a medical expert witness to discuss pain and suffering. These witnesses will most frequently be called to discuss the life-long implications of any injuries sustained by the plaintiff. The two types of pain and suffering include:
- Physical Pain and Suffering — bodily injuries sustained as a result of the incident that affects the plaintiff’s quality of life.
- Mental/Emotional Pain and Suffering — any emotional trauma that a plaintiff experiences as a result of the incident, including emotional distress, PTSD, depression, fear, anger, humiliation, and anxiety, among others.
Although the majority of patients only require medical care for a short time, some patients who have suffered debilitating illnesses or injuries may require extensive support and potentially round-the-clock care throughout their lives. Permanent disability means more than pain and suffering; it also comes with difficulty finding work and income loss over the course of the victim’s life. This amount of care often requires a great deal of planning. The two primary experts that victims of permanent disability tend to consult are life care planners and vocational rehabilitation counselors.
When selecting experts to testify, the referrer must be cognizant of the particular specialty of the medical expert in order to make the strongest case. Medical care almost always involves input from multiple practitioners at different stages of treatment. As a result, litigating any case with a medical component may require more than one medical expert witness.
Ultimately, the best medical experts are the ones who can clearly articulate the medical treatment and disability process to a judge and jury without intimidating or confusing them.
The success of a medical case often hinges on the expert testimony of an objective and unbiased witness whose duty remains clearly with the court.
With proper vetting and consideration, their insights into the nuanced complexities of personal injury cases can help the court ascertain facts with accuracy and clarity: all while helping individuals get the justice they deserve.
