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The most difficult thing a person can experience in the entire life is to lose a family member or loved one due to, or contributed by, failures of healthcare providers or medical professionals to provide the appropriate standard of care and treatment.
Medical negligence resulting in a person’s death is extremely distressing and the process of determining the cause of death can be both frustrating and confusing. To assist, medical negligence solicitors will work alongside medical experts to unmask the negligent care and treatment, to seek justice and to pursue compensation for the loss of a family member in such tragic circumstances.
A person’s life will never be replaceable by any amount of money, but the financial awards can recover the losses incurred after the death and secure any future losses. This would make a big difference to the deceased’s family.
When someone dies because of medical negligence, certain classes of people can bring a claim on behalf of the deceased and have a right to seek compensation for the deceased’s injuries and death after they have died.
The property and affairs of a deceased person are known as their Estate.
If the deceased left a Will, the Executor(s) are considered to be the personal representatives and entitled to claim on behalf of the Estate for the interests of beneficiaries named in the Will. A “Grant of Probate” will be required to evident the entitlement.
People who benefit under the Will may be able to seek compensation for the deceased’s pain and suffering leading up to their death and any financial losses suffered as a result of medical negligence.
If the deceased had no Will, the family member could apply to be appointed as an Administrator of the Estate and the distribution of assets will fall under the rules of intestacy.
Stephensons have a specialist probate department and they can assist you with this.
Under the Fatal Accidents Act 1976, a statutory amount can be awarded to certain limited classes of people if he death was caused by negligence. The current award is £15,120 (since 1st May 2020).
The limited categories
In addition, some people may be eligible to bring a claim as a dependant for any loss of dependency. The person bringing the dependency claim must have been reasonably and evidently reliant on the deceased’s financial supports or services prior to their death and these elements can longer be provided by the deceased due to the medical negligence. If the claim was successful, the dependant could be awarded compensation for the particular loss of support and services that can no longer be provided due to the death of the deceased.
The Fatal Accidents Acts 1976 contains a list of categories setting out who may be eligible to bring a dependency claim:
The claim can be brought on as soon as someone’s passing, however, there is a time limit in which you have up to 3 years from the date of death to make a claim for medical negligence resulting in death.
However, the deadline can be different in certain cases. For instance, if someone did not realise the death was resulted from medical negligence at the first place but found out after the 3-year deadline has passed, the claim could still be made because the law allows the deadline to have up to 3 years from the date when a person first becomes aware that medical negligence was responsible for someone’s death. This is known as the “date of knowledge” which is defined in the section 14 of the Limitation Act 1980.
Medical negligence resulting in death can come in different forms. Some examples of the types of claims are as follows:
In cases of medical negligence, a claim for compensation can contain several elements which reflect not only the suffering experienced by the deceased, but also the losses and impacts have had on the deceased’s family. The elements of compensation usually include:
The family can make a claim for compensation for the pain, suffering and loss of amenity (“PSLA”) experienced by the deceased before they died. This is known as a claim for general damages. The amount of general damages is generally assessed by the severity and length of the PSLA experienced by the deceased from the date of negligence up to their death.
Moreover, they can make a claim for compensation for the past losses and expenses incurred as a result of the medical negligence, for example, the loss of earnings/pensions, medical expenses or care & assistance costs. This is known as a claim for special damages and the losses are calculated from the date of negligence up to the deceased’s death.
Family members also can seek compensation for funeral expenses, including the cost of the wake, memorial service, headstone and probate, in respect of the deceased under the s.3(5) of the Fatal Accidents Act 1976.
In addition to funeral expenses, other damages can be claimed under Fatal Accidents Act 1976 include the statutory bereavement award and the loss of financial dependency.
Since 1st May 2020, the amount of bereavement award is set at £15,120. For those deaths occurring before this date, the award was set at £12,980. The eligible claimant for this award is limited to:
The deceased’s dependants can pursue a dependency claim for the loss of financial dependency and loss of service dependency.
The financial dependency must arise in a situation that the dependant has been financially reliant upon the deceased and has been financially worse off than they would have been had the deceased survived. The deceased’s lost pension, earnings or savings which were contributed to the dependant’s finances may also be considered in the claim. Bearing in mind that the deceased would still have continued to earn and spend on themselves, and thus a percentage deduction will be made to take this into account.
The loss of service dependency is where the deceased will no longer provide or perform an act for the benefits of the dependant then they used to be, for example, doing DIY tasks, home improvements or gardening. It may be more difficult to recover this damage than the financial dependency because the deceased’s services are not usually recordable, and thus it’s hard to provide evidence.
A list of eligible people who can make this dependency claim is set out in the s.1(3) of the Fatal Accidents Act 1976 which has been mentioned above.
In some cases of medical negligence, family members can seek compensation for the ‘loss of love and affection’. This is known as the Regan Award, which is established by the case of Regan -v- Williamson. This award is typically between £1,000 and £3,000 but can be as high as £5,000. It is usually only available to spouse or civil partner of the deceased or to the children who have lost a parent.
In some cases, the cause of death is uncertain or required to be investigated, in such circumstance, an inquest may be held to establish who, when, where and why the death occurred.
The inquest can’t determine whether medical negligence was a factor in death, but the coroner or jury can find ‘neglect’ if they are satisfied that the deceased was not provided with standard of care, treatment or medical attention and there’s a clear link between the ‘neglect’ and the death.
The finding of ‘neglect’ in the inquest was initially spotlighted in the case of R v HM Coroner for N Humberside and Scunthorpe ex p Jamieson [1995] where the claimant appealed against the coroner for wrongly directly the injury not to consider a verdict of or a reference to ‘lack of care’ which could properly be found to have contributed to or aggravated a cause of death.
In the case of IR (Lewis) -v- Senior Coroner for North West Kent [2020] EWHC 471, the Court put stress on the need for a coroner to put the issue of neglect to a jury where there is sufficient evidence and extended the definition of ‘neglect’:
“Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.”
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