Death by medical negligence – how to make a claim

Only one claim can be brought for compensation, and whoever brings that claim must include the claims of everyone who may be entitled to compensation.

If the deceased had written a Will before their death, then the executor of the Will will usually bring the claim. In order to do this, the executor must apply for a Grant of Probate, which gives them official permission to act on behalf of the deceased’s estate.

If the deceased died intestate (without a Will) then a family member – typically a spouse, child or parent of the deceased – can apply for a Grant of Letters of Administration, which gives that person official permission to act on behalf of the deceased’s estate.

While the executor or administrator is the sole individual who brings the claim, they will do so on behalf of multiple people who are each entitled to receive compensation. Once the compensation is received, the executor or administrator is then responsible for distributing it between all of those who are entitled.

Those who may claim include the following:

1. Those who are named as beneficiaries of the deceased’s estate in a Will or entitled under intestacy law. They are entitled to compensation for the deceased’s pre-death pain, suffering and loss of amenities (also known as general damages).
   
   

2. Those who fall into one of the categories of people entitled to claim a bereavement award under The Fatal Accidents Act 1976.
   

3. Those who were dependent on the deceased either financially or for services that the deceased provided to them at the time of the death or who had a reasonable expectation that they would become so dependent in the future.

Under the Law Reform (Miscellaneous Provisions) Act 1934, any beneficiary of a deceased’s estate can receive a proportion of the general damages that the claimant would have received for any pre-death pain, suffering or loss of amenity that the deceased suffered as a result of medical negligence.

For example, if the deceased’s misdiagnosis meant that they suffered avoidable pain prior to their death, or were unable to work or take part in hobbies due to this, then the beneficiaries can claim compensation for that.

Compensation for general damages becomes part of the residue of an estate. The residue is the remainder of a person’s estate after specific gifts, debts, funeral expenses and Inheritance Tax have been paid.

Those who were dependent on the deceased, either financially or for services, can also claim compensation, in accordance with the Fatal Accidents Act 1976.

Dependency is a matter of fact, and it relies on someone proving that they relied on the deceased, either financially or received services from them, or both. Dependents must fall into one of the following categories:

• A surviving spouse or civil partner of the deceased

• A former spouse or civil partner of the deceased (for at least two years)

• Someone who cohabited with the deceased for at least two years

• The deceased’s children, grandchildren, etc.

• The deceased’s parents, grandparents, etc.

• Any persons treated as a child, grandchild, parent, etc. of the deceased

For example, if a husband passes away as a result of medical negligence, his wife may have depended on his income to make their mortgage payments and maintain their family’s quality of life. The husband may have also been responsible for a number of household chores, or for driving their children to school.

In this scenario, the wife would be able to claim compensation that reflects the impact of this loss on her financially or the financial impact of the loss of the services her husband provided.

Services provided by the deceased can be far-reaching, including:

• Walking the dog

• DIY

• Babysitting

• Gardening

When the executor or administrator of the claimant’s estate brings the negligence claim, they make the claim on behalf of everyone who falls within the circumstances above.

Bereavement Award

In addition to the above, certain relatives can also claim a fixed bereavement award if the deceased’s death was caused by medical negligence. Those who can claim are limited to:

• The deceased’s husband, wife or civil partner

• The parents or mother (if the parents are unmarried) of the deceased, if the deceased was under 18 and unmarried

The bereavement award is fixed. It is £15,120 for deaths on or after 1 May 2020.

Funeral Expenses

The compensation can also include a sum to reimburse the person who paid for the funeral and any other expenses associated with it.

Sadly, there are circumstances where a claimant does not survive to see the conclusion of their claim. Often claimants suffer serious complications due to the negligent care or treatment they received, which may shorten their life expectancy or make them more vulnerable to health emergencies. Sometimes they may die from an unrelated cause before a claim is concluded.

For example, if a misdiagnosis caused a claimant’s cancer to spread and become terminal, they may not live long enough for their claim to reach its final settlement.

In these unfortunate situations, their claim does not die with them. Section 1 of the Law Reform (Miscellaneous Provisions) Act states:

Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.

In layman’s terms, if it was possible to start or continue a claim at the date of death, then entitlement to bring or continue a claim passes onto their estate. If no claim has been started, then the three-year limitation period starts afresh.

Death can significantly affect the value of a claim:

• There will no longer be a claim for the costs of future care, treatments or loss of earnings for the deceased

• General damages may be reduced