In situations of the first kind, patients often decide to undergo civil litigation against the doctor for medical malpractice and negligence, and can ask for punitive damages if the medical professional in question deliberately and consciously neglected or harmed the patient, or attempted to conceal his negligent actions. However, what can be done by the family of the deceased patient in such cases? In one groundbreaking case from Alberta, such a precedent has been set in Steinkrauss v. Afridi.

In this case, the doctor attending Deirdre Steinkrauss was found to have provided sub-par care to his patient by failing to perform genetic testing and the subsequent late diagnosis of her breast cancer. Mrs. Steinkrauss sued Dr. Afridi, but passed away shortly after. During litigation, it was discovered that Dr. Afridi not only failed to live up to the doctor-patient duty of care, but created new medical records to push responsibility for his error from himself onto the patient. While this forgery would certainly have opened Dr. Afridi up to punitive damages had Mrs. Steinkrauss lived, the initial judge ruled that such damages were not awardable to the deceased’s family under the Fatal Accidents Act. Indeed, similar cases in other provinces, particularly Lord v Downer in Ontario, were used to make this ruling.

However, the Appeals Court of Alberta overturned this decision, holding that according to the FAA, it was up to the court to decide which types of damages were appropriate for any given case. This ruling has opened up the possibility of punitive damages to surviving dependents, and could have long-lasting changes in how courts award damages to dependents in civil and class action suits.

The Fatal Accidents Act was originally enacted to allow surviving dependents to recover monetary losses or emotional damages due to the wrongful or preventable death of a loved one – missed wages, health care costs, and pain and suffering experienced, for example. As we’ve previously discussed in how compensation for personal injury claims is calculated blog post, punitive damages are not meant to compensate the dependents for their suffering or tangible loss, but rather to punish the wrongdoer for excessive, flagrant, or obscene actions while causing that suffering. Due to the egregious actions of Dr. Afridi in forging his medical records, the court evidently decided that in this case, the seeking of punitive damages was applicable in this case. And while this clearly opens the door to similar claims in the future, due to the long tradition of rejecting punitive damages, similar rulings will likely be implemented only in similarly extreme cases.