Fatal Medical Negligence Claims
Can I make a claim if a family member has passed away due to medical negligence?
Dealing with the death of a family member or loved one is never easy, let alone when the circumstances around their passing involve negligent medical treatment which may have caused or contributed towards their death.
If you have had the unfortunate experience of losing a loved one due to negligent treatment it is possible to make a claim on behalf of their Estate. The claims process is generally started by the closest living family member of the deceased, such as their next of kin, son or daughter, or sibling. However, it would be necessary to be the Personal Representative of the deceased in order to have the legal authority to formally bring a claim on behalf of their Estate.
If the deceased had a Will in place which appointed an executor at the time of death, the executor of the Will can formally instruct a solicitor to take on the case. The executor is typically a close family member, and they will also need a Grant of Probate. If there is no Will in place, a grant of Letters of Administration will be needed instead to appoint a Personal Representative.
What will happen during the claims process?
If you would like to make a claim it is best to speak to a specialist medical negligence solicitor. They will offer you a free initial consultation, where they will ask you a few questions, usually over the phone to establish what happened. Solicitors who deal with medical negligence claims are aware of the need to deal with these cases sensitively and with patience and empathy.
If the solicitor believes that your case has merit they will start the claims process. They will begin by explaining to you what you may need to do if you are expected to attend a post-mortem and/or inquest, to establish the cause of the death.
Your solicitor will discuss the different ways in which you can pay for the legal fees for handling your case. Although most will do this using a ‘No Win, No Fee’ agreement.
The next stage is to collect the evidence needed to support your claim. This includes obtaining the deceased’s medical records, witness statements and the opinion of an independent medical expert. The evidence will be used to quantify the potential compensation amount.
Claims follow the Clinical Negligence Pre-Action Protocol, and as such most claims are settled out of court. Court proceedings are a last resort and are only entered into when it has not been possible to reach a settlement with the defendant’s insurer, or liability is denied by the medical professional or healthcare provider.
Should your case end up in court your solicitor, and/or appointed barrister will be there to support you every step of the way.
Is there a time frame for making a claim on the behalf of the deceased?
The claims process has to be started within three years of the date of the death of the person who experienced negligent treatment.
Examples of death due to medical negligence
Death due to medical negligence is rare but mistakes and misdiagnoses do unfortunately happen. Examples of fatal medical negligence claims include:
Delayed or missed diagnosis: Misdiagnosed illnesses are often those which have symptoms that can be mistaken for something else. Common medical misdiagnosis claims include:
- Multiple Sclerosis
There can also be negligent delays in diagnosing illnesses and infections such as meningitis and sepsis, along with other diseases including cancer, crohns and arthritis.
Delay in hospital referral: The failure to refer a patient to hospital who is presenting the early symptoms of an acute condition such as a heart attack, pulmonary embolism or brain haemorrhage, can also have fatal consequences.
Delay in surgery or surgical negligence: This may include the failure to operate in emergency circumstances which may lead to death, or a mistake made on the operating theatre which may lead to fatal internal organ damage.
Medication errors – If a patient is prescribed with the incorrect medication, or incorrect dosage, this can have fatal consequences.
Childbirth negligence – Negligent treatment during childbirth can sadly result in stillbirth or the death of the mother.
What exactly can I claim compensation for?
Losing a loved one is always a traumatic time for the family members involved, dealing with grief can also be made worse by financial stresses such as needing to pay for funeral expenses and the loss of income coming into the household. When calculating the compensation for the death of a loved one caused by medical negligence your solicitor will take into consideration the below factors:
Bereavement damages is the term given to the payment, fixed by law, for the grief and trauma suffered when a loved one dies due to the negligent actions of someone else. Not everyone is entitled to bereavement damages, it is usually restricted to the husband, wife or civil partner of the deceased. Other circumstances in which it may be possible to claim include:
- Unmarried, cohabiting couples who have been in a relationship for more than two years may be able to claim under the Human Rights Act.
- If the person who dies was under the age of 18 and are unmarried, a parent may be able to claim.
The statutory Bereavement Award was increased to £15,120 in May 2020 (up from £12,980). The increased amount is only applicable to the families who have lost a loved one on or after 1st May 2020. Those making a claim for a loved one who died prior to this date will receive the old amount of £12,980.
If your claim is successful the statutory Bereavement Award is paid by the defendant or their insurance company.
Pain and suffering
The pain and suffering experienced by the deceased before they passed away, is considered by the courts when quantifying the claim. However, as most deaths caused by medical negligence, involve a short illness or sudden death, the amount of compensation for pain and suffering is limited.
Funerals can cost thousands of pounds, and if the deceased did not have insurance in place to pay for this, this is a huge expenditure for the family left behind. It is therefore possible to factor in compensation for funeral costs as part of the claim.
Loss of earnings
The current and anticipated loss of earnings from the deceased will be taken into consideration when calculating your claim. If the deceased was the main breadwinner in the household and there are a number of dependants that relied on their salary, the consequences can be severe. Consequently if you have had to give up work to look after dependents following the death of a spouse, your loss of income will also be taken into consideration.
Loss of benefits
Loss of benefits such as pension contributions may also be taken into account when calculating the value of the claim.
If the loss of a loved one has meant that you now have to pay for additional childcare, this could also be factored into the final compensation amount.
After the death of a loved one, especially in instances when the death was sudden, counselling can be extremely beneficial to family members to help them come to terms with the death and to get back to their normal way of life. Private counselling can however be expensive, and NHS waiting lists are often long.
How much compensation can I get?
The average payout for medical negligence resulting in death depends on the individual circumstances of each case. There is not one set amount that would apply to every single case. As mentioned above variables such as current and future loss of income, pain and suffering, childcare costs, loss of benefits and funeral expenses, are all taken into account when calculating the settlement amount.
What is an inquest into cause of death?
When someone dies, and the cause of their death is unclear, an inquest will be held to confirm what factors led to the death. An inquest will be conducted by a coroner, who will undertake an investigation into the facts of the death to determine, who has died, where they died, when they died and how they died. This will allow the coroner to reach a conclusion as to the cause of death.
Whilst a coroner will not be looking to establish blame, the investigation process will often highlight areas of substandard treatment that may constitute negligent treatment.